1 This is the second annual review of a continuing detention order made under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) by Corboy J on 23 January 2013: Director of Public Prosecutions v West

3 The hearing of this review was originally listed to be heard on 16 March 2015, however further material was required. The hearing was adjourned to 30 April 2015 to enable a community supervision assessment report to be obtained. That hearing was then adjourned part heard so that an addendum community supervision assessment report could be provided which specifically addressed the issue of GPS testing in the Warburton community.

4 On this review Mr West did not dispute that he remained a serious danger to the community. All of the expert evidence supported that conclusion. The issue was whether Mr West could be released into the community on a supervision order with conditions that would adequately protect the community from the risk that he would commit further serious sexual offences.

5 I am not satisfied on the available evidence that adequate protection of the community could be ensured by releasing Mr West on a supervision order. Accordingly, I expressly decline to rescind the continuing detention order. These are my reasons for coming to that conclusion.

6 Mr West's personal history and his history of offending were detailed by Corboy J in Director of Public Prosecutions v West [2013] WASC 14 [4] [17].

7 On 30 May 2014, McCann DCJ sentenced Mr West to 2 years' imprisonment, with parole eligibility, in respect of sexual penetration of a child which occurred on 5 April 2001: The State of Western Australia v West [No 2] [2014] WADC 79. That sentence expires on 30 May 2016. Mr West's application for release to parole was denied by the Prisoners Review Board on 21 May 2015.

8 Section 29(2) of the DSO Act provides that annual reviews are to occur as soon as practicable after one year has elapsed from the time the person was first in custody on an order under the Act and after every year thereafter. The Act does not make any provision for the review to be delayed or deferred where the person is sentenced to a term of imprisonment after the order is first made. Accordingly, in my view, the Act requires a review now, notwithstanding that Mr West is a serving prisoner. That position is implicitly accepted by the DPP by making the application for a review.

9 This review was not academic. It had practical consequences for Mr West. In the event that he was found suitable for parole in respect of his current sentence he could not be released unless the continuing detention order under the DSO Act was rescinded. Even though parole has been denied the review was important in assessing the progress of treatment and what options should be pursued to maximise the possibility of release on a supervision order in the future.

10 At the hearing of this review the DPP tendered a book of materials. There was no objection to the tender. In addition to historic materials, the book included the following:

(1) a psychiatric report by Dr Gosia Wojnarowska dated 8 March 2015;

(2) a treatment progress report by Dr Tara Yewers dated 25 February 2015; and

(3) a community supervision assessment by Ms Sheree Hahn. a senior community corrections officer with the Department of Corrective Services dated 28 April 2015.

11 The applicant called the witnesses who produced these reports to give oral evidence.

12 Mr West elected not to give or adduce any evidence on the application.

13 Dr Wojnarowska has assessed Mr West in the past. In 2012, she concluded that the risk assessment tools that she had applied had indicated that Mr West was at a high risk of reoffending if released into the community. Dr Wojnarowska administered actuarial tests and conducted an interview with Mr West for the purpose of this annual review.

14 Since Mr West's last annual review, he has completed an Intensive Sexual Offender Treatment Programme (ISOTP). Dr Wojnarowska noted that Mr West now accepts that he has offended and realises the inappropriateness of his past behaviour. However, his insight into his offending remains limited. Dr Wojnarowska said that Mr West's psychopathic traits were not likely to improve. In light of that, she considered that his risk could only be effectively managed through appropriate external controls. Mr West does not recognise that alcohol is a risk factor for reoffending because he states that he would not drink if released. Dr Wojnarowska considered that to be very unrealistic. Indeed, Mr West had only a very simplistic plan as to how he would avoid reoffending.

15 Dr Wojnarowska noted that Mr West has made some gains in his ISOTP, including acknowledgement that he committed offences, partial acceptance of responsibility and some development in his insight and selfawareness. She considered that, given Mr West's modest cognitive abilities and demonstrated lack of insight, Mr West is not likely to benefit from further treatment in custody. Indeed, she said that the gains he has achieved may be lost and Mr West could become institutionalised with further incarceration. Despite that, Dr Wojnarowska concluded that Mr West remains a high risk of sexual reoffending.

16 Dr Wojnarowska recommended supportive counselling in the areas of problem solving and day to day management of emotions. She stressed that close supervision would be the most important aspect of Mr West's community management if subject to a community supervision order. Such supervision should include strict curfew conditions, monitoring Mr West's whereabouts with a GPS tracking device, restriction to attend places that sell alcohol and frequent random urinalysis tests.

17 In relation to a proposal by Mr West to live in Warburton, Dr Wojnarowska had some concerns. Firstly, Warburton's small size would restrict Mr West's movements. This was particularly so given the prohibitive conditions which would likely be associated with release. Secondly, many young people reside in Warburton which would mean that Mr West could not attend many areas beyond his house. Most community centres would be out of bounds and this would severely limit his opportunities for constructive activity. Thirdly, one of Mr West's victims currently resides in Warburton. Fourthly, a major concern was that Mr West would become bored given the scarcity of employment opportunities. Boredom is a risk factor as it could lead to drinking, which has precipitated his offending in the past. Fifthly, local police are 'on-call' outside of hours rather than actually being on shift. That effectively means that any curfew or GPS breaches may not be able to be responded to quickly.

18 Ultimately, Dr Wojnarowska believed that Mr West could be managed on a supervision order but that Warburton was not the right environment. Rather, Mr West requires an environment which offers employment opportunities and a high degree of supervision and structure.

19 In crossexamination Dr Wojnarowska agreed that Mr West had learnt all that he could in a custodial setting and that further incarceration was unlikely to produce additional treatment gains. She said that there was a risk of institutionalisation if Mr West was not released and that he would regress such that treatment gains made to date would be lost. It would become increasingly harder for him to adjust to life outside prison the longer he was incarcerated. There was also a risk that he may develop negative attitudes towards authority.

20 Dr Yewers is a counselling psychologist who works for the Forensic Psychological Service of the Department of Corrective Services. For the purposes of preparing the report for this review, she interviewed Mr West and also consulted with Mr West's treating psychologist.

21 Mr West commenced an ISOTP on 11 February 2014. That was supplemented by individual sessions to cover material Mr West missed while attending the hearings for his Kalgoorlie District Court matter. Mr West completed the ISOTP and individual sessions on 22 October 2014.

22 Mr West was observed to hold rigid stereotypes about women and sexual entitlement which were considered by the facilitators of the ISOTP to underpin his sexual offending. Dr Yewer noticed in her interview that while Mr West accepted that it was his responsibility not to engage with young people in the way that had occurred in his offending, he still had some cognitive distortions in that he blames others for his actions. However, he accepted some responsibility for his offending in that he recognised that he could actively avoid placing himself in high risk situations. His selfmanagement plan involved living in a dry community and 'going bush' when events that are attended by young people come to town. He considered that reconnection with his culture and family would have a protective quality. However, the facilitators noted that these same factors were in place when he previously offended.

23 In cross-examination, Dr Yewers stated that 'Whether he has made enough gains (such) that he can manage in the community is questionable in my opinion' (ts 356). However, she accepted that there was little likelihood of further gains being made in a prison environment. Mr West has a very limited capacity for insight and has quite rigid, concrete thinking patterns. He is ambivalent about having to stop using alcohol and ambivalent about taking responsibility for his offending.

The community supervision assessment report - Ms Hahn

24 Ms Hahn's report considered the suitability of proposed accommodation. Mr West was interviewed by Ms Hahn by video link on 24 March 2015 and 2 April 2015. Mr West proposed to return to his home community of Warburton to reside with his immediate family if released. His return was approved by the community, as confirmed by the Community Chairman.

25 Mr West advised that if released in Warburton he would live with his immediate family at their home. Ms Hahn spoke to Mr West's mother and sister by telephone and was informed that the family supported him residing at the house. A Warburton Community Development Advisor told Ms Hahn that children, male and female, of all ages, starting from infants, both family and nonfamily members frequently visit the proposed residence. The report considered several alternative proposed accommodation arrangements in other areas. None of those were appropriate.

26 Warburton is a dry community. There is a MultiFunctional Police Facility in Warburton. However, officers are not rostered throughout the night. Furthermore, Warburton police service other communities up to 250 km away. Ms Hahn reports that Kalgoorlie Adult Community Corrections currently provide support, guidance and monitoring for adults and juveniles who are subject to community based sanctions. Kalgoorlie Adult Community Corrections staff travel to Warburton at least monthly. Due to the layout of the Warburton community, Mr West would always be within 500 to 1,000 metres of most of the community's facilities and home residences at any one time. Urinalysis facilities are not available within the Warburton community. However, random breath testing can be facilitated by the Warburton Police to monitor alcohol restrictions.

27 The Warburton Community Development Advisor told Ms Hahn that due to the limited employment opportunities available within the Warburton community, Mr West would unlikely have access to paid employment. Therefore, if Mr West was released on supervision, he would rely on government benefits.

28 One of Mr West's victims resides in the Warburton community. Her attitude to his release into the community could not be ascertained. A no contact condition was recommended by Ms Hahn. However, given Warburton's small size, such a condition could prove to be futile. Mr West would almost certainly come into contact with that victim, either intentionally or unintentionally.

29 Another concern which Ms Hahn raises is that the Warburton community is surrounded by vast bushland. This would create difficulty in accurately tracking Mr West's movements and apprehending him, if that was necessary.

30 Mr West did raise Kalgoorlie as a secondary option. He had made an application for public housing but the Department of Housing had adopted a policy that public housing would not be made available to people on a supervision order under the DSO Act. The rationale for this policy was unknown. In any event, Mr West had no known supports in Kalgoorlie and had raised his own concerns about the availability of alcohol in that town.

31 An addendum community supervision assessment report dated 13 May 2015 which specifically addresses the issue of GPS testing in the Warburton community was subsequently provided. That report details preliminary GPS tracking testing which was undertaken on 28, 29 and 30 April 2015 at Mr West's proposed residence. The testing indicated that there was unreliable mobile telephone network coverage which prevented ongoing GPS tracking. Subsequent testing was completed between 4 and 7 May 2015 which showed that GPS tracking was not possible throughout the Ngaanyatjarra Lands and in particular whilst in the Warburton community. Ms Hahn concludes that GPS tracking of Mr West would not be possible in the Warburton community.

32 It is clear on the evidence that Mr West remains a serious danger to the community. This was not disputed on the hearing. The issue was whether the risk of reoffending can be adequately managed in the community on a supervision order.

33 Mr West remains at high risk of reoffending. The factors that contribute to that risk include psychopathic traits that are not likely to improve over time. Mr West has gained some insight into his offending and to relevant risk factors, however his ability to selfmanage is limited. Accordingly any plan to release him into the community needs to involve a high level of external control. In practical terms this means regular and constant monitoring, both by personal contact and GPS. The monitoring would need to be effective in controlling any relapse into alcohol use. It is also desirable that there be opportunities for employment to avoid the risk of boredom.

34 The need for suitable accommodation is not simply about housing. Any place of residence needs to be at a location where controls to prevent the risk of reoffending can be put in place and adequately managed. The place that Mr West has proposed that he live is with his mother in Warburton. It is understandable that Mr West wishes to return to his home country and there may be advantages in him doing so in terms of having family support. However, in very many other respects the proposed accommodation is unsuitable. It is in close proximity to places where children reside and congregate. GPS monitoring is not possible at Warburton and thus there would be no practical way of monitoring Mr West's movements in the community. Limited police resources would make it practically impossible to control Mr West's movements, use of alcohol and interaction with children.

35 While Dr Wojnarowska suggested that it may be possible to effectively supervise Mr West in a larger regional centre such as Kalgoorlie, no accommodation is presently available in that town. In the absence of suitable accommodation an assessment of the viability of conditions to restrict movement, access to children and access to alcohol cannot be made.

36 I am satisfied that Mr West remains a serious danger to the community. I am also satisfied that his risk of reoffending cannot, at present, be adequately managed if he is released on a supervision order. I am satisfied that there are no conditions that could be imposed at present that would reduce to an acceptable level the risk that Mr West could reoffend.

37 For those reasons, I expressly decline to rescind the continuing detention order. In doing so I recognise that it is likely that Mr West has made as much progress as is possible in a prison environment. It may well be that further incarceration will result in him being institutionalised and that gains made to date will be lost. That is unfortunate but it cannot justify release on a supervision order if such an order could not adequately protect the community.