DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- ALLEN [No 5] [2018] WASC 274 (6 September 2018)

1. In determining the first review of the continuing detention order made by Jenkins J, Hall J outlined the background to the matter.[3]

On 4 December 2009 Hasluck J determined that Mr Allen was a serious danger to the community but that he could be released on supervision with strict conditions: Director of Public Prosecutions (WA) v Allen [2009] WASC 360. The facts of the offending were summarised in that decision.

Mr Allen did not commit his first sexual offence until he was 34, however he had a history of other offending, including numerous convictions involving violence, prior to that. Between the ages of 34 and 45 he offended against five young women. He raped two of the victims, seriously assaulted another in circumstances which indicated that he proposed to rape her, attempted to sexually penetrate a fourth victim and assaulted the fifth in circumstances that gave rise to a suggestion that if she had not been able to escape, he would have, at the very least, indecently assaulted her. Each of the cases involved the use of violence in an attempt to subdue the victim. The offending was associated in each case with alcohol intoxication.

On 2 March 2005 Mr Allen was sentenced to a total effective term of imprisonment of 5 years and 4 months for offences of attempted sexual penetration without consent and robbery. He was made eligible for parole but was denied parole for a number of reasons, including that he did not complete a sex offender treatment programme and because he was considered to be a high risk of reoffending. At the conclusion of his sentence on 18 October 2009 the respondent was detained in custody pending the resolution of the DPP's application to have him declared a dangerous sexual offender. This application resulted in the respondent being released on the supervision order on 4 December 2009. [The respondent was released into the community under this order on 16 March 2010.[4]]

The supervision order included conditions that Mr Allen not consume alcohol, reside at a particular Aboriginal community and not leave the boundaries of that community without prior approval. In January 2011 Mr Allen contravened the terms of the supervision order by leaving the community in which he was residing, travelling to Fitzroy Crossing without permission, failing to report to police as directed and consuming alcohol. On 1 March 2011 he appeared before Murray J at the hearing of an application pursuant to s 23 of the DSO Act for an order that the supervision order be varied. He admitted the contraventions and, with the consent of the parties, Murray J amended the supervision order and rereleased Mr Allen.

Between 30 December 2011 and 23 November 2012 Mr Allen committed further breaches of his supervision order. The breaches were of a similar type to the previous ones. He was charged with offences against s 40A(1) of the DSO Act and sentenced on 6 February 2013 to suspended terms of imprisonment in respect of two of the breaches and small fines in respect of the rest.

In July 2013 Mr Allen again contravened his supervision order by being in possession of, using or being under the influence of alcohol. He was charged with offences arising from those breaches and remanded in custody. He was sentenced for those breaches and an application was then made by the DPP for an order that the respondent be made the subject of a continuing detention order. On 4 December 2014 Jenkins J concluded that there were no conditions upon which Mr Allen could be placed that would reduce his risk of serious sexual offending to an acceptable level. In this regard her Honour noted that intoxication was a significant risk factor and that Mr Allen had continued to drink despite a prohibition on doing so in the supervision order. Proceedings for breaching the supervision order and amendments to it had not been successful in changing his behaviour. He had also behaved in a violent manner and made threats of violence whilst in custody. Another impediment to release was the fact that there was no stable or adequate accommodation available.

This annual review was listed for a hearing on 4 February 2016. On that occasion counsel for the applicant noted that reports had referred to the possibility of a cognitive impairment that could be an impediment to the respondent participating in courses and obtaining benefits from treatment. In these circumstances it was proposed that a neuropsychological assessment be undertaken and that the review be adjourned for that purpose. Counsel for the respondent supported that application. The annual review was then adjourned to 26 April 2016.

1. I adopt his Honour's summary. I add to that summary the detailed description of the offences given by Hasluck J:[5]

The first two offences occurred on 26 August 1993. The 18yearold victim was not known to the respondent. He pulled a female victim into some scrubland, punched her to the stomach, choked her and then penetrated her vagina with his penis to the point of ejaculation.

...

Two months later, on 16 October 1993, at the Kimberley Hotel in Halls Creek, the respondent followed a female aged 20 to the ladies toilets. He grabbed her around the throat with both hands and penetrated her vagina with his penis. He was again charged with sexual penetration without consent occasioning bodily harm and deprivation of liberty.

... The respondent was sentenced to an effective aggregate term of imprisonment of 6 years.

...

On 25 October 1997, slightly more than eight months after being released to parole, the respondent committed offences of assault occasioning bodily harm and deprivation of liberty. These offences also occurred at the Kimberley Hotel in Halls Creek. The complainant was 23 years of age and was unknown to the respondent. She declined his invitation to share some of a carton of beer. This led to the respondent dragging her along a footpath, removing her clothes, punching her, pulling her hair, opening her top, lowering his trousers and indicating that he proposed to rape her. Before any sexual misconduct occurred security staff attended and apprehended the respondent who was then arrested by police.

... On 10 August 1998 in the District Court at Kununurra, his Honour Judge Muller sentenced the respondent to a total period of imprisonment of 3 years 2 months. ... His Honour declined to make the respondent eligible for parole.

On 14 August 2003 the respondent was involved in events that gave rise to an offence of attempted sexual penetration. The victim in that case was a 25yearold tourist from the United Kingdom, not known to the respondent. She was drinking at a nightclub in Broome and was making her way back at night to her vehicle.

In the car park of the Roebuck Bay Hotel the victim was wrestled to the ground and felt that she was being choked with two hands to her neck. She said to her attacker: 'What do you want?' The respondent replied: 'I want a fuck'. He undid his trousers so as to expose his penis and unzipped the victim's jeans. She was able to get away from her assailant. The respondent was arrested some two hours later. The victim sustained a number of injuries. It seems that the respondent was released to bail.

On 28 July 2004 the respondent was involved in further misconduct. Following an evening at a bar in Broome, a 22yearold female who was not known to the respondent was sitting outside a petrol station with some friends when she was approached by the respondent. He asked her for some money which she gave to him. She then walked back to the Roebuck Caravan Park on her own when she was accosted again by the respondent.

After walking with the victim for some time, the respondent threw her to the ground and placed both hands on her neck and started to choke her so that she could not breathe. The victim thought she was going to die. She was able to escape and ran off and was able to speak to a taxi driver. Her handbag was stolen in the course of the robbery.

... the respondent was sentenced ... to an effective aggregate term of imprisonment of 5 years 4 months which was backdated to commence from 19 June 2004, being the most recent term of sentenced imprisonment.

1. Hall J referred to the evidence of Dr Wojnarowska:[6]

Dr Wojnarowska said that on the basis of testing Mr Allen continues to be at high risk of sexual reoffending if not subject to a continuing detention order or a supervision order. The risk of reoffending is associated with the presence of an antisocial personality, psychopathic traits and alcohol use disorder. His treatment goals have not been achieved due to his inability to participate in group programmes. He continues to be difficult to engage and has very limited insight into his risk of reoffending. Management in the community would be difficult due to a propensity to nonadherence with conditions and a poor understanding of the requirements of a supervision order. In the last year some gains in treatment were noted which are possibly due to a better understanding of the association between alcohol use and offending. However, these gains are not substantial and do not reduce the overall risk of reoffending to acceptable levels.

Dr Wojnarowska said that Mr Allen's treatment needs continue to be substantial. His interpersonal difficulties, poor insight, impulsivity, grandiose belief about his selfimportance, misogynistic attitudes towards women, negative attitudes towards the professionals conducting treatment and assessment and in general towards authority, stem from a complex interplay between his personality characteristics and cultural factors. If released he would require close supervision with low tolerance for breaches, especially those related to alcohol consumption.

1. After hearing all of the evidence in the first review, Hall J made the following findings:[7]

(1) Mr Allen remains a serious danger to the community. This was not disputed at the hearing. It is equally clear that the risk of reoffending cannot be adequately managed in the community on a supervision order at this stage.

(2) There has been some progress in the last 12 months in regard to alcohol as a risk factor. The respondent has shown some insight in the need to address this factor and also shown motivation to do so. Participation in group programmes has not been constructive, but this is likely to be due to the fact that programmes developed for the general prison community do not cater well for the respondent's individual needs and circumstances. His response to individual counselling has been very much more positive. However, significant treatment needs remain, in particular in regard to sexual offending.

(3) ... [T]he only suitable treatment is continuing individual counselling. ... [A]ny treatment plan for the next 12 months should include ... continuing individual counselling to address substance use, behavioural issues and sexual offending.

1. In conclusion, Hall J said that he was satisfied that Mr Allen remained a serious danger to the community and that his risk of reoffending could not, at that time, be adequately managed if he was released on a supervision order. Hall J noted that Mr Allen had made some progress in the past year, but said it was minimal and had not yet reached a stage where release was a practical option. Hall J was satisfied that there were no conditions that could be imposed at that time that would reduce to an acceptable level the risk that he could reoffend.[8]
2. Accordingly, Hall J expressly declined to rescind the continuing detention order.[9]

1. The review was originally listed for 17 August 2017. However, at that time, various investigations and treatments were ongoing in relation to Mr Allen's health. As a result, both parties said they were not able to make submissions as to the risk of Mr Allen reoffending, and sought that the review be adjourned. Mr Allen's counsel was well aware that, if this review ultimately confirmed Mr Allen's continuing detention order, the delay would mean his next review would be postponed.[10]
2. The matter was adjourned to 10 November 2017. On that date, the parties again sought an adjournment to enable an updated report be obtained from Dr Wynn Owen and to allow Mr Allen's health status to settle. The parties sought a date in March 2018. However, the matter was tentatively listed for 13 December 2017, in case some certainty had been achieved at that point. Unfortunately, as events transpired, it became obvious that Mr Allen's health would not stabilise until after April 2018. The matter was relisted, at the parties' instigation, to be heard on 10 May 2018.
3. The matter proceeded on that date. However, it became apparent that further evidence would be required to determine, among other things, Mr Allen's prognosis.[11] Accordingly, while evidence was heard during the hearing on 10 May 2018, the matter was adjourned to 8 June 2018 to enable the further evidence to be obtained. The evidence was not available by that time, and the matter was postponed to 20 July 2018, at the request of the parties. However, on 2 July 2018, Mr Allen's health had deteriorated, and it was necessary to postpone the hearing until his condition settled. The matter was relisted to 27 August 2018.

1. At the first listing of the review on 17 August 2017, the State tendered, by consent, a book of materials, which included a report from psychiatrist Dr Wynn Owen, a treatment progress report by psychologist Ms Williams, and a community supervision assessment by Ms Yun of the Department of Corrective Services.[12]
2. After that date, the State tendered three supplementary books of materials, and various other documents. Most relevantly, the additional materials included further reports from Dr Wynn Owen and Ms Yun, and also provided details of more recent prison incidents.
3. During the hearing on 10 May 2018, Dr Wynn Owen and Ms Yun gave oral evidence and were crossexamined.
4. Mr Allen elected not to give or adduce any evidence on the review.

1. After Mr Allen was transferred to West Kimberley Regional Prison (WKRP) on 1 September 2016, there were several incidents involving Mr Allen's communications with women:[13]

(1) On 22 December 2016, Mr Allen was reported to have made inappropriate comments in his native language to a nurse at Derby which caused her evident distress. Prison staff noted that the nurse's response was to the effect that, despite working in the community for 15 years, she was shocked that Mr Allen would make such comments. Further investigation by prison staff ascertained that Mr Allen's comments most likely related to 'female personal areas'.

(2) On 24 December 2016, prison staff at WKRP received information from Bandyup Women's Prison that Mr Allen had written a threatening letter to a female prisoner. Prison records suggest this female was Mr Allen's expartner. Mr Allen was interviewed in relation to this incident, and he denied it. He was informed he was no longer permitted to communicate with the prisoner at her request.

(3) On 24 January 2017, a female prisoner informed staff that she no longer wished to have any contact with Mr Allen, including by mail or in person.

(4) On 14 February 2017, a different female prisoner received a letter from Mr Allen. She advised prison staff that she did not wish to receive any further letters from him, and that she did not know him. He was advised not to contact her any further.

1. Some of these incidents were discussed with Mr Allen by his psychologists and by Ms Yun, a senior community corrections officer.
2. On 24 January 2017, Ms De Haan, a psychologist, raised two of the incidents with Mr Allen.
3. The first was the threatening letter Mr Allen sent to the female prisoner believed to be his expartner. Mr Allen initially denied writing the letter. Then, after admitting he wrote it, he denied it was threatening. Ms De Haan indicated that, on challenging Mr Allen, he called the female prisoner in question a 'slut' and a 'cunt'. Ms De Haan considered terminating the session due to this, however Mr Allen appeared to settle down. He said he did not want to discuss the issue further.
4. The second incident Ms De Haan raised with Mr Allen was the comments to the nurse in Derby. Mr Allen denied making inappropriate comments to the nurse, stating that she was also a 'slut'. He then refused to further discuss it.
5. In February 2017,[14] Ms Williams, a psychologist, assessed Mr Allen. When asked about his correspondence with female prisoners, Mr Allen claimed that one letter he had written was an attempt to help, by explaining the process of tribal punishment that the prisoner in question may face on release due to the nature of her offence. He maintained that, if the woman continued their contact, he would ensure his assistance in this regard. Mr Allen denied threatening the woman and insisted his intent was to help her by explaining about tribal punishment.
6. The actual letter has been tendered in these proceedings.[15] I do not accept Mr Allen's characterisation of it.
7. On 31 March 2017, Ms Yun interviewed Mr Allen. During that interview, Mr Allen indicated he intended to make further contact with the female believed to be his expartner upon his release, suggesting that he wished to recommence a relationship with her in the future. He remained ambiguous about her identity, refusing to provide her full name, and did not disclose how he intended to make contact with her.
8. Mr Allen refused to discuss his prison behaviour with Ms Yun or provide any explanations for the adverse reports. He claimed that he did not need to speak about his prison behaviour, as Ms Yun was not helping him because she could not provide him with accommodation or a date of release.
9. Ms WilsonBrown, a psychologist, saw Mr Allen on 24 March 2017. Mr Allen denied his letters to female prisoners contained threatening comments. He suggested the reason these women refused further correspondence was due to them being with another man.
10. Ms Yun had a second interview with Mr Allen on 7 April 2017. She again raised his prison behaviour. On this occasion, Mr Allen claimed he did not have any adverse behaviour reports from prison and asserted that his prison conduct had been very good.
11. In a report from Ms Williams, a senior clinical psychologist,[16] she outlined Mr Allen's behaviour in WKRP, sourced from emails from two prison officers, Mr Fitzpatrick and Mr Bavington, including the following:

(1) While Mr Allen is capable of complying with unit routines, he often questioned officers' responses and he required ongoing monitoring to ensure his compliance.

(2) Mr Allen can become abusive and argumentative if he does not get the answer he wants and has often been troublesome, especially in interactions with female officers, as he seems to object to their instruction more often than he does to male officers.

(3) Some female prisoners Mr Allen had written to had subsequently requested no further contact, as they had been 'offended or disgusted at the suggestions or requests' contained in his correspondence.

(4) Mr Allen has not received any prison convictions since his last assessment and has been the subject of two instances of urinalysis, both which returned negative results.

(5) He has been subject to two adverse incident reports since his reception at WKRP which involved abusive behaviour towards staff.

1. On 10 March 2017, Mr Allen was transferred to Casuarina Prison to facilitate his medical treatment.
2. On 3 June 2017, Mr Allen assaulted a nurse assistant at Casuarina Prison. The nurse assistant was trying to help him with food, and he struck her to the lower chest and breast area. The nurse assistant suffered pain and tenderness, and needed three days off work. Mr Allen pleaded guilty and was fined $800 for this offence.
3. A report of Ms Yun set out further incidents that occurred after the assault.[17]
4. Three incidents are particularly relevant. Each occurred in the Casuarina Prison hospital. Each involved Mr Allen speaking in verbally abusive terms to women.
5. The first occurred on 28 February 2018, when Mr Allen repeatedly called a female officer a 'white cunt'.
6. The second occurred on 8 March 2018, when Mr Allen called a female officer a 'white cunt' and a female nurse a 'black cunt'. He refused to apologise.
7. On 9 March 2018, Mr Allen told nursing staff he did not like 'fuck cunt bitches telling him what to do'. He refused to apologise.
8. Dr Wynn Owen considered that the assault offence was 'a clear current example of his impulsivity and poor anger management/inability to selfregulate. It is also demonstrative of ongoing antiauthoritarian attitudes. That he has assaulted a woman in this manner also confirms his distorted views about women (i.e. that it is OK to assault a woman)'[18].
9. Taken as a whole, Mr Allen's behaviour in prison suggests, among other things, that he continues to hold distorted views about women.

1. The first report of Dr Wynn Owen, a consultant forensic psychiatrist, was dated 23 April 2017.[19] It set out the history of Mr Allen's engagement in treatment and medical and psychological assessments, including the following:

(2) Mr Allen participated in several structured Sex Offender Treatment Programs (SOTP).

(3) The most recent one was in 2008. Mr Allen completed 51 of 71 sessions. He was removed from the program after making verbal threats to a prison officer. The treatment report documents that Mr Allen 'met few program objectives, made minimal treatment gains and was observed to gain limited understanding of the factors underlying his offending'. The facilitators highlighted distorted attitudes towards sex (sexual entitlement) and women.

(4) Mr Allen was released to community supervision in 2009[20] following div 2 hearings, but was returned to long term custody in 2013. During this period Mr Allen breached his order in relation to reporting, alcohol consumption, being with others consuming alcohol and giving false personal details. On return to prison in 2013, he demonstrated symptoms of alcohol withdrawal.

(5) Following a neuropsychological assessment in 2016:

1. Dr Vidovich noted that Mr Allen was 'difficult to engage', that he was 'not willing to participate without some guarantee of a favourable outcome', that there were 'notable instances of attempts to manipulate the assessor', and 'indications of positive impression management'.
2. In addition, Dr Vidovich noted that 'behaviourally he had difficulty regulating aspects of his interaction'.

1. Importantly Dr Vidovich found that there was 'little evidence of progressive decline' in Mr Allen's cognitive function and further that: 'it remains to be determined as to whether there are potential cognitive constraints upon his capacity to learn and retain programmatic related interventions'.

(6) Mr Allen continued to have contact with psychologist Tania WilsonBrown while at the WKRP.

1. The quality of the engagement and interaction was variable. However, Mr Allen engaged in some discussion about his past offending, the breaches of conditions which resulted in his return to incarceration, and future management of risk.
2. Mr Allen reportedly acknowledged a link between his drinking and sexual offending behaviour. He also made statements to the effect that he will avoid alcohol to reduce risk and that he will not seek to have contact with women.

1. Mr Allen was reported to have minimised and/or been dismissive of his breaches. (In relation to minimisation of breaches, Dr Wynn Owen said 'I find it noteworthy that Mr Allen showed physiological and behavioural evidence of alcohol withdrawal on his return to prison; indicating regular ongoing alcohol use rather than sporadic breaches of conditions'.)

1. Dr Wynn Owen reported on the exchanges he had with Mr Allen during his interview with him (on 30 March 2017), including the following:

(1) When asked about how his offending may have affected his victims, Mr Allen's initial response was that he thought they would be upset. Further to discussion about Mr Allen being identified by others as a sex offender and the likelihood that his offences would have significant adverse psychological effects, Mr Allen became angry stating: 'that's bullshit, that's what you white people say, fuck you. It's not fucking serious to black fellas'.

(2) Mr Allen reported that he has no sexual interest, no sex drive and does not masturbate. Despite this, when asked about his thoughts about future relationships Mr Allen reported that he would like to have a relationship in the future.

(3) Asked how he would avoid any future offending, Mr Allen stated that he would avoid women, particularly young women.

(4) Mr Allen stated that he was aware that there would be a range of stringent conditions in place if community supervision was decided. He stated that he would definitely comply with any conditions imposed in relation to reporting, disclosure, abstinence from alcohol and reporting of movements. When pushed on this, in the context of previous breaches of conditions, Mr Allen said: 'I'm telling the truth ... I'll do it'.

1. Dr Wynn Owen said that the rapport established initially in the interview was superficial and fragile: when Mr Allen disagreed with the interviewer, he became angry, defensive and abusive (terminating the interview with the statement: 'If I'm not getting out, I'm not seeing none of you fucking mob').
2. Dr Wynn Owen diagnosed Mr Allen as having the clinical disorder of alcohol dependence (currently in remission), and an antisocial personality disorder.

1. Dr Wynn Owen undertook a detailed risk assessment using a protocol known as the Risk Sexual Violence Protocol (RSVP) that included the following (emphasis in Dr Wynn Owen's report):

(1) Mr Allen's offending demonstrates the risk factor chronicity of sexual violence; this factor is associated with an increased risk of future sexual violence.

(2) Mr Allen's pattern of offending also demonstrates the risk factors of physical coercion and psychological coercion. These factors, which reflect past behaviour, are not causal indicators of increased risk of future offending. However, they importantly indicate other risks such as attitudes which support or condone sexual violence and problems with selfawareness which should be targets for therapeutic intervention.

(3) Mr Allen demonstrates the risk factors of attitudes that support or condone sexual violence, problems with selfawareness and problems with stress or coping.

(4) Mr Allen partially demonstrates the risk factor extreme minimisation or denial of sexual violence.

(5) Mr Allen does not have a major mental illness such as depression, anxiety or psychosis. Mr Allen does have a psychopathic personality, issues with substance abuse and some areas of impaired cognitive function.

(6) Mr Allen evidences the risk factors of problems with intimate relationships, problems with non-intimate relationships, problems with employment and non- sexual criminality.

(7) Mr Allen demonstrates the risk factors of problems with planning, problems with treatment and problems with supervision. As to this, Dr Wynn Owen said:

1. People who fail to devise suitable, safe, and realistic plans for discharge from an institution are at increased risk of criminality and violence after release.
2. Individuals who do not engage with or respond to treatment are at an increased risk of future offending.

1. Individuals who do not appropriately avail themselves of the supports offered through supervision or are unable or refuse to engage and comply with the supervisory framework are at an increased risk of future offending.

1. Dr Wynn Owen also used the Static99R, a checklist of historical unchanging risk factors, to evaluate Mr Allen's risk. Mr Allen's score placed him in the 'High Risk' category. Offenders in this category have an approximately four in 10 likelihood of sexual reoffending over the five years post release.
2. Dr Wynn Owen noted that the Static99 and Static99R have not been normed on a significant cohort of Australian Aboriginal offenders. Therefore, the results may not be as accurate as in western offender cohorts. However, Dr Wynn Owen noted that a study in Western Australia suggests that there is relatively high accuracy in predicting violent reoffending in this cohort, and less accuracy in the prediction of sexually violent reoffending.
3. In his oral evidence, Dr Wynn Owen explained that the study showed that the Static99 tended to underestimate the risk of sexual violence, whereas it was more accurate in the risk of nonsexual violent offending.[21]
4. Dr Wynn Owen also said that, even if the Static99 and Static99R results were taken out of consideration, his opinion as to Mr Allen's risk would not change.[22]

1. Dr Wynn Owen's report summarised the factors he considered to be significant, including the following:

(1) Mr Allen has a history of serious violent rape offences in association with alcohol abuse and dependence. He has an entrenched pattern of violently abusing vulnerable, often younger, women. He has a long history of general criminality in addition to violent sexual offending; this includes a number of violent nonsexual assaults. Mr Allen has a psychopathic personality structure.

(2) Mr Allen has attended a number of rehabilitative programs to address his general and sexual offending, but he appears to have learned little if anything from them. This, according to Dr Vidovich who undertook neuropsychological assessment in 2016, is not because he cannot learn. It may therefore be a true reflection of firmly entrenched attitudes and entitlement.

(3) While under a DSO Community Supervision Order, Mr Allen breached his conditions on multiple occasions, leading to contravention and reincarceration. However, he did not commit a serious sexual offence during this period.

(4) Mr Allen is currently unable to outline a clear plan for discharge from prison, either to avoid reoffending or alcohol.

(5) He continues to display a lack of remorse and minimises the impact of his violent sexual offending on his victims.

(6) His selfcontrol and selfmanagement, as evidenced at interview and in his interactions with prison and hospital staff, remains poor.

1. Dr Wynn Owen concluded that, 'while Mr Allen's risk of sexually violent reoffending is reduced by his ischaemic heart disease, hypertension and diabetes, which potentially limit his physicality and reduce libido, I am of the opinion that he remains a high risk of sexually violent offending if released from DSO'.
2. Dr Wynn Owen also considered that therapeutic intervention will be of little or no benefit to reducing risk.

1. Dr Wynn Owen prepared an addendum to his report, dated 19 April 2018.[23] He saw Mr Allen on that date.
2. Dr Wynn Owen reported on the interview with Mr Allen as follows:

Mr Allen was mainly cooperative at interview. He emphasised that he wished to be released and return to his community. When asked if the community would welcome him back he angered quickly and stated that it was a stupid question from a 'stupid white c***, what did I know anyway, are you going to get me out of here or what?'.

He reported that he had not spoken to his son since 2017 but was sure that his son would support and accommodate him and that he would be welcomed as a respected elder by the community. He also believed his daughter would offer support.

There were no changes in Mr Allen's responses to questions about attitudes towards offending, sexual thinking and behaviour or preparation for release. When pressed for detail in relation to his release planning and future management of risk, Mr Allen became angry. He acknowledged that, if he could not return to the North West of WA, he would accept placement in metropolitan Perth, but this was definitely not his preference. He said he would comply with any reporting and monitoring conditions.

1. Dr Wynn Owen also noted that Mr Allen was sensitive and quick to anger and, when angry, his words were mainly expletives. His affect was volatile.
2. Dr Wynn Owen confirmed that Mr Allen's clinical disorder remained 'alcohol dependence (currently in remission)' and that he had an antisocial personality disorder.
3. Dr Wynn Owen provided an updated risk assessment. He again scored Mr Allen on the Static99R. Although, as noted earlier, this is a checklist of historical unchanging risk factors, the result was different. This was for two reasons. First, it had new norms from the outcomes for a larger number of male offenders in the Static99 cohort. Second, Static99R takes account of age at release (Mr Allen scored 1 not 0 on this question).
4. This time, Mr Allen's score placed him in the 'WellAbove Average Risk' category: offenders with the same score as Mr Allen have an approximately two in 10 likelihood of sexual reoffending over the five years post release. There is no higher category than this category.[24]
5. Dr Wynn Owen repeated his earlier caution about the accuracy of Static99R in Aboriginal offenders.
6. In concluding, Dr Wynn Owen noted that, while Mr Allen currently required a wheelchair to mobilise, his mobility is expected to improve over time such that he should be able to walk with a walking aide and is likely to be able to return to mobilising with aides.
7. Dr Wynn Owen noted that Mr Allen said that he will definitely not drink alcohol again and because of this he will not reoffend. Dr Wynn Owen said Mr Allen's averred intention to be abstinent from alcohol and his apparent understanding of a link between intoxication and his sexual offending is a positive.
8. However, in his oral evidence, Dr Wynn Owen said that he 'did not find that there was any depth to the statement so there was no sense of an understanding beyond that. It almost felt like something that [he] thought he ought to say ... and then could dismiss the context'.[25] Dr Wynn Owen confirmed that, unless Mr Allen had a plan about how he was going to not drink alcohol if released, it is difficult to have any confidence that he will not drink. However, when Dr Wynn Owen asked him how he was going to stop drinking alcohol, Mr Allen asked him why he was asking these stupid questions. Accordingly, Dr Wynn Owen could not explore this with Mr Allen.[26]
9. Dr Wynn Owen also said in his oral evidence that, if Mr Allen did want to give up alcohol, it might be very difficult for him to do so. Mr Allen is still smoking after being diagnosed and treated for lung cancer.[27]
10. Dr Wynn Owen said Mr Allen's 'short fuse' was of concern, indicating very low stress tolerance, without being able to demonstrate the development of any effective selfmanagement/stress management strategies or to acknowledge the need for them. Dr Wynn Owen said Mr Allen's behaviour at interview was also an indication of ongoing antiauthoritarian attitudes suggesting 'an underlying disregard for the white man's laws of the land'.
11. It remains Dr Wynn Owen's opinion that therapeutic intervention will be of little or no benefit to reducing risk.

1. In his oral evidence, Dr Wynn Owen explained which risk factors were static and which were dynamic. The static factors obviously do not change. Dr Wynn Owen confirmed that there were no changes in the risk factors.[28]
2. In his oral evidence, Dr Wynn Owen was asked about his statement that there 'were no changes in Mr Allen's responses to questions about attitudes towards offending, sexual thinking and behaviour or preparation for release'. Dr Wynn Owen explained that he meant that Mr Allen's responses to those types of questions had not changed from his responses when Dr Wynn Owen interviewed him in 2017 and also his responses when Drs Tannis and Wojnarowska interviewed him for the hearing of 2009. Dr Wynn Owen said that there remained a 'degree of denial and minimisation in relation to all offences, with considerable attribution to the use of alcohol and intoxication, and a very limited, if any, awareness of the relationship between intoxication (indistinct) other than, "I - I won't drink" '. Dr Wynn Owen said that there had not been any significant change in attitude.[29]
3. Dr Wynn Owen said the attitudes that he referred to 'are related to risk items identified through use of the RSVP, an appraisal of both dynamic and static factors, particularly some of the dynamic factors'.[30]
4. Dr Wynn Owen gave oral evidence about Mr Allen's attitudes to women. As noted earlier, Dr Wynn Owen considered that the assault offence confirmed Mr Allen's distorted views about women ('i.e. that it is OK to assault a woman'). Dr Wynn Owen explained that Mr Allen 'has views which tend to condone sexual violence, so if he needs to have his sexual needs fulfilled and a woman is present, that that is an appropriate interaction for him to undertake, whether or not the woman is ... consenting. Also, that it is not in any way unreasonable to be abusive and aggressive in one's interaction with women'.[31]
5. Dr Wynn Owen said he was satisfied that Mr Allen continued to hold those views. He said this was supported by Mr Allen's ongoing use of particularly aggressive and abusive language in situations where, for example, people were trying to help him through his cancer treatment.[32]
6. Dr Wynn Owen also said that he did not think Mr Allen is motivated to change.[33]
7. In short, Dr Wynn Owen's opinion was that Mr Allen's consistently maintained attitudes meant that there was no change in his assessment of the danger Mr Allen presented.
8. However, Dr Wynn Owen explained that 'there are two things that can make a difference ... to offending in future. One is a change in behaviour and attitudes, and the other is ... a change in the physical ability to actually commit an offence'.[34] He acknowledged that there had been a change in Mr Allen's health.

1. Dr Wynn Owen noted that Mr Allen was currently in a wheelchair and it would be very difficult for him to offend from a wheelchair.
2. Dr Wynn Owen said that whether Mr Allen presented a significant risk if released depended entirely on whether Mr Allen returned to near full mobility. In Dr Wynn Owen's opinion, if Mr Allen returned to near full mobility, he will continue to present a significant risk if released, regardless of the terms of a supervision order. If Mr Allen does not return to near full mobility, he will not.[35] I accept Dr Wynn Owen's opinions.
3. Dr Wynn Owen was crossexamined about Mr Allen's ongoing health issues and the impacts that the cancer treatments had had on his health, weight and mobility. Dr Wynn Owen agreed that Mr Allen would not have been suffering from most, if not all, of those health issues when he committed his past offences.[36]
4. Dr Wynn Owen also agreed that if future cancer treatment was required, it would have an adverse effect on Mr Allen for the duration of the treatment and may have longer term consequences as well. He agreed that it could potentially impact on Mr Allen's mobility.
5. Dr Wynn Owen agreed that Mr Allen used his physicality to overcome resistance from the women he offended against. He agreed that Mr Allen had used significant physical violence in the offences and a degree of persistence in overcoming resistance when required. He also agreed all of the victims were adults.[37]
6. Dr Wynn Owen agreed that Mr Allen was now less physically able to commit those specific offences against those specific victims. However, Dr Wynn Owen said '[t]here is an element of victim selection, though, around vulnerability which is of concern'.[38] He explained:[39]

I was referring to the - the context, and yes, if we went exactly the same victim in exactly the same situation, he may not be able to offend in that way against those people. I was referring in part to my opinion that there is a degree of vulnerable victim selection, as well as the impulsive nature, so there is an underlying urge for some sexual gratification, and then a selection process that Mr - Mr Allen would appear to undertake, and he may not select the same type of victim on the basis of his current physicality. That's really why I was being qualified in the response. I do believe that he would be capable of committing a sexual offence.

1. There was evidence that Mr Allen had returned to playing football after extensive treatment, and was expected to be able to return to this.[40] Dr Wynn Owen said that if Mr Allen did return to that point, he would be able to commit a similar type of offence, 'and I would be concerned, as I mentioned before, about the victim selection because I believe there was some selection on the basis of vulnerability'. Dr Wynn Owen explained this was '[b]ecause a weaker victim, a less physically able victim, or someone who is intoxicated and uncoordinated would be less able to resist an attack'. Dr Wynn Owen said that an offender who adopts victim selection will choose a victim that matches their physical capabilities. He said 'the opportunistic nature suggests that the person feels able to commit the crime and selects the victim at that moment'.[41]

1. Dr Wynn Owen did not accept that Mr Allen's age was the reason he did not commit a serious sexual offence during the period he was under a community release order.[42]
2. Dr Wynn Owen said the data indicated that, up to the age of 60, there would be very little change in risk levels due to age. However, after 60 years of age, there is a significant reduction. When Mr Allen turns 60, he would be in the 'average' risk category, rather than the highest category.[43]
3. Dr Wynn Owen accepted that an Aboriginal person has a lower life expectancy than a nonAboriginal person.[44] However, he said he had not seen any data that would make the milestone of 60 even more significant in the assessment of risk. He said that the lower overall life expectancy of indigenous Australians is 'a likelihood, rather than something that we can make specific to Mr Allen. So that's a generalisation on the basis of a population cohort. So each individual's expectancy is actually about their own situation and context'.[45]

1. As just noted, Dr Wynn Owen's opinion is that, if Mr Allen returned to near full mobility, he will continue to present a significant risk if released, regardless of the terms of a supervision order.
2. Dr Wynn Owen explained this stemmed from Mr Allen's personality. Dr Wynn Owen said Mr Allen demonstrates the pattern of a typical antisocial personality disorder.[46]
3. Dr Wynn Owen said he would expect that, if Mr Allen committed an offence in the future, it would be consistent with his pattern of past offending - an opportunistic, sudden attack involving the use of violence to overpower the woman. He said Mr Allen would be intoxicated, he would have a sexual urge that he would fulfil and it would be an opportunistic selection of the victim. Dr Wynn Owen said he also thought that there was a degree of vulnerability of a number of the victims.[47]

1. The report of Ms Williams, a senior clinical psychologist, was dated 7 April 2017.[48] It outlined Mr Allen's treatment since the review on 26 April 2016.

1. Ms Williams noted that Mr Allen had regular individual counselling sessions with Ms WilsonBrown, a psychologist from the forensic psychological service. He attended 15 sessions with Ms WilsonBrown.
2. Ms Williams' report summarised what Ms WilsonBrown had reported as follows:

(1) Mr Allen maintained a positive attitude towards engagement in intervention, participated appropriately and discussed his offending and factors contributing to his offending in a positive and constructive manner. He presented as accepting of help and support and recognised his need for continued supports from external agencies and community supports if released. However, he occasionally displayed some difficulty shifting his focus at times.

(2) Mr Allen maintained his motivation to address his alcohol and sex offending treatment needs during the intervention and made some treatment gains in relation to his understanding of consent, identifying high risk situations and early warning signs, what constitutes a healthy relationship, victim empathy, recognising the importance of accessing cultural and community supports, respectful sexual attitudes, communication, problem solving and developing risk management plans.

(3) In her most recent Treatment Review Report, Ms WilsonBrown noted that Mr Allen actively participated in sessions discussing sex and his offences, albeit displaying some discomfort when discussing masturbation. She noted that he understood the concept of background and immediate factors that precede sex offending and that there are warning signs he has previously ignored. Mr Allen agreed with the impact of lifestyle choices and emotional factors on his decision to offend. During their sessions, Ms WilsonBrown noted that unhelpful attitudes towards women appeared to be the most prominent factor in Mr Allen's offending, which he acknowledged at times.

1. Following the completion of counselling, Ms WilsonBrown recommended a transfer to WKRP as a more culturally appropriate placement to assist Mr Allen maintain his motivation and to enable him to work with staff to build community support networks. She suggested that ongoing contact with a clinician at WKRP would assist him adjust to the less restrictive environment and also to maintain his treatment gains and release plans.

1. Mr Allen was transferred to WKRP on 1 September 2016. He attended six sessions of intervention with Ms De Haan between 23 September 2016 and 3 March 2017.
2. Ms Williams' report described what was shown by Ms De Haan's records.
3. Ms De Haan's case notes revealed that Mr Allen engaged productively in the first two sessions, then presented as grumpy and questioning his attendance at following sessions. He felt he had completed his counselling at Casuarina and did not see the benefit reviewing material with her. Ms De Haan reported that Mr Allen then presented as angry, agitated and argumentative and became fixated on obtaining information regarding his release date, refusing to refocus his attention on the content of counselling. She noted that Mr Allen spoke to her inappropriately during one session, remarking 'It is alright for you; you get out and have sex, while we all have to sit around and wank'.
4. Ms De Haan's case notes also set out her discussions with him about his inappropriate conduct in prison, discussed earlier.

1. Ms Williams reported that Ms WilsonBrown had an unscheduled, additional intervention session with Mr Allen on his return to Casuarina (24 March 2017) which was prompted by his early return to the metropolitan area to attend medical appointments.
2. In that session with Ms WilsonBrown, Mr Allen said that, if he was not released, he did not see the benefit of ongoing psychological intervention as it was not helping him get out.
3. Ms WilsonBrown raised concerns regarding Mr Allen's willingness to consistently engage in ongoing counselling for the duration of a twoyear continuing detention order if not released. She reported that Mr Allen's positive engagement in their counselling during 2016 was likely due in some part to having the incentive of being transferred to WKRP after he completed an intervention addressing his sex offending. Without this incentive, his motivation to engage in ongoing counselling would likely be less positive and enduring.
4. Ms WilsonBrown said that Mr Allen's motivation to engage appropriately with, and his attitude towards, those involved in his care (either custodial or community) is an area which continues to fluctuate. She noted that he takes time to develop trust. Ms WilsonBrown reported a slight shift in Mr Allen's acceptance that he might face difficulties in the community and that he may need to access available supports. She noted that this will need to be reinforced and monitored to see if this shift is maintained.

1. The report of Ms Williams outlined Mr Allen's presentation and her exchanges with Mr Allen during her assessment of him in February 2017.
2. Ms Williams noted Mr Allen's level of engagement and willingness to discuss issues varied during interviews depending on the topic of enquiry. When discussing his current prison placement and plans for the future, he was polite and happy to answer questions. However, when his offending behaviour was raised, he refused to discuss details and stated 'you white fellas always want to talk about the past'. He became agitated and argumentative when discussing the nature of his detention order as indefinite and terminated one interview as a result. Despite attempts to explain details of the process, he was unable to understand and said 'I will just do my full time and get out'.
3. Ms Williams also noted that Mr Allen said he would not disclose information about his past offending to an intimate partner 'as the focus would be on moving forward'.

1. The report of Ms Williams outlined what she described as future intervention issues.

1. Ms Williams first discussed Mr Allen's variable engagement with treating clinicians.
2. Ms Williams said that, in Casuarina, Mr Allen demonstrated adequate engagement. She said that, while this was likely motivated to ensure that he would be transferred to WKRP, it is encouraging that he was able to demonstrate he was able to engage meaningfully in counselling.
3. Ms Williams said that Mr Allen had maintained treatment gains in relation to his commitment to abstinence from alcohol and was able to demonstrate an understanding of the effects of acute intoxication as well as how alcohol use has negatively affected his choices in the past.
4. Ms Williams noted that, in WKRP, Mr Allen's engagement deteriorated over time. She wrote that appears to be primarily due to the conflict between impression management and honest, meaningful engagement.
5. Ms Williams said that Mr Allen's fluctuating attitude towards those involved in his care had hampered further progress and may have eroded earlier treatment gains.

1. Ms Williams reported that Mr Allen disclosed an ongoing interest in sexual behaviour during the interview. Of concern to Ms Williams was his limited understanding of consent, specifically in relation to his comments around a woman's ability to provide consent when intoxicated. Ms Williams wrote 'Therefore any evidence of sexual behaviour will need to be monitored by those involved in his future care and supervision to ensure his understanding of consent across contexts. Mr Allen will also need to be encouraged to disclose his DSO status to any potential intimate partners. This is particularly pertinent given his previous contravention in this area which prompted his return to custody and contradictory comments in interview regarding his commitment to disclosures of this nature'.

1. Ms Williams said that, as Mr Allen refused to discuss high risk situations for sexual offending and management strategies to avoid future offending during interview, despite developing these in detail with his treating psychologist, it was not possible to ascertain his learning in this area.

Whilst it is encouraging that Mr Allen managed to adjust his aggressive behaviour for a period of time whilst at Casuarina Prison, it is likely that this was to facilitate his transfer to WKRP. This suggests that he is capable of maintaining changes given an appropriate motivation. Of concern are his incidents of abusive behaviour towards prison staff at WKRP.

Mr Allen has evidenced numerous instances of disrespectful attitudes towards women since his last review, including those involved in his care and those he has felt have rejected him in some way. This suggests ongoing misogynistic attitudes as well as attitudes of entitlement.

(1) Mr Allen has made incremental gains in his motivation to engage in intervention and has maintained gains in relation to his commitment to abstinence from alcohol.

(2) Mr Allen continues to demonstrate some issues with engagement, primarily due to personality factors, cultural dissonance and conflict between impression management and honest and meaningful engagement.

(3) Mr Allen would also benefit from specific support around his continuing management of abstinence from alcohol use through either a communitybased, culturally relevant intervention or through external controls, such as a dry community. A focus on practical behaviour management would be required by those involved in his supervision and care.

1. The first Community Supervision Assessment Report was prepared by Ms Yun, senior community corrections officer, and was dated 18 April 2017.[49]
2. It noted the incidents that had occurred since Mr Allen was transferred to WKRP on 1 September 2016, and her discussions with him. This part of Ms Yun's first report was set out earlier.

1. Ms Yun reported that she spoke to Dr Wynn Owen, Ms WilsonBrown and Ms Williams on 7 April 2017, and they relayed views that Mr Allen appears to have made limited treatment gains over this review cycle.
2. Ms Yun further noted that, if Mr Allen was released, he would be subject to GPS tracking. Therefore, prior to any placement of Mr Allen in the community, testing relating to the GPS coverage and capabilities must be undertaken due to the remote nature of the communities in which he was proposing to reside (at the time of the original assessment).

1. Ms Yun's first report also dealt with the availability of accommodation for him, if he was to be released. This has been overtaken by subsequent events.
2. Subsequently, Ms Yun provided additional reports, updating the accommodation options over time.
3. Despite exploring numerous avenues, there is no suitable accommodation available for Mr Allen.

1. Mr Allen has been treated for throat cancer and lung cancer. His long term prognosis is unknown, but his death is not expected in the near future.
2. At various times during his treatment, Mr Allen's health and mobility has been significantly compromised.
3. However, it appears that his condition has now settled.
4. In May 2018, Dr Kennedy, oncologist, said that Mr Allen's mobility was normal and he was expected to return to playing football very soon.[50]
5. Dr Wee said, in a report of 5 June 2018, that Mr Allen's mobility was not expected to be impaired.[51]
6. In a report of 12 June 2018, Dr Wee set out the opinions of Dr Tota, an oncologist, as to the life expectancies associated with Mr Allen's cancers. The lung cancer ('stage IIb lung adenocarcinoma') is associated with a two year survival of 64 72%. The throat cancer ('p16 positive oropharyngeal cancer') is associated with a two year survival of 91%.[52]
7. In a report of 24 July 2018, Dr Wee noted that Mr Allen's management had not changed since the last report in June. As at that time, Mr Allen was independent in his daily living activities.[53]
8. Since then, he has had periods of decline, but these are apparently caused by him refusing treatment at times.[54] He has also, at times, needed assistance with daily living. However, the evidence suggests that, for the most part, Mr Allen has been mobile and independent in his daily living activities shortly after being released from hospital on 9 July 2018.[55]
9. On 16 August 2018, Mr Allen was reviewed by Dr Tota, an oncologist. Dr Tota said that there was no reason for concern that his cancer may recur or that he might suffer a new metastatic disease.[56]
10. Mr Hager accepted on behalf of Mr Allen that Mr Allen had improved and did not dispute the medical evidence and opinions. However, Mr Hager noted that Mr Allen continued to suffer some effects of his illness and had lost a lot of weight. Mr Hager noted that, at times, Mr Allen required assistance with daily living activities and mobility, and still required high level ongoing care. Mr Hager said that the life expectancies associated with Mr Allen's cancers demonstrated he was not 'out of the woods'. Mr Hager noted that Mr Allen was no longer the strong man, or the young man, that he was when he committed the offences.

1. The DSO Act was recently amended to, among other things, prevent the court from rescinding a detention order and making a supervision order unless it is satisfied that the person will substantially comply with the standard conditions of the order.
2. A question arose as to whether that amendment operated for the purposes of this review. Relevantly, the State tendered various materials for the purpose of the review on 17 August 2017, prior to the amendments taking effect.
3. It is unnecessary to determine this issue as, even on the approach required prior to the amendments, I would not rescind the detention order.

Relevant principles under the DSO Act prior to its amendment

(1) On a review of a person's detention under section 31 -

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

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

(i) affirm the continuing detention order; or

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

...

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

1. Section 7 of the DSO Act informs the approach to be taken in evaluating whether a person is a serious danger to the community. It provides:

(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 must 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 must be satisfied -

(a) by acceptable and cogent evidence; and

(b) to a high degree of probability.

(3) In deciding whether to find that a person is a serious danger to the community, the court must 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; and

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

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

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

(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; and

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

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

(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; and

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

(j) any other relevant matter.

(4) In considering whether it is satisfied as required in subsection (1), the court must disregard the possibility that the person might temporarily be prevented from committing a serious sexual offence by imprisonment, by remand in custody or by the imposition of bail conditions.

1. In The State of Western Australia v West [2013] WASC 14 [52], Corboy J helpfully set out the principles that have been established in relation to s 7 of the DSO Act (I have added some additional comments in the footnotes):

(a) Section 7(1) of the DSO Act provides that before the court may find that a person is a serious danger to the community, it must be satisfied that there is an unacceptable risk that, if the person was not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence. The expression 'serious sexual offence' has the meaning given to that term in s 106A of the Evidence Act 1906 (WA)[57] (s 3 of the DSO Act).

(b) The DPP carries the onus of satisfying the court about that matter and the court must be satisfied by acceptable and cogent evidence and to a high degree of probability. The expression 'high degree of probability' is incapable of further definition. Clearly, it connotes a standard that is more than the civil standard but less than the criminal standard of proof: Director of Public Prosecutions for Western Australia v GTR [2008] WASCA 187; 38 WAR 307 [28] (Steytler P and Buss JA; and see at [34][58]for a further elaboration on what the expression means in its application).

(c) In deciding whether to find a person is a serious danger to the community the court must have regard to each of the matters specified in s 7(3) of the DSO Act.

(d) It will necessarily and automatically follow that a person is a serious danger to the community if the court is satisfied that there is an unacceptable risk that, if the person was not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence: DPP v GTR [21].[59]

(e) The term 'unacceptable risk' is not defined in the DSO Act. However, a finding of fact that there is an unacceptable risk is an evaluative and predictive finding of fact involving a balancing exercise in which the court is required, on the one hand, to have regard to, among other things, the nature of the risk (the commission of a sexual offence with serious consequences for the victim) and the likelihood of the risk materialising and on the other hand, 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) if an order is made: Italiano v The State of Western Australia [2009] WASCA 116 [4] and [46] (Buss JA).

(f) In a passage that was expressly approved in DPP v GTR, Wheeler JA stated in Director of Public Prosecutions for Western Australia v Williams [2007] WASCA 206; 35 WAR 297 [63] [64]:

'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 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.'

(g) The powers conferred by the DSO Act are not to be exercised for the purpose of imposing additional punishment on an offender but rather, for the ultimate purpose of protecting the community. The community will be protected by control continuing to be exercised over the offender; it may also be protected by the provision of care and treatment to the offender while in custody in the hope that the danger posed to the community or sections of it will be reduced: DPP v GTR [97] (Murray AJA).

(h) The court must identify what, if anything, constitutes the risk and factor or factors makes that risk unacceptable and then consider whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence: DPP v GTR [34].

1. In addition to these principles, I adopt the following observations of Hall J in Director of Public Prosecutions (WA) v Griffiths:[60]

(1) [In relation to s 7(3)(c), the word] 'propensity' is taken to have its ordinary meaning in the context of the criminal law: Director of Public Prosecution (WA) v GTR. At [178] of GTR Murray AJA stated that:

'[Propensity] means that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of the quality of a diagnosable mental illness or personality disorder.'[61]

(2) While s 7(3)(g) provides that the court must have regard to the criminal record in deciding whether a person is a serious danger to the community, the mere fact that a person has committed previous offences does not necessarily mean that there is an unacceptable risk that the person would commit a serious sexual offence in the future. The relevance of a prior record will depend on the nature of the offences committed, the number of them and the period of time over which they occurred. However, past behaviour is often a good indicator of future conduct.[62]

(3) Offences other than 'serious sexual offences' may be relevant in assessing the risk of serious sexual offending being committed in the future because other offences may be connected to behaviour which has the real potential to lead to serious sexual offending.[63]

1. In Director of Public Prosecutions for Western Australia v GTR, Steytler P and Buss JA said:[64]

Although there is no doubt, under the Western Australian Act, that a court must have regard to the psychiatrists' reports (and must bear in mind that the authors have an area of expertise not shared by the court), the reports are only a part of the materials that must be considered and the weight to be accorded to them will depend upon their cogency and reliability, when considered in the light of the whole of the evidence. The responsibility for deciding whether or not the offender is a serious danger to the community as defined and, if so, what order should be made is that of the judge alone.

1. If the court finds that Mr Allen is a serious danger to the community, the court must affirm the continuing detention order or make a supervision order.[65]
2. In deciding between them, the paramount consideration is the protection of the community.[66] However, this does not mean that there is a predisposition to making a continuing detention order.[67]
3. In terms of the proper approach, I adopt the following observations of Beech J in Director of Public Prosecutions (WA) v DAL [No 2]:[68]

(1) In choosing between an indefinite detention order and a supervision order, the fact that the paramount consideration is the need to ensure the adequate protection of the community does not exclude other considerations.

(2) The use of the word 'adequate' indicates that a qualitative assessment is required.

(3) In considering whether a supervision order would adequately protect the community, account must be taken of conditions which can be imposed so as to ensure the adequate protection of the community, the rehabilitation of the respondent, and his care and treatment.

(4) The DSO Act does not require that there be no risk of reoffending. Such a requirement could never be met and would mean no person to whom the DSO Act applies would ever be released.

(5) The question is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community. That requires a weighing of the nature and degree of risk in the context of methods for the management and reduction of that risk.

(6) If, after considering all the evidence, the court is left in doubt as to whether the conditions of a supervision order would adequately protect the community, then, because the paramount consideration is the need to ensure the adequate protection of the community, the court must expressly decline to rescind the continuing detention order.

1. The court should choose the order that is 'the least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community'.[69]
2. It 'cannot simply be assumed that the most assured preventative is detention and therefore, the protection of the community will always favour such an order'.[70]
3. In relation to the suitability of accommodation, as Hall J said in Director of Public Prosecutions (WA) v McGarry [No 9],[71] the issue is not whether the proposed accommodation is the best that can be found, but whether, together with all the conditions that could reasonably be included on a supervision order, it would enable adequate protection of the community from the risk of reoffending.

1. In Director of Public Prosecutions (WA) v Unwin [No 3], Hall J said:[72]

The clear intention of the annual[73] review process is to allow for the possibility of a change of circumstances. Detention under the DSO Act is not a punishment for past offending; it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised. If circumstances change such that the risk of reoffending reduces or can be adequately managed in the community then the continuing need for detention must be considered.

It is a significant thing to deprive a person of their liberty, not for something they have done but for something they might do in the future. In order to justify detention on these grounds the evidence must be acceptable and cogent and establish the existence of a serious danger to the community to a high degree of probability: s 7(2) DSO Act. Such a finding requires satisfaction that there is an unacceptable risk that the person would commit a serious sexual offence if not placed under a supervision order or detained.

The risk of reoffending may change over time. It may be affected by age, health and the successful completion of treatment. The availability of new technology or resources in the community may also affect whether the risk of reoffending can be managed on a supervision order.

The justification for making a continuing detention order is the existence of an unacceptable risk of serious sexual offending that cannot be adequately controlled by conditional release. However, detention also serves the purpose of allowing treatment and care in a secure environment: s 17 DSO Act. This confirms an obligation on the part of prison authorities to facilitate change by offering programmes and access to counselling.

If the risk changes or resources improve to enable more efficacious conditions then the need for detention may dissipate. In these circumstances, continuing detention may be unjust.

The annual review process is intended to ensure that detention only continues where necessary. It mitigates the otherwise potentially draconian effect of imprisoning people for crimes that they have not committed. Annual reviews are not, therefore, merely a welfare check; they are an exercise of judicial power to confirm, vary or rescind a detention order. Continuing detention should not be ordered unless that is justified by the circumstances existing at the time of the review.

The first issue - is Mr Allen a serious danger to the community? Mr Allen's submissions

1. Mr Hager submitted on behalf of Mr Allen that he was no longer a serious danger to the community. This submission was based on the following points:

(1) Mr Allen is no longer the strong man that he was when he committed the sexual offences.

(2) He is older now, at 58 years of age. Given his illness and aboriginality, this age could be seen as effectively exceeding 60 years of age. At 60 years of age, the risk level reduces under the Static99 and Static99R.

(3) Mr Allen has not sexually reoffended since 2004, 14 years ago.

(4) Mr Allen did not sexually reoffend during his period of release on community supervision, even though he consumed alcohol during that time. He was in the community for more than three years.

(5) Mr Allen's poor conduct in custody can be seen as an expression of his frustration at being retained after his sentence had expired and his health issues.

1. I have considered the objective facts that Mr Allen has not sexually reoffended since 2004 and did not sexually reoffend during his period of release on community supervision, even though he consumed alcohol. However, considered in light of the evidence as a whole, I find that there has been no significant change in the risk Mr Allen presents.
2. Dr Wynn Owen, whose evidence I accept, identified several risk factors. These were contained in his first report. In his addendum report, he said there were no changes in Mr Allen's responses to questions about attitudes towards offending, sexual thinking and behaviour or preparation for release. In his oral evidence, Dr Wynn Owen confirmed that there were no changes in the risk factors.[74]
3. Mr Allen has made some progress since April 2016. However, the progress has been limited, and it is likely his engagement was motivated by how it would benefit him, rather than from any insight into his offending or acceptance of the need for treatment. He has asserted he will not drink alcohol anymore.
4. It seems that Mr Allen still does not understand how serious his offending was. When asked by Dr Wynn Owen on 23 April 2017 about how his offending may have affected his victims, Mr Allen's initial response was that he thought they would be upset. When Dr Wynn Owen raised with Mr Allen that he would be identified by others as a sex offender and the likelihood that his offences would have significant adverse psychological effects, Mr Allen became angry stating: 'that's bullshit, that's what you white people say, fuck you. It's not fucking serious to black fellas'. In oral evidence, Dr Wynn Owen said 'what I understood from that was, "You shouldn't take this seriously because I don't and my community don't take this seriously. This is our behaviour" '. Dr Wynn Owen said that he believed that Mr Allen was saying that aggressive and violent interaction was not taken seriously.[75] Mr Allen's remark certainly indicates he believes his sex offending was not of any importance.
5. Mr Allen continues to demonstrate distorted attitudes about women.
6. I accept that Mr Allen's poor conduct in custody is contributed to by his frustration at being retained after his sentence had expired and his health issues. However, I do not accept that his frustration entirely explains his conduct or is even the primary cause. On the contrary, I find that Mr Allen's poor conduct is primarily caused by his personality and attitudes. In particular, his conduct towards women is a reflection of his distorted attitudes towards them. I accept Dr Wynn Owen's opinions.
7. His personality and attitudes towards women remain unchanged. Therefore, the long period since his sexual offending and the fact that he did not sexually reoffend during his period of release on community supervision do not indicate any reduction in the risk that he poses.

1. Mr Allen is older now. I accept that his illnesses have aged him physically. I also accept that Aboriginal people have a lower life expectancy. However, I do not accept that this means his risk should be assessed as if he was actually 60 years old or older. Dr Wynn Owen explained that his assessment of Mr Allen's risk would be the same, even if the Static99 and Static99R were not used. Dr Wynn Owen also considered that Mr Allen remained a serious risk even though his physical capacity was reduced. Dr Wynn Owen noted that there was a degree of vulnerable victim selection in Mr Allen's pattern of offending.

1. I accept Mr Allen is not as strong as he was at the time he committed the sexual offences. I also accept that his offences were committed against adult women. Nevertheless, he is physically capable of committing a serious sexual offence.
2. Further, if he followed his previous pattern of offending, he would be advantaged by the element of surprise which could allow him to physically overpower a woman, even if she was objectively stronger than him.
3. Finally, Dr Wynn Owen pointed out that there appeared to be an element of selecting vulnerable victims in some of Mr Allen's offending. If he was not entirely fit, he is likely to select targets that are more vulnerable.

1. As noted earlier, it is for the State to satisfy me, by acceptable and cogent evidence, and to a high degree of probability, that there is an unacceptable risk that, if Mr Allen was not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence.
2. I am required to balance, on the one hand, among other things, the likelihood of Mr Allen committing a serious sexual offence and the type of sexual offence he is likely to commit if he did reoffend, and, on the other hand, the serious consequences for Mr Allen (either detention or being required to undergo what might be an onerous supervision order, long after his terms of imprisonment have been served) if an order is made. As noted earlier, the powers conferred by the DSO Act are not to be exercised for the purpose of imposing additional punishment on an offender, but for the ultimate purpose of protecting the community.
3. I have had regard to each of the matters specified in s 7(3) of the DSO Act.
4. In particular, I am satisfied, to a high degree of probability, of the following.

(1) Mr Allen has a propensity to commit serious sexual offences in the future. This is demonstrated by, in particular, his longstanding and immovable attitude to women and to this type of offending.

(2) Mr Allen has not made consistent, genuine efforts to address the causes of his offending behaviour. This is demonstrated by, in particular, the opinions of the various experts who have treated him, or evaluated him. For the most part, he engaged only when he thought it would get him what he wanted. I am positively satisfied, to a high degree of probability, that he does not have a genuine desire to change.

(3) Mr Allen has gained little from treatment, apart from his stated assertion that he will abstain from alcohol. This is demonstrated by, in particular, the reports of the various experts who have treated him, or evaluated him.

(4) Mr Allen's criminal record is serious. Each of Mr Allen's victims was a stranger to him. He followed the second victim into the women's toilets of a hotel. He assaulted the third victim on a footpath. He grabbed the fourth victim in the car park of a hotel. He followed the fifth victim from a petrol station to a caravan park, and assaulted her there. Mr Allen punched the first and third victims. He grabbed the first, second, fourth and fifth victims around the neck with both hands. This was described as choking in relation to the first, fourth and fifth victims. The fifth victim thought she was going to die.

(5) There is a substantial risk that, if Mr Allen was not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence. I accept Dr Wynn Owen's opinion, and am satisfied that the risk has been proved to a high degree of probability.

(6) There is a strong need to protect the community from that risk. This goes without saying. I further consider that, if Mr Allen did reoffend, it would likely be in a manner consistent with his pattern of past offending. Any such offence would be highly traumatic for the victim.

(7) While Mr Allen's health is imperfect, the medical opinions are that his mobility will not be affected. His health status does not mean he is physically incapable of committing serious sexual offences. Further, if he followed his previous pattern of offending, he would be advantaged by the element of surprise which could allow him to physically overpower a woman, even if she was objectively stronger than him. Finally, Dr Wynn Owen pointed out that there appeared to be an element of selecting vulnerable victims in some of Mr Allen's offending. If he was not entirely fit, he is likely to select targets that are more vulnerable.

1. Taking all of the factors into account, I am satisfied, to a high degree of probability, that there is an unacceptable risk that, if Mr Allen was not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence.

The second issue - should the detention order be rescinded?

1. The second issue is whether Mr Allen could be released into the community on a supervision order with conditions that would adequately protect the community by managing and sufficiently reducing the risk that he would commit further serious sexual offences.
2. Mr Allen's counsel accepted that, if I was to find that Mr Allen remained a serious danger, it would not be appropriate to revoke the continuing detention order. This was because there was no suitable accommodation for him at this stage. Further, Mr Allen's counsel conceded that, even if there had been, it would be difficult for the court to find that Mr Allen could be released into the community on a supervision order with conditions that would adequately protect the community by managing and sufficiently reducing the risk that he would commit further serious sexual offences.[76] This concession was not dependent on whether or not the recent amendments to s 31 applied to this review. It was simply a concession based on the evidence.
3. Despite the concession, it is necessary for me to consider the issue. As will be seen, in my view, the concession was properly made.

Continuing detention or conditional supervision order?

1. I consider that Mr Allen is unlikely to comply with the conditions of a supervision order. He repeatedly breached the supervision order he was previously on. The history of his engagement with counselling, and his behaviour in prison, does not give me confidence that he has any greater appreciation of the need for compliance, and the risk that he poses.
2. In assessing whether conditions of a supervision order can adequately protect the community from the risk of further offending, Mr Allen's pattern of previous offending is relevant. As noted earlier, each of Mr Allen's victims was a stranger to him and each offence seemed to be opportunistic. Unlike the offending pattern of some other sexual offenders, the authorities would not get any warning signs of a potential offence in time to intervene.
3. In an effort to target the contribution of alcohol to his offending, the conditions that would be imposed if a community supervision order was made include:

(2) not to consume alcohol, and undergo urinalysis;

(3) not to enter licenced premises apart from cafes and restaurants;

1. However, I am left in considerable doubt whether those conditions would adequately address the risk.
2. Dr Wynn Owen noted that Mr Allen showed physiological and behavioural evidence of alcohol withdrawal on his return to prison (after breaching the community supervision order imposed by Hasluck J); indicating regular ongoing alcohol use rather than sporadic breaches of conditions.
3. Ms Williams reported that Mr Allen has maintained treatment gains in relation to his commitment to abstinence from alcohol and was able to demonstrate an understanding of the effects of acute intoxication as well as how alcohol use has negatively affected his choices in the past. Mr Allen has reportedly acknowledged a link between his drinking and sexual offending behaviour, he has also made statements to the effect that he will avoid alcohol to reduce risk and that he will not seek to have contact with women.
4. However, Dr Wynn Owen reported that Mr Allen has been unable to outline a clear plan for discharge from prison, to avoid reoffending or to avoid alcohol. Dr Wynn Owen said that people who fail to devise suitable, safe, and realistic plans for discharge from an institution are at increased risk of criminality and violence after release. Added to that is the fact that Mr Allen still does not understand the seriousness of his offending, and continues to hold distorted attitudes about women. Accordingly, while Ms Williams is of the view that Mr Allen does have insight into his alcohol use, I doubt that he fully understands why he must not use alcohol. I am satisfied that he does not understand the harm that might be caused by him if he does.
5. Of particular concern is his response to Dr Wynn Owen's proposition that his offences could have significant adverse psychological effects on the victims. Mr Allen became angry and said: 'that's bullshit, that's what you white people say, fuck you. It's not fucking serious to black fellas'.
6. Further, in view of the likely type of offence Mr Allen would commit, it would only need Mr Allen to drink alcohol on one occasion, and take an opportunity to grab a victim, for a serious offence to occur. Again, as noted earlier, unlike the offending pattern of some other dangerous sexual offenders, the authorities would not get any warning signs of a potential offence in time to intervene.
7. I also note that, at this stage, there is no appropriate accommodation for Mr Allen in the community. If I had thought his risk could be managed, it would have been necessary to explore whether appropriate accommodation could be obtained.

Conclusion - whether the risk can be adequately managed in the community

1. Mr Allen remains a serious danger to the community. The risk that he will commit a further serious sexual offence, if not subject to a continuing detention order or supervision order, is significant.
2. The question is whether the proposed conditions would reduce the risk to a reasonably acceptable level that ensures adequate protection of the community. While I have been assisted by the evidence of each of the witnesses, each of whose evidence I accept, it is for me to decide this question.
3. The paramount consideration is the need to ensure the adequate protection of the community. However, this does not require that there be no risk of reoffending. The question is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community.
4. In my view, the likely risk scenario is of great significance to the evaluation. The risk scenario means that it is not possible to set up conditions of a supervision order that would ensure several layers of protection before the risk scenario could arise.
5. The nature of the risk is grave, and the degree is high, even with the proposed conditions. I accept Dr Wynn Owen's opinion that Mr Allen is a well above average risk of sexually violent offending if he was released into the community, even with the conditions that could be imposed.
6. If, after considering all the evidence, the court is left in doubt as to whether the conditions of a supervision order would adequately protect the community, the court must expressly decline to rescind the continuing detention order. More than being left in doubt, I am positively satisfied that the conditions of a supervision order would not adequately protect the community.

1. For these reasons, I do not consider that release on a supervision order would ensure adequate protection of the community. Consequently, I affirm the continuing detention order.

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

[1] Director of Public Prosecutions (WA) v Allen [No 3] [2014] WASC 455 (Allen [No 3]).

[3] Director of Public Prosecutions (WA) v Allen [No 4] [2016] WASC 132 [4] [10].

[5] Director of Public Prosecutions (WA) v Allen [2009] WASC 360 [25], [27] - [28], [31] [35] and [37].

[6] Director of Public Prosecutions (WA) v Allen [No 4] [25] [26].

[7] Director of Public Prosecutions (WA) v Allen [No 4] [31] [33].

[8] Director of Public Prosecutions (WA) v Allen [No 4] [34].

[9] Director of Public Prosecutions (WA) v Allen [No 4] [35].

[10] ts 361, 17 August 2017. See also ts 370, 10 November 2017.

[13] See the first Community Supervision Assessment report prepared by Ms Yun, senior community corrections officer and dated 18 April 2017, exhibit A page 104, and the report of Ms Williams, a senior clinical psychologist, dated 7 April 2017, exhibit A page 93.

[14] Although Ms Williams' report says she interviewed Mr Allen in February 2016, it was common ground that this was a typographical error.

[16] Report of Ms Williams, a senior clinical psychologist, dated 7 April 2017, exhibit A page 93.

[18] Email from Dr Wynn Owen to DPP dated 20 April 18, ts 389.

[20] As noted earlier, it was not until March 2010 that he was actually released under the 2009 order.

[57] That relevantly means an offence mentioned in pt B of sch 7 of the Evidence Act for which the maximum penalty is 7 years' imprisonment or more (or an offence of attempting to commit such an offence).

[58]In Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [34], the court said 'there is no requirement, for an order to be made under s 17(1) of the Western Australian Act, that the court must be satisfied that there is more than a 50% prospect that, absent a continuing detention order or a supervision order, the offender will commit a serious sexual offence. However, it seems to us, from the plain meaning of the language used, that the Parliament requires that the court must be satisfied to a high degree of probability (being more than the civil standard but less than the criminal standard) that there is an unacceptable risk of the kind mentioned in s 7(1). The court must therefore identify what it is (if anything) that constitutes the risk and makes the risk unacceptable, and then consider whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence'.

[59] See also Martin CJ in Director of Public Prosecutions (WA) v Yates [2014] WASC 136 [6], who noted that the two different expressions in the DSO Act ('an unacceptable risk that ... the person would commit a serious sexual offence' and 'serious danger to the community') have been given precisely the same meaning and that this construction of the DSO Act has been endorsed by decisions of the Court of Appeal of this State.

[60] Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393.

[63] Griffiths [13], citing Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246 [10].

[67] The State of Western Australia v West [2013] WASC 14 [52].

[68] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33], citing Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [57], [86]; Griffiths [20], [103], [107]; and Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [16].

[69] West [52(j)], citing The State of Western Australia v Latimer [2006] WASC 235; Director of Public Prosecutions (WA) v Decke [2009] WASC 312. See also Griffiths [22].

[71] Director of Public Prosecutions (WA) v McGarry [No 9] [2016] WASC 306 [65].

[72] Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178 [14] [19].

[73] The DSO Act has been amended such that now reviews are required to be conducted only every two years.