Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- ITALIANO [2008] WASC 297

Criminal law and procedure - Dangerous sexual offender application - Appellant found to be a serious danger to the community - Continuing detention order made - Whether the primary judge erred in making this finding - Turns on own facts

Dangerous Sexual Offenders Act 2006 (WA)

Batistatos v Road Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256

Director of Public Prosecutions (WA) v GTR [2008] WASCA 187

Director of Public Prosecutions (WA) v Mangolamara [2007] WASC 71; (2007) 169 A Crim R 379

Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297

House v The King [1936] HCA 40; (1936) 55 CLR 499

McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121

Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201

Woods v Director of Public Prosecutions (WA) [2008] WASCA 188

1 PULLIN JA: The primary judge found the appellant to be a serious danger to the community and made an order under s 17(1)(a) of the Dangerous Sexual Offenders Act 2006 (WA) for an indefinite term for control, care and treatment. The appellant appeals against the order.

2 The primary judge's finding, pursuant to s 17(1) of the Act, that the appellant was a person who was a serious danger to the community was made after his Honour concluded, pursuant to s 7(1), that he was satisfied that there was an unacceptable risk that if the appellant were not subjected to a continuing detention order, the appellant would commit a serious sexual offence. Section 17(1) refers to the court making a finding that a person is a serious danger to the community. However, s 7(1) merely says that the court has to be 'satisfied' that there is an unacceptable risk that if the offender were not subject to the order, they would commit a serious sexual offence. Section 7(1) does not expressly state that satisfaction is in the form of a finding of fact. However, in Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297; Wheeler JA at [66], Le Miere J agreeing (and with whom I agree), referred to this step as amounting to a 'finding'. Her Honour said:

In my view, once the court has found an unacceptable risk in the sense that I have described, the finding of serious danger to the community inevitably follows.

3 The conclusion that this step involves a finding is supported by s 7(2) that states that the court's satisfaction has to be based on 'acceptable and cogent evidence' and 'to a high degree of probability'. Section 7(3) lists nine factors to which the court must have regard in making the ultimate finding that a person is a serious danger to the community, and s 7(3)(j) adds that regard must be given to 'any other relevant matter'.

4 A finding of fact that there is an unacceptable risk, is an evaluative and predictive finding of fact. In Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201, the court referred to testators' family maintenance legislation and the so-called 'jurisdictional issue' which involves determining whether a testator has made 'adequate' provision for a person's proper maintenance, education and advancement in life. The court said that such a determination involved making a value judgment in much the same way as a primary judge assesses the quantum of damages for pain and suffering and for loss of amenity of life but that nevertheless what is involved is a question of 'objective fact to be determined by the judge at the date of the hearing' (211). This was described as a decision of an 'evaluative character' (210). There was consideration of the task an appellant faces on appeal when challenging such a finding. Mason CJ, Deane and McHugh JJ (at 212) referred to the fact that Kirby P had held in other proceedings that 'principles that govern appellate review of discretionary judgments should apply'. Reference was also made to House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505. Mason CJ, Deane and McHugh JJ at 212 went on to state that 'In our view, this is the correct approach'. Similarly, in Batistatos v Road Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256, Gleeson CJ, Gummow, Hayne and Crennan JJ referred to the fact that a conclusion that there had been an abuse of process did not involve the exercise of a discretion. Their Honours at [7] observed that reaching such a conclusion was sometimes described as the exercise of a 'discretion' and then said that the use of that term:

[I]ndicates no more than that, although there are some clear categories, 'the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse'.

5 Their Honours referred to Gaudron and Gummow JJ's reasons for decision in R v Carroll [2002] HCA 55; (2002) 213 CLR 635, 657 where their Honours said at [73]:

It does not indicate that there is a discretion to refuse a stay if proceedings are an abuse of process or to grant one if they are not. However, as with discretionary decisions, properly so called, appellate review of its exercise look to whether the primary judge acted upon a wrong principle, was guided or affected by extraneous or irrelevant matters, mistook the facts, or failed to take into account some material consideration.

6 The position therefore is that the primary judge made a finding of fact when he satisfied himself that there was an unacceptable risk as defined in s 7(1). However, because the decision was predictive and evaluative, and because minds may differ as to whether the finding should or should not be made based on a consideration of the factors listed in s 7(3), the task of a person appealing against an order made under s 17(1) as a result of such a finding, is to demonstrate error. Error must be demonstrated in the same way that it is demonstrated in relation to a discretionary judgment. It is necessary to show either that the primary judge had acted upon wrong principle, was guided or affected by extraneous or irrelevant matters, mistook the facts, failed to take into account material considerations, or that the finding was so unjust and unreasonable that although the error made could not be detected, the court should infer that such an error was made. See House v The King, 504 - 505.

7 The ground of appeal does not allege that the primary judge acted upon wrong principle, was guided or affected by extraneous or irrelevant matters, mistook the facts or failed to take into account any material factor. The ground must therefore be understood as alleging that the finding that was made was manifestly unjust or unreasonable.

8 The trial judge at [80] of his reasons made the findings that the appellant was evasive about his sexual proclivities, that he denied or minimised his offending, that his attitudes over the years had not significantly changed, that he demonstrated a continuing propensity to commit serious sexual offences by reason of his lack of self-awareness and an inability or unwillingness to control his actions in response to his deviant fantasies, that his history of sexual offending revealed an entrenched pattern of behaviour and that he had a significant criminal record of serious sexual offending against five vulnerable young victims. The trial judge also held that the opinions of Dr Wojnarowska and Dr Wynn-Owen should be given significant weight but in reaching his ultimate finding (the finding which is under challenge) he set the opinions to one side. The evidence of the psychiatrists is referred to in Buss JA's reasons. The trial judge said at [80]:

The assessments of the psychiatrists aside, the evidence establishes to my satisfaction that there is a very substantial risk that Mr Italiano will commit a serious sexual offence if not subject to a continuing detention order or a supervision order.

At [81] of the trial judge's reasons, his Honour made the finding that he was satisfied to a high degree of probability that there was an unacceptable risk that the appellant would commit a serious sexual offence if not subject to a continuing detention order or a supervision order. That resulted in his Honour finding that the appellant was a serious danger to the community. There is nothing in the reasoning of the trial judge which reveals that his decision was unjust or unreasonable. The findings he made were open on the evidence. As a result, the appeal should be dismissed. Buss JA rejected the submissions made by counsel at the hearing of the appeal. I agree with Buss JA's reasons for rejecting those submissions.

9 Having made the necessary findings of fact, the trial judge then went on to consider the order that he would make. The choice was between making a continuing detention order or a supervision order. Both examining psychiatrists had said that the appellant should undergo an Intensive Sex Offender Treatment programme which involves 'in group' sessions. The assumption seems to be that bringing together a group of men who have a sexual interest in children for the purpose of 'exercises and discussions' (see the trial judge's reasons at [84]) will result in a cure for, or the management or diminution of, the offender's unnatural interest. During the hearing of this appeal, counsel were asked whether in the substantial amount of material provided to the court, there was anything suggesting that there was any scientific basis for this assumption. The court was referred to two articles. The first was entitled 'Sex Crime Recidivism: Evaluation of a Sexual Offender Treatment Program' by Robert Schweitzer and Jonathan Dwyer (2003) published in the Journal of Interpersonal Violence 18(11) pages 1292 - 1310. The conclusion of the authors was that:

[I]in the present study it may be concluded that completion of the SOTP does not have a measurable impact upon recidivism over a one year follow up period. This result must be interpreted with caution, as it may be due to, for example, the relatively short follow up time for most re-offenders. Examination of data from the SOTP program over a longer period may indicate the presence of a benefit from the treatment intervention.

10 The Sex Offender Treatment Programme under study by the authors was a programme which involved a phase utilising group therapy.

11 The other reference made by counsel was to a report to the Criminology Research Council dated December 2006 by Professor Bernadette McSherry (Louis Waller Chair of Law, Monash University), Associate Professor Patrick Keyzer (University of Technology Sydney, Faculty of Law) and Professor Arie Freiberg (Dean, Monash University, Faculty of Law) entitled 'Preventative detention for "Dangerous" Offenders in Australia; A critical analysis and proposals for policy development'. This report included a section dealing with sex offender treatment programmes. The authors say that:

[M]any programmes reflect a cognitive-behavioural treatment approach delivered by individual and/or group therapy. This approach focuses on changing sexual behaviours, modifying any cognitive distortions and assisting offenders to overcome social difficulties.

There has been little research that systematically evaluates treatment programmes and no definitive results regarding the efficiency of them (Lievore 2005: 296). However the prevailing view, supported by meta-analyses (see for example Hall 1995) support their continued refinement, development and implementation.

Part of the problem with measuring the efficiency of treatment programmes appears to be caused by the low base rate of sex offender recidivism. A review of studies examined recidivism rates by Karl Hanson and Monique Bussière (1998) suggested that only 13.4% committed a new sexual offence within four to five years. This makes it difficult for researchers to find a significant treatment programme.

14 In McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121, the court considered s 98(1) of the Sentencing Act 1995. This provision authorised the primary court to order an offender to be imprisoned indefinitely, which, in turn, involved consideration of whether or not the offender would be a 'danger to society'. A report in that case from the 'Sex Offender Treatment Unit' had been signed by a social worker, and referred to interviews with the appellant and other persons. It concluded that the appellant 'is considered to present a high risk of reoffending in a sexual manner'. The report stated that upon sentencing the appellant would be reassessed by the Sex Offender Treatment Unit to determine what would be the most appropriate therapeutic options for him given his response to previous treatment. The report acknowledged that there 'may' be some medical means of reducing the risk but there was no expression of view about what such treatment may be. Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at [27] referred to the report and the assessment that the appellant 'is considered to present a high risk of reoffending in a sexual manner'. Their Honours also referred to the statement in the report that the appellant would be reassessed to determine the most therapeutic options for him. Their Honours then went on to observe that the report 'did not offer any opinion about whether such treatment would be effective'. Because there was no such opinion, their Honours concluded that it was apparent that the report provided no basis for predicting that the appellant would be a danger to society.

15 In this case, Dr Wynn-Owen, one of the examining psychiatrists, expressed the view that he did not consider paedophilia to be a 'treatable' clinical condition, but saw it as 'part of a person's make-up'. See the trial judge's reasons at [67]. Furthermore, Dr Wojnarowska expressed the

opinion that the appellant's personality characteristics which showed lack of empathy with victims were 'not readily changeable even with the appropriate therapies'. See [63].

16 In the light of those opinions and what may be a lack of scientific foundation for the assumption that group therapy is effective as a treatment, it is somewhat puzzling to see both psychiatrists recommending that the appellant undergo the Intensive Sex Offender Treatment programme. It is also puzzling in view of those opinions that the trial judge should say that the appellant will 'continue to be a serious danger to the community until his propensity ... is successfully treated' [83].

17 It is not necessary to say any more, because the ground of appeal challenges only the finding of unacceptable risk and does not challenge the trial judge's decision to make a continuing detention order once the finding of unacceptable risk had been made. The trial judge's observation at [83] was made in respect of the appropriate order. However, when the continuing detention order comes up for review under Part 3 of the Act, the subject will then have to be addressed.

18 BUSS JA: The primary judge, Blaxell J, found the appellant to be a serious danger to the community within s 7 of the Dangerous Sexual Offenders Act 2006 (WA) (the Act). His Honour ordered that the appellant be detained in custody under s 17(1)(a) of the Act for an indefinite term for control, care and treatment. The appellant appeals against the making of that order.

The appellant's antecedents before his offending

19 My recitation of the appellant's antecedents before his offending is taken from the learned judge's reasons [13] - [18].

20 The appellant was born in Italy in 1946. At the age of 5 years he emigrated to Australia with his family. He was the eldest of nine children and received a reasonably strict upbringing. His father was a strong disciplinarian who insisted on a good work ethic within the family. As a result, the appellant, as a child, had little time or space to play or express his emotions.

21 The appellant experienced difficulties with his early schooling in consequence of his inability to speak English. He was bullied because of his ethnic background. The appellant ceased his education at the age of 13 years and commenced an apprenticeship as a carpenter.

22 The appellant's main focus in life became his work and other physical activities, for example, martial arts and boat building. He was employed in a variety of occupations including professional shooting, an earthmoving business and farming.

23 During his teenage years, the appellant did not have any girlfriends and did not consume alcohol. When he was 18 years of age his parents arranged for him to become engaged to a girl whom he had never met. The engagement was terminated, and at the age of 19 years he met another woman who became his wife one year later. His first sexual experience was with his wife after their marriage.

24 The appellant and his wife lived together for about 27 years. The marriage produced three children. Although the appellant and his wife had a normal relationship during the early part of their marriage, there was almost no sexual contact between them during their last 10 years together. The marriage came to an end upon the appellant's conviction for his first sexual offence.

25 In 1979, the appellant suffered a serious back injury in a motor cycle accident. This injury interfered with his capacity for work and, eventually, he received a disability pension. Nevertheless, he continued to work, to the extent of his capacity, in various part-time handyman positions.

The appellant's history of sexual offending

26 The appellant's history of sexual offending is recorded in detail in the learned judge's reasons. It is convenient to reproduce his Honour's comprehensive summary:

[The appellant] was first charged with sexually offending against young girls in 1994 when he was indicted on one count of unlawful and indecent assault, and four counts of sexual penetration allegedly committed on two sisters aged 9 and 11 years respectively.

The relevant background to these charges was that [the appellant] and his wife had become friendly with the parents of the two girls in about 1990. The father of the children was frequently away from home working on oil rigs in Indonesia, and [the appellant] often assisted the family by doing odd jobs around their house. The friendship between the two families was such that they also often holidayed together.

[The appellant] entered pleas of not guilty to all of the charges against him and at trial was convicted of only one offence of digitally penetrating the elder sister (the first victim).

That offence was committed near Carnarvon in late 1992. The circumstances were that the [appellant's] family and the first victim's family were travelling together in two vehicles on a holiday to Coral Bay. They stopped overnight at a station property and the two young sisters went to the showers which were some distance away from where the group were accommodated. When the two girls came out of the showers, [the appellant] persuaded the first victim to go with him to a shearing shed. There he told her to bend over which she did. He then pulled down her lower clothing and penetrated her vagina with his finger from behind. The penetration was sufficiently forceful to cause bleeding. When [the appellant] was sentenced some 18 months later, the sentencing judge noted that the effects on the first victim were 'still very bad'.

On 20 April 1994, [the appellant] was sentenced to 3 years' imprisonment for the offence against the first victim and made eligible for parole. Towards the end of that term of imprisonment he was charged with a second group of offences comprising five counts of unlawful indecent assault, and four counts of sexual penetration allegedly committed on a 13-year-old girl (the second victim) during 1991 and 1992. On 12 August 1997, [the appellant] pleaded guilty to two offences of sexual penetration, but not guilty to the remaining charges. The Crown accepted those pleas in satisfaction of the indictment.

The circumstances surrounding the offences committed on the second victim had remarkable parallels with those in respect of the first victim. For a period of approximately two years up until the first offence against the second victim, [the appellant] and his wife had been very friendly with her parents. The two families sometimes went on holidays together, and [the appellant] frequently visited the second victim's house (on some occasions when she was home alone).

It is clear from the transcript of proceedings that the two pleas of guilty entered by [the appellant] were negotiated pleas and that he did not dispute certain allegations of prior sexual misconduct (not the subject of charges) which were indicative of his relationship with the second victim.

This prior sexual misconduct had commenced approximately six months before the first offence and at a time when the two families were preparing for a joint camping trip to a station property near Kalgoorlie. Prior to departing Perth, the second victim accompanied [the appellant] to his house where his wife was packing for the holiday. While driving to the house, [the appellant] asked her numerous questions of an intimate sexual nature concerning her periods, whether or not she was on 'the pill', and whether she had ever engaged in sex. He also said that he knew a girl who had a lump in her breast, and suggested that the second victim should show him her breast if she ever had any concerns of a medical nature.

Some days later while the two families were on the camping holiday near Kalgoorlie, [the appellant] entered a bedroom where the second victim was sleeping with her sister. He went to the second victim and kissed her with his tongue inside her mouth. He then left her and went over to the sister's bed where he kissed the sister.

During the months that followed, [the appellant] often visited the second victim's house, and occasionally she was there alone. On some of those occasions he asked her to go with him to her bedroom and to shut the door, but she rejected these suggestions.

The first offence against the second victim was committed in January 1992 only two days after she had turned 14 years of age. The two families were yet again on a camping holiday at the same station near Kalgoorlie. [The appellant] invited the second victim to accompany him in his four wheel drive vehicle on a short trip to collect food from a freezer.

While on the return journey, [the appellant] pulled up at the side of the road and told the second victim to get out of the vehicle. She did as she was told and when they were both standing outside the vehicle he ordered her to bend over, which she did. He then pulled her shorts and underpants down to her ankles and made her bend over further so that her hands were touching the ground. [The appellant] then lowered his own trousers and penetrated the second victim's vagina with his penis from behind. It was a forceful penetration which caused the second victim's vagina to bleed.

Subsequently, [the appellant] said to the second victim that she was not to tell anyone about 'our little secrets'. This was said in such a way that the second victim took it to be a threat. (The prosecution also alleged that [the appellant] later made a more specific threat that he would hurt the second victim's family, but this allegation was denied by his counsel).

The second offence against the second victim was committed in September 1992. [The appellant] took the second victim and her brother on a drive in his vehicle to Baldivis. On the way, [the appellant] stopped at a service station and asked the brother to wait there on some pretext. He then drove the second victim to a nearby bushland area, where he stopped the vehicle and removed her lower clothing. He then penetrated her vagina with his penis, fondled her breasts, and kissed her on the mouth. She was an unwilling participant, and he was angry with her because she would not open her mouth.

When [the appellant] returned with the second victim to the service station her vagina was bleeding profusely and she needed to stem the flow. She then suffered the embarrassment of asking her brother for money to buy tampons (on the pretext of her periods). The brother had no money, so the second victim suffered the further humiliation of obtaining the money from [the appellant] (who was reluctant to assist).

Thereafter, the second victim hid in her bedroom whenever [the appellant] visited her family's home. She did not disclose the offences to her parents until [the appellant] was convicted of the offence against the first victim (and as I understand the facts, as a result of that event). On 15 August 1997, [the appellant] was sentenced to a total of 7 years' imprisonment for the offences against the second victim and made eligible for parole.

In the meantime, [the appellant] had been released to parole in April 1996 in respect of his first period of imprisonment. While on parole, and while the charges in respect of the second victim were still pending, he committed two further offences of indecent dealing against a 7-year-old girl (the third victim).

The background to these offences was that the third victim was one of five children in a family with whom [the appellant] had been friendly over a six month period as a result of them all attending the same church. The first offence was committed in [the appellant's] vehicle and involved him placing his hand up the third victim's skirt and rubbing her genital area on the outside of her underwear. The second offence was committed later the same day while the third victim and her younger sister were playing on a swing. While the third victim was hanging upside down on the swing, [the appellant] once again rubbed her genital area on the outside of her underwear.

On 29 January 1998, [the appellant] pleaded guilty to each of the two offences against the third victim. He was sentenced to terms totalling 18 months' imprisonment which were made concurrent with the previous terms of imprisonment he was then serving. He was also made eligible for parole.

After [the appellant] returned to prison in 1998 he became acquainted with a woman (Ms G) who was introduced to him by another prisoner. Ms G was separated from her husband and had the care of two young daughters (the fourth and fifth victims). Somewhat surprisingly, a relationship developed between [the appellant] and Ms G as a result of regular telephone conversations, and her frequent visits to see him at the prison. When [the appellant] was released to parole in June 2000, he stayed with Ms G and her daughters on weekends, and then for a period of two weeks (in breach of his parole conditions).

Ms G encouraged [the appellant] to develop a paternal relationship with her two daughters, who came to look upon him as a father figure. It is also relevant to note that throughout the time that [the appellant] was on parole, he had a very active sexual relationship with Ms G. Nevertheless, during September and October 2000 (commencing approximately 11 weeks after being released to parole) he committed a series of sexual offences against the two young girls who were then 10 years and 6 years old respectively.

All of these offences were committed in the course of (and on the pretext of) [the appellant] purportedly carrying out 'massage therapies' on the two children. In respect of the 10-year-old girl (the fourth victim) he was later convicted of five offences involving penetration of her vagina with his finger, tongue and penis, and penile penetration of her anus. In respect of the younger girl (the fifth victim) he was convicted of two offences involving penetrations of her vagina and anus with his finger.

[The appellant] pleaded not guilty to the offences committed on the fourth victim, but was convicted following trial. He then entered pleas of guilty to the two offences against the fifth victim. On 28 March 2002 he was sentenced to a total of 10 years' imprisonment without parole. It is that period of imprisonment which expired on 15 October 2008 [19] - [41].

The application under the Dangerous Sexual Offenders Act 2006 (WA)

27 On 17 July 2008, the Director of Public Prosecutions (WA) (DPP) made application under s 17 of the Act for a continuing detention order or a supervision order in respect of the appellant.

28 The sentences being served by the appellant at that time expired on 15 October 2008. He remained in custody pending the determination of the application.

29 On 17 July 2008, Murray J made preliminary orders under s 14 of the Act. These orders included an order that the appellant undergo examination by the court-appointed psychiatrists, namely Dr G Wojnarowska and Dr P Wynn Owen. The psychiatrists provided written reports that were received in evidence at the final hearing of the application. They also gave oral evidence.

30 There were three issues of substance at the final hearing. First, the validity of the assessments made by Dr Wojnarowska and Dr Wynn-Owen in relation to the appellant. Secondly, whether the learned judge should be satisfied that the appellant was a 'serious danger to the community' within s 7 of the Act. Thirdly, if the appellant was a serious danger to the community, which of the orders contemplated by s 17(1) (that is, continuing detention or supervision) should be made.

31 I will now summarise the relevant provisions of the Act. This summary is taken from the joint reasons of Steytler P and me in Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 [3] - [12].

32 The objects of the Act are apparent from s 4 read with s 7. They are:

(a) to provide for the detention in custody or the supervision of sexual offenders who would otherwise present an unacceptable risk of committing a 'serious sexual offence', as defined in s 106A of the Evidence Act 1906 (WA); and

(b) to provide for continuing control, care or treatment of offenders of the kind referred to in (a).

33 Under s 8(1) of the Act, the DPP may file with the Supreme Court an application for orders under s 14 and s 17(1) in relation to a person (the 'offender') who is under sentence of imprisonment wholly or in part for a serious sexual offence. Section 17 reads:

(1) If the court hearing an application for a Division 2 order [that is, an order under s 17(1)(a) or s 17(1)(b)] finds that the offender is a serious danger to the community, the court may -

(a) order that the offender be detained in custody for an indefinite term for control, care, or treatment; or

(b) order that at all times during the period stated in the order when the offender is not in custody the offender be subject to conditions that the court considers appropriate and states in the order.

(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.

34 Section 18 of the Act provides for the conditions of a supervision order (that is, an order under s 17(1)(b) or s 33(2)(b)) that should be imposed. It reads as follows:

(1) If the court makes a supervision order against a person, the order must require that the person -

(a) report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the person's current name and address;

(b) report to, and receive visits from, a community corrections officer as directed by the court;

(c) notify a community corrections officer of every change of the person's name, place of residence, or place of employment at least 2 days before the change happens;

(d) be under the supervision of a community corrections officer;

(e) not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and

(f) not commit a sexual offence as defined in the Evidence Act 1906 section 36A during the period of the order.

(2) The supervision order may contain any other terms that the court thinks appropriate -

(a) to ensure adequate protection of the community; or

(b) for the rehabilitation or care or treatment of the person subject to the order.

35 Section 7 of the Act deals with the notion of a 'serious danger to the community' that triggers the operation of s 17(1). Section 7(1) reads:

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 [that is, an order under s 17(1)(a) or s 23(b)] or a supervision order [that is, an order under s 17(1)(b) or s 33(2)(b)], the person would commit a serious sexual offence.

36 Section 7(2) of the Act places upon the DPP the onus of satisfying the court of the matters specified in s 7(1). This must be done by acceptable and cogent evidence: s 7(2)(a). The level of satisfaction must be 'to a high degree of probability': s 7(2)(b). In deciding whether to find that a person is a serious danger to the community, the court is required by s 7(3) to have regard to:

(a) any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person;

(b) any other medical, psychiatric, psychological, or other assessment relating to the person;

(c) information indicating whether or not the person has a propensity to commit serious sexual offences in the future;

(d) whether or not there is any pattern of offending behaviour on the part of the person;

(e) any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation program;

(f) whether or not the person's participation in any rehabilitation program has had a positive effect on the person;

(g) the person's antecedents and criminal record;

(h) the 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;

(i) the need to protect members of the community from that risk; and

(j) any other relevant matter.

37 Section 14(1) of the Act provides that if, at a preliminary hearing, the court is satisfied that there are 'reasonable grounds for believing that the court might, under section 7(1), find that the offender is a serious danger to the community, the proper officer of the court must fix a day for the hearing of the application' for a continuing detention order under s 17(1)(a) or a supervision order under s 17(1)(b). Section 14(2)(a) provides that, if the court is satisfied as described in s 14(1), it must order that the offender undergo examinations by two psychiatrists named by it for the purposes of preparing reports, as required by s 37, to be used on the hearing of the application. Extraordinarily, s 14(2)(b) provides that, if the offender is in custody and might otherwise be released before the application is finally decided, or if the offender is not in custody, the court may order that the offender be detained in custody for a stated period. There is consequently a power to imprison a person, who has completed any sentence of imprisonment imposed upon him, only because there are 'reasonable grounds' for believing that he 'might' be found to present an 'unacceptable risk' of committing a serious sexual offence if not subject to a continuing detention order or a supervision order. That is a remarkably low threshold for imprisoning a person solely as a preventative measure.

38 Each psychiatric report ordered pursuant to s 14(2)(a) must indicate the psychiatrist's assessment of the level of 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 and the reasons for that assessment: s 37(2).

39 The Act provides, by pt 3, for annual reviews of a person's detention under a continuing detention order. The first review must be carried out as soon as practicable after the end of a period of one year, commencing when the person was first in custody on a day on which that person would not have been in custody had the order not been made: s 29(2)(a). Subsequent reviews must be carried out as soon as practicable after the end of the period of one year commencing when the detention was most recently reviewed: s 29(2)(b). Applications for review must be brought by the DPP (s 29(1)), although a person subject to a continuing detention order may, with the leave of the court, apply for a review under s 30(1) if he or she is able to satisfy the court that there are exceptional circumstances (s 30(2)). An application cannot be made under s 30(1) until after the detention has been reviewed under s 29(2)(a) (that is, after the initial annual review has been carried out) (s 30(3)). Further provisions in respect of the reviews may be found in s 31, s 32 and s 33.

40 Appeals are provided for by pt 4 of the Act. An appeal is by way of rehearing: s 36(1). Section 36(2) provides that the Court of Appeal:

(a) has all the powers and duties of the court making the decision against which the appeal is made;

(b) may draw inferences of fact, not inconsistent with the findings of the court making the decision against which the appeal is made; and

(c) may, on special grounds, receive further evidence as to questions of fact, either orally in court, by affidavit, or in another way.

41 Section 40 of the Act provides that proceedings under the Act or on an appeal under the Act are to be taken to be criminal proceedings for all purposes. Section 42 deals with applicable rules of evidence.

The proper construction of relevant provisions of the Act

42 In GTR, Steytler P and I considered various issues relating to the proper construction and application of the Act. The issues we considered were these:

(1) Is there any distinction, for the purposes of the Act, between a finding that a person is 'a serious danger to the community' and a finding 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', within s 7(1)?

(2) What constitutes an 'unacceptable risk' in this context?

(3) What is conveyed by the requirement in s 7(2)(b) that the court must be satisfied 'to a high degree of probability'?

(4) Does the word 'may' in s 17(1) mean 'must'; or is there a discretion to do nothing, notwithstanding a finding that an offender is a serious danger to the community?

(5) When considering an application under the Act, is the court entitled, in any case, to have regard to relevant sexual offences committed when the offender was a juvenile; or is this prohibited by s 190 of the Young Offenders Act 1994 (WA) when the period of 2 years referred to in s 189(2) of that Act has expired?

(6) To what extent must a court be guided by psychiatric reports prepared pursuant to s 37 of the Act?

(7) What is imported by the requirement, in s 36(1), that the appeal is to be 'by way of rehearing'?

43 It is unnecessary, in these reasons, to reproduce the decision and reasoning in relation to each of these issues. They are set out in detail in GTR [14] - [65]. I will, however, explain what constitutes an 'unacceptable risk' in this context.

44 In Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297, Wheeler JA said, on the topic of 'unacceptable risk':

In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.

There are four reasons for considering that the meaning outlined above is what Parliament intended by the expression 'unacceptable risk'. The first is that s 7(1) expressly refers to the risk as a risk which exists 'if the person were not subject to [either] a continuing detention order or a supervision order'. That is, Parliament has expressly adverted to the consequences of making a finding, in referring to the type of risk to be guarded against. Second, s 7(2) places upon the DPP the onus of satisfying the court of the matters described in s 7(1) by acceptable and cogent evidence and 'to a high degree of probability'. An onus expressed in that way suggests a task of substantially greater difficulty than that of simply ascertaining whether there is a risk which is real and not remote. Third, s 7(3) sets out a variety of matters to which the court must have regard in determining the related question of whether a person is a serious danger to the community. The list includes factors which suggest that there is some need to balance the interests of the offender against those of the public, or at least that it is permissible for a court to have regard to such matters. Section 7(3)(i), for example, refers to the need to protect members of the community from 'that risk' (suggesting that the public may not need protection from every risk) while s 7(3)(j) refers broadly to 'any other relevant matter'.

Finally, it is to be noted that many of the provisions of the Act are similar to, although not identical with, the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). Section 13(2) of that Act referred to 'an unacceptable risk that the prisoner will commit a serious sexual offence'. It was argued in Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575 that such a test was devoid of practical content. In rejecting that contention, Gleeson CJ at [22] and Callinan and Heydon JJ at [225] referred to the decision of the High Court in M v M [1988] HCA 68; (1988) 166 CLR 69, a case which dealt, as Gleeson CJ summarised it in Fardon, with 'the magnitude of a risk that will justify a court in denying a parent access to a child'. That is, those members of the High Court who referred directly to the question considered that the legislature had adopted a criterion and a standard appropriate to the balancing of competing considerations. Fardon was decided prior to the enactment of the Act, and it would be expected that Parliament in Western Australia would be aware of the meaning given to that expression in the reasons in Fardon. An examination of Hansard confirms that Parliament was aware of that case: eg Parliamentary Debates, Legislative Assembly, 15 November 2005, 7272 - 7273 [63] - [65].

45 In Woods v Director of Public Prosecutions (WA) [2008] WASCA 188 [85], Steytler P and I expressed our agreement with Wheeler JA's observations.

46 The word 'unacceptable' necessarily connotes a balancing exercise, requiring the court to have regard to, amongst other things, the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition, on the one hand, and the serious consequences for the offender (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order), on the other, if an order is made .

The assessments of the examining psychiatrists

47 Dr Wojnarowska expressed the opinion that the appellant was at a very high risk of sexual reoffending if he were not the subject of a continuing detention order. His written report concludes with comments and recommendations, as follows:

RISK SCENARIOS

[The appellant] is likely to commit similar offences to the ones that he did in the past. The likely victim will be a female child, known to him through the families which he befriended. [The appellant's] behaviour will be motivated to obtain sexual gratification and possibly some degree of intimacy that he has been lacking in his life. The harm to the victim will be both psychological and physical. [The appellant] is likely to offend on the first opportunity of being in the close proximity to an unsupervised child that is known to him. He is not likely to abduct a child. There would be no specific warning signs except for attempted grooming.

SUMMARY

In summary, [the appellant's] offending has been motivated predominantly by his paedophilic interest and to some degree by his personality deficiencies. The destabilising factor was strongly present in the first offence and included marital disharmony and a lack of employment opportunities due to the chronic back pain. The disinhibiting factor for [the appellant] is he being in the presence of a pre-pubertal, female child, which he befriended.

In the author's opinion, [the appellant's] risk of re-offending is currently very high, if not subjected to the Continuous Detention Order.

RECOMMENDATIONS

[The appellant] should undergo Intensive Sex Offender Treatment Program. This type of a program is only available in a prison setting and there are no alternatives to it in the community. The maintenance program, which was previously offered to [the appellant] is of a lesser frequency and intensity and offers very limited supervision. It is possible that on the conclusion of his Intensive Sex Offender Treatment Program, he may be found suitable for pharmacological (antilibidinal) treatment, which has not been discussed at this point in time (Book of Materials 934 - 935).

48 Similarly, Dr Wynn Owen was of the opinion that the appellant was at a high risk of sexual reoffending. He made these recommendations and observations, in his written report, in relation to the monitoring, treatment and supervision of the appellant:

Monitoring

[The appellant's] self report should not be relied on, supervision will need to include contact with those with whom [the appellant] has contact. As he has a history of non-disclosure of offending history all those with whom he has contact should be briefed on his sexual offending history and his past history of misleading and manipulating victim families.

Any report of involvement with families with children, any request from [the appellant] or others for him to have access to families or family homes should result in a reassessment of risk and review of management plan.

Treatment

[The appellant] should complete an Intensive Sexual Offender Treatment Programme. This should address his denial of much of his offending and his reliance on external controls as the only way to reduce his risk of re-offending. He should acknowledge deviant sexual arousal. He should develop non-pathological strategies to cope with stress and recognise his current pathological coping style and its outcomes including his offending behaviour.

It is not currently possible to assess [the appellant's] level of sexual drive as he is unforthcoming about this aspect of his internal world ... Outcomes of SOTP should include honest reporting of his sexual drive, which may potentially assist management and would enable better self-regulation.

It is my opinion that treatment will be hampered by [the appellant's] current involvement in the Sycamore Tree Project. [The appellant] appears to use this as a way of atoning for any misdeed in the past and has possibly made some steps in victim empathy, for other people's victims. He however appears to have made no gains in his empathy towards his own victims, rather it meets his own needs of feeling 'good' and 'needed'. I am also concerned that individual meetings with victims may be being pursued by [the appellant] to secure access to new victims. Continued involvement may serve to undermine progress (and engagement) in SOTP, [the appellant] needs to see self awareness as his treatment goal not feeling good about himself, reinforcing his distorted sense of self, because he is helping others.

Supervision

[The appellant] is not in my opinion currently appropriate for community supervision, he should be required to complete an intensive SOTP above prior to release (Book of Materials 953 - 954).

Some of the learned judge's critical findings and observations

49 The learned judge made various findings and observations on the basis of which he concluded that the appellant was a serious danger to the community in that there was an unacceptable risk that, if he were not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence. The relevant findings and observations are these:

(a) As already noted, I consider that the reports prepared by Drs Wojnarowska and Wynn-Owen pursuant to s 37 should be given significant weight. [The appellant] cooperated with the examination by each psychiatrist notwithstanding that he was evasive about his sexual proclivities and denied the bulk of his offending.

(b) I have before me a number of other psychiatric or psychological assessments which were prepared in the past for the purposes of sentence, or with a view to [the appellant] being treated while in prison. The reports of these assessments show that [the appellant] has always tended to minimise and deny his offending, and that his attitudes over the years have not significantly changed.

(c) The information in these other reports is also indicative of [the appellant's] continuing propensity to commit serious sexual offences by reason of his lack of self-awareness, and an inability or unwillingness to control his actions in response to his deviant fantasies.

(d) The history of [the appellant's] sexual offending reveals an entrenched pattern of behaviour. In each instance, he has targeted and befriended the parents of young female children in order to gain access to his victims. He has also expended considerable effort and time to gain the trust of the parents before manipulating, coercing, or grooming the children into situations where they could be sexually abused. Particularly disturbing aspects of his pattern of offending are the vaginal bleeding caused by his penetrations, and his recklessness in being willing to risk discovery in order to achieve his ends.

(e) The respondent completed an Intensive Sex Offenders' Treatment Programme between August 1999 and May 2000 prior to being released to parole approximately one month later. He then regularly attended a community maintenance treatment programme while at the same time committing serious sexual offences against the fourth and fifth victims. [The appellant] has not completed any further sex offender treatment programme during his latest period of incarceration. He did attend the voluntary Sycamore Tree Programme for seven half days during 2005, but this did not specifically address or treat his sexual offending.

(f) [The appellant's] participation in the Intensive Sex Offender Treatment Programme [SOTP] and subsequent maintenance programme during 1999 and 2000 had no positive effect. He gained a full intellectual understanding of what these programmes were trying to achieve, but at the same time commenced his most recent cycle of offending by targeting the fourth and fifth victims. Although [the appellant] claimed to have benefited from the Sycamore Tree Programme, the examinations by Drs Wojnarowska and Wynn-Owen show that it has had no beneficial impact in respect of his sexual deviancy. In this regard, [the appellant's] current attitudes towards his offending are essentially the same as before.

(g) [The appellant] has a significant criminal record of serious sexual offences committed against five vulnerable young victims. All of these offences were committed after lengthy premeditation, and involved very gross breaches of trust.

(h) The assessments of the psychiatrists aside, the evidence establishes to my satisfaction that there is a very substantial risk that [the appellant] will commit a serious sexual offence if not subject to a continuing detention order or a supervision order. The factors indicative of this risk include his past pattern of offending, the failure of the treatment programmes in 1999 and 2000 to prevent his contemporaneous offending against the fourth and fifth victims, his failure to take the opportunity of participating in a further SOTP during 2006, his unchanged attitudes of minimisation and/or denial of his past offending, his continuing claims that his victims are partially to blame for the culpable conduct that he does admit, and his general lack of remorse. In my view, the only reasonable inference from the combination of these factors is that there is the substantial risk I have referred to.

(i) Implicit in my finding that there is a substantial risk of reoffending is the need to protect members of the community from that risk. The particular members of the community who require protection are young female children whose parent or parents might come into contact with and be befriended by [the appellant] (as well as the parents themselves, who are potential secondary victims). Given [the appellant's] likeable disposition, and his ability to ease himself into close friendships, I consider that there is a need for a very high level of protection.

(j) Of further relevance is [the appellant's] reluctance to reveal his present level of sexual drive and libido. Honest disclosure of his innermost sexual thoughts and proclivities is an essential first step towards successful participation in a further SOTP, and without this there will be little prospect of future treatment gains [80].

50 The sole ground of appeal alleges that the learned judge erred in fact in concluding that there was an unacceptable risk that, if the appellant were not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence. It is then alleged that his Honour ought to have found that, having regard to the cumulative effect of the evidence adduced by the appellant, there was 'a less than high degree of probability' that the appellant would commit a serious sexual offence if he were released from prison.

51 According to counsel for the appellant, the evidence before the learned judge as to the prediction of risk, in the context of predicting the risk that a sexual offender is at a particular level of risk of committing a serious sexual offence, was flawed and unreliable. As a result, there was insufficient evidence to support his Honour's conclusion that there was an unacceptable risk that, if the appellant were not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence.

52 Counsel for the appellant submitted that the appellant had taken action to address the cause or causes of his offending behaviour in order to rehabilitate himself. Counsel relied on evidence from Michael Cockram (ts 179 - 191) and Alan George Forsyth (ts 191 - 196) to the effect that the appellant had participated in a programme called the 'Sycamore Tree Project', and had developed empathy towards the victims of his crimes. It was submitted that Mr Cockram had referred to the appellant's consistent expression of remorse towards his victims (ts 186) and, during his cross-examination, a 'breaking moment' of empathy towards them (ts 188).

53 Counsel argued that the learned judge made these errors of fact:

(a) finding there was a high degree of probability that the appellant was at an unacceptable risk of committing a serious sexual offence; and

(b) failing to accord adequate weight to the evidence of Mr Cockram, Mr Forsyth, Peter Lyndon-Jones and Clarita Sawyer to the effect that the appellant had taken action to address the cause or causes of his offending behaviour in order to rehabilitate himself.

54 Counsel submitted, in the alternative, that if there was sufficient evidence for the learned judge to conclude that there was an unacceptable risk, his Honour should have made a supervision order under s 17(1)(b) of the Act instead of a continuing detention order under s 17(1)(a). This submission was based on evidence adduced by the appellant from Mr Lyndon-Jones in relation to employment (ts 169 - 174) and from Ms Sawyer in relation to pastoral care (ts 174 - 179). This evidence, so it was submitted, was sufficient to make it appropriate for the court to order supervised release.

55 The evidence adduced on behalf of the appellant in support of his argument that psychiatric risk assessment is, in general, flawed, is secondary source material. It is insufficiently detailed and only partly representative of the state of expert opinion. Significantly, it was not put to Dr Wojnarowska or Dr Wynn Owen, the psychiatrists called by the respondent at the hearing before the learned judge.

56 In any event, as Steytler P and I noted in Woods, it is plain from the scheme of the Act that the Parliament has accepted and legislated on the basis that a 'psychiatrist', as defined in s 3 of the Mental Health Act 1996 (WA), has, by virtue of his or her having made a special study of, or having gained and maintained special skill in the practice of, psychiatry, the expertise to examine an offender who is the subject of an application under the Act, and make an assessment of the level of 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 [38]. The statutory scheme in this respect is apparent from s 7, s 14, s 15, s 32 and s 37 of the Act, read with the definition of 'psychiatrist' in s 3 of the Mental Health Act and s 17 of that Act [38]. Further, as Steytler P and I also noted in Woods, it is apparent, from s 37(2) of the Act, that the Parliament contemplated that the examining psychiatrists would analyse and evaluate the relevant risks and express their opinions as to the degree of risk [92].

57 Counsel for the appellant attacked the weight given by the learned judge to the evidence of Dr Wojnarowska and Dr Wynn Owen. In my opinion, there is no merit in this point. It was for his Honour to determine what weight should be accorded to their evidence, and his Honour's reasons, in the context of all the evidence before him, do not reveal any error of fact-finding in this respect. See, generally, GTR [57] - [62].

58 The appellant's counsel also attacked the evidence of Dr Wojnarowska and Dr Wynn Owen on the basis that the interviews they conducted with the appellant were of excessive length. Each interview was of a duration of about three hours. This issue was explored in detail in cross-examination. Dr Wojnarowska accepted, in cross-examination, that, in hindsight, it might perhaps have been better if he had conducted one-hour interviews with the appellant instead of two three-hour interviews (ts 53). However, in re-examination, Dr Wojnarowska said that the appellant appeared to sustain his alertness throughout the interviews and did not show any fatigue or request a break (ts 67 - 68). Dr Wynn Owen said, in cross-examination, that he conducted a three-hour interview rather than three one-hour interviews, in part, for administrative reasons; that is, 'because of the practicalities of getting a time at Casuarina Prison and then being able to get there' (ts 109). He agreed with the cross-examiner that he did not offer the appellant a break during either of the two interviews conducted (ts 111 - 112). However, Dr Wynn Owen also said that the appellant was 'talking quite freely and comfortably and did not seem to be in any distress' during the interviews (ts 111, 112). I am satisfied, on the basis of my review of the evidence of the investigating psychiatrists, that there was no relevant unfairness to the appellant arising from the length of the interviews and that the length of the interviews did not adversely affect the psychiatrists' assessment of him.

59 The appellant's counsel further attacked the evidence of Dr Wojnarowska and Dr Wynn Owen on the basis that each of them made an error in coding the STATIC-99 actuarial instrument. The result of the error was, in each case, the obtaining of a score of 7 rather than the correct score of 6. The errors were explored at length in cross-examination. However, both psychiatrists gave evidence to the effect that the change from a score of 7 to a score of 6 did not alter the resulting prediction of risk based on the instrument (ts 68 - 70, 103 - 104). A score of 6 and above produces the same statistical prediction of high risk. The errors in coding did not reveal or suggest any material misunderstanding of the facts and circumstances of the appellant's offending history. This history is fully set out in the report of each psychiatrist. In addition, the errors were analysed by the learned judge in his reasons at [62], [69], [73], [76] and [78]. It was open to his Honour to find, as he did, that the errors were not significant.

60 Counsel for the appellant referred to the use by Dr Wojnarowska and Dr Wynn Owen of the STATIC-99 instrument, and submitted that '[p]rocedures such as Static-99' have been described as 'experimental'. However, this submission does not embrace the spectrum of current expert opinion on this instrument. Although there has been some judicial criticism in this State of the use of the STATIC-99 instrument, these criticisms have related to its applicability to Aboriginal offenders because of the absence of specific validation in relation to the Australian indigenous population. See, for example, Director of Public Prosecutions (WA) v Mangolamara [2007] WASC 71; (2007) 169 A Crim R 379; Woods [62] - [82]. The appellant's contention has no substance.

61 The learned judge found that the appellant had, in December 2005, declined to participate in a sex offender treatment programme as a result of his participation instead in 'faith-based programmes'. His Honour dealt adequately with the evidence of witnesses called by the appellant in relation to this issue. In particular, his Honour said:

During his most recent period of imprisonment, [the appellant] has not completed any sex offender specific treatment programme [SOTP]. Although he was booked to participate in a SOTP in 2004, that booking was deferred until 2006 because of lack of available programmes. In December 2005 the booking was cancelled altogether when [the appellant] advised that he no longer wished to participate because he had completed a voluntary faith-based programme run by the Prison Fellowship. On 19 November 2007 [the appellant] was reassessed and recommended for a sex offender high intensity programme. However, such a programme was not available prior to the scheduled date for [the appellant's] release from prison.

The voluntary faith-based programme which [the appellant] had completed, is known as the Sycamore Tree Project (STP) and is conducted by the Prison Fellowship. It is a programme which encourages offenders to feel empathy towards victims of crime in general. To this end, victims of crime are brought into the prison to discuss their experiences with the prisoners participating in the programme.

[The appellant] attended the first pilot programme for the STP in 2005 which was conducted on one morning per week over seven weeks. In the course of the programme he met three secondary victims of homicides and one secondary victim of a sexual offence (committed against the woman's sister). There were six prisoners participating including [the appellant], as well as two facilitators (one of whom was the solicitor and former president of the Prison Fellowship, Mr Michael Cockram).

Since completing the STP, [the appellant] has continued to be involved with the Prison Fellowship, and has been very active in creating minor works of art which are sold to raise funds for victims of crime. In this regard, it is clear from the evidence of witnesses called on behalf of [the appellant], that he has maintained the work ethic with which he was imbued as a child. He readily volunteers for tasks which other prisoners are reluctant to perform, and has made himself a key member of the prison chaplain's congregation. He is considered to have a friendly and likeable disposition, and he makes a very favourable impression on those who work on pastoral care within the prison system.

...

It is Mr Cockram's evidence that the Sycamore Tree Programme appeared to have a significant effect on [the appellant's] attitude towards his offending. In this regard there was a 'memorable impact' at one particular session when [the appellant] broke down after hearing the story of the woman who was the secondary victim of a child sex offence. During the three year period since then, [the appellant] has consistently expressed (non-specific) feelings of remorse about his victims, and Mr Cockram has no reason to doubt the sincerity of those statements.

However, Mr Cockram's impressions are contradicted by the psychiatrists who interviewed [the appellant] for the purposes of the reports required by s 37 of the Act. In this regard, it is Dr Wojnarowska's evidence that [the appellant] displayed an inconsistent approach towards both his offending and his victims. He denied that he had ever penetrated the first victim, said that he penetrated the second victim only once, and in respect of the fourth and fifth victims, said that he 'only touched them'.

To the limited extent that [the appellant] was prepared to admit his crimes, he continued to attribute some of the blame to the victims or their families. Although he talked at length to Dr Wojnarowska about his feelings of empathy towards victims generally, he did not appear to be able to identify himself as an offender who had committed crimes against specific victims.

When interviewed by Dr Wynn-Owen, [the appellant] denied all of his offences other than a single offence of sexual penetration against the second victim which he claimed was consensual. Notwithstanding this limited admission, he displayed a lack of empathy towards the second victim by making a jocular remark about her excessive weight.

With regard to the first victim, [the appellant] denied that there was any act of penetration but admitted rubbing her vagina. He implied that this incident had been precipitated by her when she exposed herself while lying naked on a bed. He also said that whenever the first victim's mother answered the front door to him while her husband was away she was 'practically naked'.

Furthermore, [the appellant] specifically denied committing offences against the third, fourth and fifth victims. He also asserted that the fourth and fifth victims were often naked around the house, and that the charge of anal penetration had been made up because 'they'd seen me having sex with their mother from behind' [49] - [58].

62 The learned judge also referred to the appellant's participation in the intensive sex offender treatment programme and subsequent maintenance programme during 1999 and 2000, but noted that it had had no positive effect. The appellant had gained a full intellectual understanding of the object of these programmes but he nevertheless, at the same time, commenced his most recent cycle of offending by targeting the fourth and fifth victims. Although the appellant claimed to have benefitted from the Sycamore Tree Programme, Dr Wojnarowska and Dr Wynn Owen concluded that it had had no beneficial impact in relation to his sexual deviancy. The appellant's current attitudes towards his offending were essentially the same as before [80(f)].

63 The evidence adduced on behalf of the appellant to the effect that he had acquired empathy for his victims was compromised by his subsequent denials, in the course of the interviews with the psychiatrists, of all but one of the offences of which he had been convicted. None of the appellant's witnesses were familiar with his history of offending, other than in very general terms, or with his method of targeting victims or with his risk factors.

64 There was no evidence before the learned judge that the Sycamore Tree Programme is effective in reducing the risk of recidivism among sexual offenders.

65 The learned judge considered whether it was appropriate to make a supervision order instead of a continuing detention order. His Honour evaluated this issue as follows:

[The appellant] will continue to be a serious danger to the community until his propensity to commit sexual offences against young female children is successfully treated. The evidence establishes that the only suitable treatment for [the appellant] is an Intensive Sex Offenders Treatment Programme as conducted by the Department of Corrective Services. At the present time this type of programme only exists within the prison system, and it is not available in the outside community.

I have heard evidence from Tarmala Caple, a forensic psychologist registrar with the Department as to the reasons why there is no community-based Intensive Sex Offender Treatment Programme. According to Ms Caple:

'One of the things with the community is the people that have been convicted of sexual offences in the community usually don't have such a long history of sexual offences. Most people who are recidivist sexual offenders and have the more serious type of sexual offences get prison sentences. So when we have people in the community, they work - a lot of people work or have other commitments and that's why the community programs aren't as intensive. They're often one day a week for two and a half hours. They used to go for between, sort of, five to six months. The program has now been extended to nine months, but the content isn't as intensive and the therapeutic process isn't intensive either, because most people don't have the serious history of sexual offending as the people who are in prison do.'

Ms Caple has also explained that it is a requirement for an Intensive SOTP that the participants transfer to a special live-in unit at either Casuarina or Bunbury Prisons for a period of six months. During each week of that six months:

'It's three full days of in group time and there's also homework that is required. Obviously for people who don't have good literacy skills, there's obviously assistance that can be provided. People will have journals, they'll have work sheets, and people are required to go away into their cells and to think about the exercises and discussions that they're having in the group and to come back and to provide responses to the questions that they've been asked and they've been posed to think about. So it's not just about coming in and sitting in a seat for three days in a group setting, but also going away and thinking about your life, thinking about your history, thinking about your offending behaviour. So it's a very emotionally exhausting process as well.'

It is submitted on behalf of [the appellant] that the failure of the authorities to secure appropriate treatment for him prior to the expiration of his sentence 'is not a price which ought to be paid by the [the appellant]'. Although the rationale of this submission can be readily understood, it ignores the fact that [the appellant's] failure to complete treatment was due to his own action in cancelling his participation in the programme which was booked for 2006. In my opinion, he is [in] no position to complain about the fact that he did not receive any adequate treatment prior to his scheduled date for release.

A further hindrance to [the appellant's] treatment within the prison system has been his continual minimisation and/or denial of his offending behaviour. Up until 2007, the Department of Corrective Services did not have any SOTP available to 'deniers', who were regarded as not being 'treatment ready' (ts 140). It was only between August and December of this year that the department has conducted its first 'Denier's Pilot Programme', and the results of that initiative are still to be evaluated.

These treatment issues aside, if I was to make a supervision order, it would not be feasible for [the appellant] to reside with his father and sister as he did in 2000. In this regard it is impossible to ignore the fact that during his last period in the community, those accommodation arrangements did not prevent [the appellant] from breaching his parole conditions by taking up residence with the fourth and fifth victims. Furthermore, the evidence before me shows that the father's residence is within 25 metres of a children's day care centre.

In view of this situation, a senior Community Corrections officer (Ms V J Court) has made inquiries with appropriate organisations to see what accommodation can be made available to [the appellant]. A suitable 'house or flat' has been identified which would provide [the appellant] with some support from a particular organisation, but would not involve any full-time supervision. Accordingly, these arrangements would not enable

any monitoring of the people that [the appellant] meets, or prevent him from coming into contact with young families.

Having considered the matter carefully, I am unable to devise any viable conditions of a supervision order which would provide adequate protection to the community from [the appellant]. For all of the above reasons, I have come to the conclusion that the only appropriate order is that he be detained in custody for an indefinite term for control, care and treatment [83] - [89].

66 It was open to the learned judge to conclude that the employment and pastoral care being offered to the appellant by the witnesses called on his behalf would present an opportunity for the appellant to groom victims and re-offend, even though it may also provide some personal stability which might assist in preventing the recurrence of an offence.

67 The appellant has not demonstrated that the learned judge made any material error of fact. See s 36 of the Act; GTR [63] - [65]. I would dismiss the appeal.