DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- DAL [No 2] [2016] WASC 212 (18 July 2016)

4 For the reasons that follow, I am satisfied that DAL remains a serious danger to the community, and that the need to ensure the adequate protection of the community means that the continuing detention order should not be rescinded.

5 Mitchell J outlined the respondent's offending and his convictions.

6 DAL was convicted of unlawful carnal knowledge of a girl under 13 years in July 1975 when he was 25 years old.

7 The respondent sexually offended against his daughter, LML, from 1979 to 1986, beginning when LML was 6 years old. The offending began with touching of the breasts and vagina, progressing to penile penetration when she was 10 years old.

8 He was convicted on his pleas of guilty of sexually penetrating LML and was sentenced in 1987 to a total effective sentence of 6 years.

9 The respondent was in custody from 1986 until 1989 when he was granted a work release order and then parole.

10 He commenced offending against his nephew, RJL, in the car on the way home from prison. The offending escalated to various forms of penetration and continued until the respondent went back to prison in October 1991. As will be seen, when he was released from prison, he resumed his offending.

11 In mid1990, the respondent commenced offending against RGH, who was 11 years old and the younger brother of a member of a children's football team that the respondent coached.

12 The respondent was convicted of two counts of unlawfully indecently dealing with a child (RGH) under the age of 13 years on 30 October 1991. He was sentenced to a total effective sentence of 3 years' imprisonment.

13 The respondent was released from prison during 1993 on a work release order and was granted parole in November 1993.

14 Shortly after release from prison in June 1993, the respondent recommenced offending with RJL, his nephew. His sexual abuse of RJL continued regularly until January 2000.

15 In November 2003, the respondent was convicted on his own plea of guilty of a number of offences of child abuse and sexual penetration of a child (RJL) between July 1989 and January 2000. He was sentenced to a total effective sentence of 12 years' imprisonment, backdated to June 2003, with no eligibility for parole.

16 The respondent was in custody from June 2003 until 2015 when the continuing detention order was made.

The decision of Mitchell J Serious danger to the community

17 After outlining DAL's offending and the evidence before him, Mitchell J considered the factors in s 7 of the Act. His conclusions included the following:

(a) both psychiatrists conclude the respondent presents a serious risk of committing further serious sexual offences;

(b) Sarah Ballantyne, a psychologist, made an assessment generally consistent with that of the psychiatrists;

(c) the respondent has a high propensity to commit further serious sexual offences on his release from custody, his paedophilia not being currently managed, and he having limited insight, a high libido for a man of his age, and continuing to fantasise about sexual activity with children;

(d) the past pattern of the respondent's offending behaviour is to commit serious sexual offences against young children very shortly after his release from custody, after having convinced those involved in attempts to rehabilitate him that he was at low risk of reoffending. Children of about 6 to 7 have been targeted, with the sexual relationship being continued into the teenage years. Victims have been both male and female, and sexual activity with a particular child has continued over an extended period of time;

(e) the respondent has been willing to engage in intensive sex offender treatment programs and individual psychological counselling;

(f) Mitchell J was not satisfied that his engagement in those programs had resulted in any substantial positive effect on his propensity to engage in sexual activity. Mitchell J found that the assessments made in those programs have not been reliable. He pointed out that following an assessment of the risk of reoffending as nonexistent, the respondent recommenced offending immediately on release. The respondent had engaged in deliberate deception, giving answers that he felt those running the program were looking for. He did not make adequate disclosure in the course of his involvement in the programs.

18 Mitchell J concluded that if not subject to a continuing detention order or a supervision order, he will commit serious sexual offences in the future and is a serious danger to the community.

Continuing detention or conditional supervision order?

19 Mitchell J concluded that he was not satisfied that the risk to the community presented by the respondent could be reduced to an acceptable level by the conditions of a supervision order. His reasons included the following:

(a) the propensity of the respondent to sexually abuse children was very high. He had little insight into his tendencies. The respondent had not received significant treatment focusing on his paedophilia. His psychological counselling had not focused on that issue and he was in the very early stages of being treated with medication;[2]

(b) his previous releases from custody have been followed by sexual offending against children within a very short period of time. He has previously manipulated treatment program facilitators;[3]

(c) the risks posed by the respondent cannot be adequately managed at either of the two alternative places where it is proposed that he might live. One of those is a complex of units in Coolbellup, however there are families with children residing in the same complex of units or nearby. The other proposed residence is his partner's house in Geraldton. The relationship was untested, and it is difficult to make any reliable assessment of the degree of support she could offer in respect of the risks of further sexual offending by the respondent.[4] Further, in Geraldton, the respondent could not access the intensive psychological counselling available in the metropolitan area;[5]

(d) it would be undesirable to release the respondent before proposed risk management measures have been applied and there has been an opportunity to reliably gauge their effect.[6] In this respect, Mitchell J made the following findings:[7]

In making that assessment, I do note that there are protective measures which could be put in place. The respondent could be subject to GPS monitoring, and restrictions as to his place of residence and employment while on a supervision order. His situation would be reviewed by a management team whose members would include a police representative from the Sex Offender Management Squad, the respondent's community corrections officer and a counsellor. Those officers would share information, including information provided by Ms S and the respondent's general practitioner. The respondent has indicated that he would consent to his doctor disclosing treatment information, or anything else that is required of him. However, ultimately much of the information on which the management team would rely would be derived from the respondent, who has a long history of failing to disclose matters relating to the risk he poses to the community.

If the respondent resumed his past mode of offending then he would develop a relationship with a child before moving to commit sexual offences against that child. The development of such a relationship would be a warning sign of increased risk of reoffending, as would the respondent ceasing medication, increasing sexual fantasies involving children or perceiving problems in his relationship with Ms S. However, those warning signs may not be detected if concealed by the respondent.

20 The DPP tendered, by consent, a book of materials, which included a report from psychiatrist Dr Gosia Wojnarowska, a treatment progress report by psychologist Dr Linley Poli, and a community service assessment by Ms Jane Henshaw of the Department of Corrective Services.[8] Those three witnesses gave oral evidenceinchief and were crossexamined. Their evidence is outlined immediately below.

21 DAL elected not to give or adduce any evidence on the review.

22 The report and evidence of Dr Wojnarowska, an experienced psychiatrist with considerable experience and training in relation to the assessment and treatment of dangerous sex offenders, includes the following:

(1) previous psychiatric and psychological assessments have expressed the view that DAL does not suffer from an identifiable psychiatric disorder, and that his offending has been consistently related to the presence of paedophilia;[9]

(2) DAL has been commenced on antidepressant medication to control his sexual urges and libido.[10] All the indications are that, since the dose was increased (to the still relatively low dose of 75 mg), the medication is working;[11]

(3) in consultation DAL revealed that he used to fantasise about his victims and continued having sexual fantasies about his nephew, against whom he has offended extensively, until recently;[12]

(4) DAL admitted to having strong sexual interest in prepubescent children, male and female.[13] DAL admitted that his primary sexual interest is in prepubescent children;[14]

(5) reference was made to the 32 sessions with DAL and to the treating psychologist's report as to progress.[15] The outstanding treatment need is in the relationship area, which is difficult to address in the prison setting;[16]

(6) in describing his cycle of offending, DAL said that he would usually start to fantasise about a child with whom he has an existing relationship, he would then start to think about the child as a partner and fantasise about having a relationship with him or her;

(7) DAL said that he would comply with any conditions imposed and would require ongoing psychological treatment as well as treatment with current medications;[17]

(8) DAL recognised continuing risk that he might reoffend, saying that he could not give an assurance that he would never reoffend;[18]

(9) DAL presents with a long history of sexual offending against children developed in the background of a traumatic childhood characterised by sexual abuse, neglect, physical abuse, and humiliation through which he learned to associate sexual activity with affection;[19]

(10) until treatment with antidepressant medication began, DAL experienced sexual fantasies about his last victim, his nephew.[20] His sexual fantasies have always centred on prepubescent children, as he admits.[21] As such, he fulfils the criteria for a diagnosis of paedophilia, exclusive type, attracted towards males and females;[22]

(11) his progress in addressing risk of reoffence factors needs to be treated with caution, as there has already been strong evidence of treatment failure in the past;[23]

(12) Dr Wojnarowska undertook a detailed risk assessment using a protocol known as the Risk Sexual Violence Protocol that included the following:

(a) DAL's chronic offending of a severe nature is a risk factor associated with recidivism;[24]

(b) the diversity of DAL's victims, varying between age six to late adolescence and both male and female is a marker for the presence of other risk factors;

(c) the evidence of escalation in his offending behaviour is also a marker for the presence of other risk factors;

(d) there is no evidence that DAL has made threats of violence;

(e) it appears that DAL is now able to accept personal responsibility for his offending and displays empathy and remorse;[25]

(f) DAL is able to verbalise awareness and the consequences of his sexual behaviour. In the past, however, his motivation to undergo treatment was more related to his desire to present himself in a favourable light than being genuinely motivated to change. It appears now that he understands his offending cycle and is genuine in his motivation to remain offence free.[26] It appears DAL has sufficient awareness of the factors potentially placing him at risk;

(h) DAL's historic difficulty in coping with stress remains relevant and his emotional balance will be challenged when exposed to the stressors associated with living in the community;[27]

(i) DAL continues to display sexual deviance in that there is clear evidence of paedophilia;[28]

(j) DAL has little history of intimate relationships. He hopes that his relationship with his current partner becomes intimate;[29]

(k) Although DAL received positive reports, on the two previous occasions he completed the intensive sex offender treatment programme, he admitted he was not engaged or motivated to change at those times;[30]

(l) he is motivated to benefit from further psychological treatment and his treatment of libido and sexual fantasies with antidepressants has evidently worked;[31]

(m) given DAL's personality structure with no clear antisocial attitudes and high motivation to not reoffend, it is anticipated he will be compliant with a supervision requirement;[32]

(n) Dr Wojnarowska considers he is highly motivated not to reoffend, saying that was demonstrated through his consistent engagement with individual psychological counselling; the fact there was nothing to suggest he had withheld information in these sessions; and that (he said) everyone in his life was aware of his history of offending.[33] She considers he genuinely does not want to hurt other people.[34]

(13) DAL's main risk factor for future reoffending is his sexual interest in prepubescent children. Despite his motivation not to reoffend, that risk is still high. There may also be risks associated with adjusting to life outside of custody;[35]

(14) any future reoffending by DAL is likely to be in a similar manner to the previous offences, which are predominantly within his family and associated with a period of grooming. He is not likely to abduct a child or use additional violence in his offending;[36]

(15) DAL continues to pose a high risk of sexual reoffending if not subject to a continuing detention order or supervision order;[37]

(16) his risk status has changed in the past 12 months since his previous review and Dr Wojnarowska expects he will cooperate with any orders;[38]

(17) the following recommendations are made to assist in managing DAL in the community;

(a) continuing psychological intervention is required with a handover from his current treating psychologist to an appointed community psychologist;

(b) as DAL agreed, close supervision was required including GPS monitoring, cross checking and frequent contact with a supervising team. The proposed conditions for a supervision order would qualify as the kind of close supervision she referred to;[39]

(c) any suitable employment would be of assistance;

(d) DAL would benefit from having access to community activities.

23 The treatment progress report of Dr Poli, a senior forensic psychologist, includes the following:

(1) there is an outline of DAL's treatments since June 2015. He has had regular individual counselling sessions with Ms Rankin, a psychologist from the forensic psychological service. He has attended 30 sessions with Ms Rankin, weekly until April this year;[40]

(a) she raised DAL's history of telling treatment providers what they wanted to hear, and that she believed he had been genuine with her during their counselling sessions, having made disclosures of things of which she would not have been aware;[41]

(b) she informed DAL at the outset that the goals of counselling included:

(i) to develop an increased understanding of attitudes and beliefs associated with sexual offending, such as consent and children as sexual beings;

(ii) develop a greater understanding of the relevant factors leading to the offending and ensuring those conditions do not arise again through the development of a risk management plan;

(iii) develop a selfmanagement plan that details strategies for managing high risk situations in the community;

(iv) exploring emotional experience and developing alternative strategies for managing low mood;

(v) explore relationship issues and potential ways of managing conflict or other relationship issues that may arise;

(vi) explore attitudes relating to his experience of abuse and how they affect his behaviour.

(c) DAL had made considerable development towards each of these goals;

(d) DAL's sexual preferences for same age adult females, and his attraction to children occurred only in a specific context, mainly when he was emotionally upset;[42]

(e) DAL has a good understanding of his offending behaviour;[43]

(f) DAL had spent time exploring his emotional experience and developing strategies to manage low moods;[44]

(g) DAL developed a range of strategies to employ in the event that he encountered conflict or other relationship issues with his current partner;[45]

(h) DAL has now developed an understanding of how his own experience of sexual abuse had influenced his attitudes and behaviour, saying he had initially not viewed his offending as being harmful to victims but he has demonstrated that he can now empathise with his victims;[46]

(i) she and DAL had spent time addressing his deviant sexual fantasies about his nephew and that DAL had developed a range of strategies to intervene to prevent him experiencing the negative thoughts and emotions that typically led to his deviant fantasies;[47]

(j) three of the biggest changes she had observed in DAL over the course of counselling were his increased willingness to speak with others, his positive relationship with his partner, and his increased level of insight;[48]

(3) what remained of his identified goals would be best addressed in the community, for example testing his selfmanagement, risk management and relationship skills;[49]

(4) DAL told Dr Poli that while he recognised that he is a paedophile, his sexual preference is not for children but for adult females.[50] His sexual preference for children had occurred only at specific times in the past when he felt depressed or insecure;[51]

(5) DAL told Dr Poli that his desire to achieve comfort and closeness with children was related to his difficulty in maintaining close relationships with adults;[52]

(6) DAL told Dr Poli that his ability to empathise with his victims and recognise the negative consequences of his offending had developed significantly;[53]

(7) the report set out in some detail aspects of what DAL said he had gained during the process of counselling.[54] In the course of this, DAL identified factors he believed contributed to his offences, a number of selfmanagement strategies to assist him in managing potential exposure to high risk situations and strategies to manage periods of low mood;[55]

(8) DAL told Dr Poli that he considers his current situation to be very different from what applied when he was previously released and that he had more support and had been open with people who supported him about his past offending;[56]

(9) when asked if he considered himself a danger to children, DAL said yes. He was realistic about his potential for reoffending and was aware he would always be a risk to children, saying that he could not guarantee he would never reoffend against children in the future, but stressing that he was now better equipped to manage that risk;[57]

(10) DAL admitted he felt nervous about the prospect of being around children once he is released, saying he wanted his partner to be with him or if not other adults;[58]

(11) DAL stated that he intended to live in Geraldton and reside with his partner in her home. He stated that he had some job possibilities there from people known to his partner;[59]

(12) Dr Poli expressed the view that DAL appears to have made good progress towards each of the identified goals, but there were several areas where continued work would be beneficial in order to maximise his chances of navigating any future release into the community;[60]

(13) DAL presented with a sound understanding of the attitudes associated with sexual offending and was able to describe how his previous attitudes had both contributed to and maintained his offending behaviour.[61] He showed insight into his previous offences and identified a number of situations that had preceded his offending behaviour, demonstrating a good understanding of how his emotional state was connected to his experience of deviant sexual fantasy;[62]

(14) while DAL has made good progress towards the identified goals for his treatment, there are several areas requiring continued attention regardless of whether he is in prison or in the community. These include ongoing work regarding the identification of high risk situations, rehearsal and strengthening of his risk management strategies particularly if he relapses into a negative emotional state,[63] improving his understanding of and the application of skills in selfmanagement,[64] rehearsal of skills and strategies to manage his mood,[65] continued discussion of his relationship with Ms S included exploration of any problems they are experiencing,[66] close monitoring of his experience of deviant and sexual fantasies,[67] and close monitoring of his sexual functioning including the effect of medication on his libido;[68]

(15) it is recommended that if DAL is released into the community, psychological counselling also include discussion and support regarding his adjustment to the community and close monitoring of his relationship with his partner;

(16) finally, Dr Poli notes that DAL has a history of performing well in treatment and presenting positively to counsellors only to reoffend within a short time following release. There is no objective way to measure whether DAL's presentation as having made gains in several areas is accurate. Nor is there any guarantee that treatment gains will assist him in refraining from reoffending in the future. Further, the gains he has made in the last 11 months remain untested and there is no guarantee that he can translate them into the community.[69]

24 In oral evidence Dr Poli said that if DAL is released to Geraldton, there is a psychiatrist available in the Geraldton team who could, after an appropriate handover from Ms Rankin, take over counselling of DAL.[70]

25 The community supervision assessment report prepared by Ms Jane Henshall, Senior Community Corrections Officer, includes the following:

(1) prison staff reported that DAL is not considered to be a management issue and had received a positive report;

(2) DAL proposes to reside with his partner at an address in an area near Geraldton;

(3) DAL's partner has been attending counselling to address her issues relating to being the victim of sexual abuse and protective behaviours she can implement in her relationship with DAL. She has advised that she will ensure no children come to the home and that there is no contact with children;

(4) near the proposed residence are parks and public spaces used by groups of unsupervised juveniles, often for antisocial behaviour involving drugs or drinking. There are also concerns of families in vulnerable positions in the vicinity. Further, there is a primary school located about 500 m away and others within a few kilometres;

(5) release to the proposed residence is not supported by Child Protection and Family Services given his history and potential access to children in the vicinity;

(6) further, testing in the vicinity of the residence revealed that network and GPS tracking is intermittent, meaning that real time tracking cannot occur when the signal drops out. Thus, any potential transgression by DAL into the proposed exclusion zone around the primary school could not immediately be detected;

(7) even if DAL lived elsewhere, those problems would remain if he visited his partner at her residence;

(8) his partner does not propose to obtain alternative accommodation but will assist in seeing if alternative accommodation in Geraldton can be obtained for DAL;

(9) inquiries have revealed that the DSO supported accommodation programme is not able to provide any residency for DAL;

(10) DAL's proposed employer advised that, due to the current down turn in the economy, he was no longer in a position to provide employment to DAL;

(11) it is proposed that, should DAL be released on a supervision order, he would be managed and supervised by members of the local risk management group. Given DAL's history of performing well in treatment and presenting positively but then reoffending soon after release, concerns remain regarding the extent to which DAL might make appropriate disclosures to the risk management group;

(12) the report sets out 47 recommended conditions should the court consider DAL suitable for release under a supervision order.

26 After the report was prepared, a new possible residence, located in central Geraldton, was proposed. There does not appear to be any significant issues with GPS coverage in that area. The proposed location is in a highly populated area close to schools and hospitals and other areas frequented by children, creating issues for case management.[71] Exclusion zones can and would be set.[72]

27 After the hearing, by leave, the DPP tendered an addendum community supervision assessment identifying potential exclusion zones in the area surrounding the proposed place of residence. These included a number of schools, parks, bushland and supermarkets in close proximity, in some cases only one or two blocks away. Dr Wojnarowska said that the plan of the proposed exclusion zone appeared wellprepared and well thoughtthrough, and had no other comments.

28 Section 33 of the Dangerous Sexual Offenders Act provides as follows:

(1) When the court, on an application made under section 29 or 30, reviews a person's detention under a continuing detention order, the court must rescind the order if it does not find that the person subject to the order remains a serious danger to the community.

(2) The court may, if it finds that the person subject to the order remains a serious danger to the community, either -

(a) expressly decline to rescind the order; or

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

(3) In making a decision under subsection (2), the paramount consideration is to be the need to ensure adequate protection of the community.

29 The first question for the court on an annual review is whether the person subject to the continuing detention order remains a serious danger to the community. If a person is no longer a serious danger to the community, the court must rescind the continuing detention order.[73] If the court finds the person remains a serious danger to the community, it must either expressly decline to rescind the detention order, or rescind the order and make an order that the person be released into the community on conditions that the court considers appropriate.[74]

30 In making a decision as to whether a person who is a serious danger to the community should continue to be detained or be released on a supervision order, the paramount consideration is the need to ensure adequate protection of the community.[75]

31 Section 7 of the Act informs the meaning of 'serious danger to the community'. It provides as follows:

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

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

(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.

32 In a passage adopted in a number of cases,[76] Corboy J set out principles established by earlier decisions as to the proper construction and effect of s 7 of the Act:[77]

(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) (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 [s 7(2)]. 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] 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].

(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].

(i) The court must make a continuing detention order or a supervision order once it is found that the respondent is a serious danger to the community: Woods v Director of Public Prosecutions for Western Australia [2008] WASCA 188; 38 WAR 217. The paramount consideration in deciding between the orders is the protection of the community. That does not mean that there is a predisposition to making a continuing detention order. As Hall J observed in Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312, '[i]t cannot simply be assumed that the most assured preventative is detention and therefore, the protection of the community will always favour such an order' [14].

(j) The court should choose the order that is 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: The State of Western Australia v Latimer [2006] WASC 235 and Decke.

33 In choosing between an indefinite detention order or 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.[78] The use of the word 'adequate' indicates that a qualitative assessment is required.[79] In considering whether a supervision order would adequately protect the community, account must be taken of conditions which can be placed on a supervision order so as to ensure the adequate protection of the community, the rehabilitation of the respondent and his care and treatment.[80] The 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 Act applies would ever be released. The question is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community.[81] That requires a weighing of the nature and degree of risk in the context of methods for the management and reduction of that risk.[82] 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, 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.[83]

34 The objects of the requirement for an annual review were explained by Hall J in Director of Public Prosecutions (WA) v Unwin [No 3]:[84]

The clear intention of the annual 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.

35 DAL did not dispute on this review that he remains a serious danger to the community.[85] Dr Wojnarowska's evidence supports that view, and I find accordingly.

36 The issue in this application is whether DAL 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.

Continuing detention or conditional supervision order?

37 It is clear, and not in dispute, that DAL has made significant progress since June 2015. In June 2015 DAL had little insight into his tendencies and had not received any significant treatment that focused on his paedophilia. His psychological counselling had not focused on that issue. Since June 2015, DAL has attended 30 individual counselling sessions with Ms Rankin. He has exhibited a significantly greater understanding of his own tendencies, and the patterns of his behaviour, as well as exhibiting empathy to victims and accepting that they did not consent to sexual activities. He has disclosed sexual fantasies and has accepted the need to develop strategies to prevent them recurring.

38 Dr Wojnarowska considers that DAL is likely to comply with the conditions of a supervision order, and that he is highly motivated not to reoffend.[86] Among other things, she considers that he does not want to create any further victims.[87]

39 In assessing whether conditions of a supervision order can adequately protect the community from the risk of further offending, DAL's pattern of previous offending must be given attention. DAL has not committed any offences against a person not well known to him. Dr Wojnarowska expressed the view, which I accept, that any future reoffending by DAL is likely to be in a similar manner to his previous offences, which have been predominantly within his family and have involved a period of grooming.[88] That element of DAL's offending and likely reoffending assists in the reduction of the risk of reoffending through the imposition of conditions under a supervision order. Under the proposed conditions of a supervision order, DAL would not be permitted to have any contact with a person under 16 years of age. Given his pattern of previous offences, and the evidence of Dr Wojnarowska, the risk to the community does not lie in the prospect of a single instance of contact with a child resulting in the commission of a sexual offence at that point. Rather, the risk of reoffending lies in DAL finding a means of developing a relationship with a child, after which he then commits a sexual offence against that child.

40 DAL would be subject to GPS monitoring, restrictions as to his movements, place of residence and employment. The situation would be reviewed by a management team. That team would include a Community Corrections Officer, a counsellor, and a police representative from the Sex Offender Management Squad. They would all share information, including information provided by his partner and medical practitioner.

41 In order for DAL to develop a relationship with a child, he would need to breach the conditions of his supervision order on a number of occasions. That would provide an increased opportunity for the detection by the management team of any such breaches before any sexual offence was committed.

42 DAL has informed Dr Wojnarowska that all his previous offending is 'out in the open', in that all those with whom DAL has an ongoing relationship are aware of his offending history. Dr Wojnarowska considers this to be important.[89] It is a protective factor in that it increases the likelihood that those around DAL will scrutinise his conduct to avoid any contact with children. Further, one of the proposed conditions enables Community Corrections Officers or police to speak with anyone associating with DAL and to disclose to them confidential information, including his offending history. Thus, if, for example, DAL were to become involved in a community club or society, the management group could ensure that the club was aware of DAL's previous offending and those at the club would be a further source of information.[90]

43 Thus, there are several layers of protection against reoffending.

44 The first lies in DAL himself. Dr Wojnarowska and his treating psychologist both express the view that he is motivated to avoid any reoffending, not only for his own sake, but also to prevent causing harm to other victims. DAL has demonstrated a willingness to make disclosures to his psychologist, including having a sexual fantasy about one of his victims.

45 Of course, it is one thing to make disclosure while in custody under a continuing detention order. It is another thing to make disclosure after release on supervision.

46 The GPS tracking system and close management and supervision, as well as the likely scrutiny of those around DAL, create a reasonable probability that a breach of condition in the form of contact with a child would be detected. That probability is magnified by the fact that multiple contacts would be required before DAL would develop a relationship with a child, so as to create the circumstances in which, based on his previous offending and Dr Wojnarowska's evidence, there is a real risk of sexual offending against the child.

47 All of these matters mean that circumstances could well be imagined in which the conditions imposed under a supervision order might provide adequate protection to the community so as to sustain the making of a supervision order. However, in my view, for the reasons that follow, that is not the position at this stage. At the least, I am left in considerable doubt whether the proposed conditions of a supervision order would adequately protect the community.

48 First, although DAL has considerably greater insight into his paedophilic tendencies than was the case in June 2015, concerns remain as to the extent of his insight. DAL admitted to Dr Wojnarowska that his sexual fantasies have always centred on prepubescent children.[91] He admitted to her that his primary sexual interest is in prepubescent children.[92] Yet, DAL told both Ms Rankin and Ms Poli that his sexual preference was for adult females and that his attraction to children arises only in the specific context of emotional stress.[93] While his tendency to act on his sexual interest in prepubescent children may well be enhanced in periods of emotional stress, his offending has been persistent over prolonged periods, planned and to some extent premediated.[94] I do not accept that DAL's primary sexual preference is for adult females. I accept Dr Wojnarowska's evidence in this respect, including her diagnosis of paedophilia, exclusive type, attracted towards males and females.[95] That diagnosis was not challenged.

49 For these reasons, it seems to me that DAL is still not able or willing to accept the full extent of his paedophilic tendencies.

50 Secondly, Dr Poli expressed the view that while DAL had made good progress, there were several areas where continued work would be beneficial in order to maximise his chances of navigating any future release into the community.[96] Those areas include further work regarding the identification of high risk situations; rehearsal and strengthening of his risk management strategies, especially if he is in a negative emotional state; improving his understanding of and the application of skills in selfmanagement; rehearsal of skills and strategies to manage his moods; and close monitoring of his experience of deviant and sexual fantasies and of his sexual functioning.[97]

51 In this respect, it should not be overlooked that DAL's offending occurred over a period of more than 20 years in which the only significant periods without offending were while he was in prison. Further, by 2015, when he had been in prison for 12 years, he had not had psychological counselling focused on his paedophilia. In that context, his counselling has been for a relatively short period.

52 Thirdly, DAL described himself as being nervous about the prospect of being around children when released,[98] and said that 'he could not guarantee that he would never reoffend against children in the future'.[99]

53 In my view, further counselling of DAL is necessary before it can confidently be concluded that the conditions of a suspension order will ensure the community is adequately protected. Among other things, that will increase DAL's confidence in his ability to avoid and manage situations that create a risk of reoffending.

54 Fourthly, DAL's history of successfully creating what were shown to be dramatically overoptimistic assessments of his ongoing risk of reoffending mean that concerns linger as to whether all the gains reported in the process of counselling are genuine, rather than an attempt to create a favourable impression in order to secure release. Dr Poli pointed to this concern in her report.[100] In this respect, I note Dr Wojnarowska's opinion that DAL has been genuine and forthcoming, and that impression management over a large number of one on one sessions would be very difficult to achieve.[101] Nevertheless, to my mind, concerns in this respect remain.

55 Moreover, Dr Wojnarowska gave evidence, which I accept, that if DAL became involved in grooming a child, he may become 'very secretive, and not forthcoming with information, especially to people he is engaged with, such as his psychologist, community corrections officers...'.[102] These would be 'very soft signs, and not easily detectible'.[103] Those concerns seem to me to be wellfounded, given DAL's successful deception for such long periods in hiding his abuse of close family members. DAL's history gives cause for concern that if he began to have contact with a child, he may become secretive and deceptive, and may succeed in deceiving those around him, as he did for many years. These considerations diminish the confidence with which it can be said that before any further offence was committed, a breach of the conditions of a supervision order would be detected.

56 Fifthly, notwithstanding the progress made since June 2015, Dr Wojnarowska considers that the risk that DAL will commit a further serious sexual offence is still very high.[104] In her report, Dr Wojnarowska did not express any opinion on the extent of the risk that if DAL is subject to a supervision order with conditions, he will commit a further serious sexual offence. In her oral evidence, Dr Wojnarowska was asked questions about whether the proposed conditions were appropriate and whether the conditions in the draft supervision order met her description of 'close supervision'.[105] She was not asked any questions about the extent of the risk that if DAL is subject to a supervision order with those conditions, he will commit a further serious sexual offence.

57 It is Dr Wojnarowska's opinion that, notwithstanding DAL's motivation and willingness not to reoffend, the risk of reoffending is still high.[106]

58 The absence of any opinion from Dr Wojnarowska on the extent of the risk of reoffending under a supervision order tends to invite caution before concluding that the proposed conditions of a supervision order would ensure adequate protection of the community.

59 Sixthly, there is the question of whether appropriate accommodation can be obtained for DAL. Counsel for DAL submits that accommodation at the recently proposed premises in central Geraldton would be appropriate and, in particular, there would be no difficulties in relation to GPS tracking.

60 If living at those premises, it is to be expected that DAL would nevertheless regularly visit his partner. As Ms Henshall observed in her community supervision assessment, the problems with the intermittent GPS signal in the area surrounding his partner's house would remain whenever he visited her there.

61 Moreover, while the proposed exclusion zones would go some way to alleviate concerns in relation to children at the schools, shops and parks very near the proposed residence, such concerns would remain. Because the proposed residence is so close to those places, children may regularly walk to and from school and parks and, in doing so, may well use streets outside the exclusion zone but very close to the proposed residence. That would provide opportunity for interaction, possibly regular, between DAL and a child in circumstances that might not be readily detected.

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

[1] Director of Public Prosecutions (WA) v DAL [2015] WASC 210.

[2] Director of Public Prosecutions (WA) v DAL [105].

[3] Director of Public Prosecutions (WA) v DAL [106].

[4] Director of Public Prosecutions (WA) v DAL [109] [111].

[5] Director of Public Prosecutions (WA) v DAL [112]

[6] Director of Public Prosecutions (WA) v DAL [113].

[7] Director of Public Prosecutions (WA) v DAL [114] [115].

[9] Exhibit A, Report of Dr Wojnarowska [7.1].

[10] Exhibit A, Report of Dr Wojnarowska [7.2].

[11] Exhibit A, Report of Dr Wojnarowska [17.26]; ts 120.

[12] Exhibit A, Report of Dr Wojnarowska [9.5].

[13] Exhibit A, Report of Dr Wojnarowska [9.5].

[14] Exhibit A, Report of Dr Wojnarowska [12.3].

[15] Exhibit A, Report of Dr Wojnarowska [10.3].

[16] Exhibit A, Report of Dr Wojnarowska [10.3].

[17] Exhibit A, Report of Dr Wojnarowska [13.2].

[18] Exhibit A, Report of Dr Wojnarowska [14.1].

[19] Exhibit A, Report of Dr Wojnarowska [16.2].

[20] Exhibit A, Report of Dr Wojnarowska [16.4].

[21] Exhibit A, Report of Dr Wojnarowska [16.4].

[22] Exhibit A, Report of Dr Wojnarowska [16.4]; ts 115 116.

[23] Exhibit A, Report of Dr Wojnarowska [16.4].

[24] Exhibit A, Report of Dr Wojnarowska [17.5] [17.8].

[25] Exhibit A, Report of Dr Wojnarowska [17.12].

[26] Exhibit A, Report of Dr Wojnarowska [17.14].

[27] Exhibit A, Report of Dr Wojnarowska [17.15].

[28] Exhibit A, Report of Dr Wojnarowska [17.17].

[29] Exhibit A, Report of Dr Wojnarowska [17.22].

[30] Exhibit A, Report of Dr Wojnarowska [17.26].

[31] Exhibit A, Report of Dr Wojnarowska [17.26]; ts 120.

[32] Exhibit A, Report of Dr Wojnarowska [17.27]; ts 124.

[33] Exhibit A, Report of Dr Wojnarowska [17.27]; ts 121 122.

[34] Exhibit A, Report of Dr Wojnarowska ts 122.

[35] Exhibit A, Report of Dr Wojnarowska [18.1].

[36] Exhibit A, Report of Dr Wojnarowska [20.1]; ts 118, 126.

[37] Exhibit A, Report of Dr Wojnarowska [22.1].

[38] Exhibit A, Report of Dr Wojnarowska [22.1].

[40] Exhibit A, Treatment Progress Report [9].

[41] Exhibit A, Treatment Progress Report [10].

[42] Exhibit A, Treatment Progress Report [15].

[43] Exhibit A, Treatment Progress Report [16].

[44] Exhibit A, Treatment Progress Report [18].

[45] Exhibit A, Treatment Progress Report [20].

[46] Exhibit A, Treatment Progress Report [21].

[47] Exhibit A, Treatment Progress Report [23].

[48] Exhibit A, Treatment Progress Report [25].

[49] Exhibit A, Treatment Progress Report [26].

[50] Exhibit A, Treatment Progress Report [33].

[51] Exhibit A, Treatment Progress Report [33].

[52] Exhibit A, Treatment Progress Report [35].

[53] Exhibit A, Treatment Progress Report [36].

[54] Exhibit A, Treatment Progress Report [37] [48].

[55] Exhibit A, Treatment Progress Report [39] [41].

[56] Exhibit A, Treatment Progress Report [45] [46].

[57] Exhibit A, Treatment Progress Report [49].

[58] Exhibit A, Treatment Progress Report [50].

[59] Exhibit A, Treatment Progress Report [51].

[60] Exhibit A, Treatment Progress Report [52].

[61] Exhibit A, Treatment Progress Report [52].

[62] Exhibit A, Treatment Progress Report [54].

[63] Exhibit A, Treatment Progress Report [53].

[64] Exhibit A, Treatment Progress Report [57].

[65] Exhibit A, Treatment Progress Report [58].

[66] Exhibit A, Treatment Progress Report [63].

[67] Exhibit A, Treatment Progress Report [63].

[68] Exhibit A, Treatment Progress Report [65].

[69] Exhibit A, Treatment Progress Report [67].

[73] Dangerous Sexual Offenders Act s 33(1).

[74] Dangerous Sexual Offenders Act s 33(2).

[75] Dangerous Sexual Offenders Act s 33(3).

[76] For example, Director of Public Prosecutions (WA) v Yates [2014] WASC 136 [5]; Director of Public Prosecutions (WA) v Comeagain [No 5] [2014] WASC 214 [27] [28]; Director of Public Prosecutions (WA) v Wesley [No 2] [2015] WASC 168 [32].

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

[78] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [57].

[79] Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 [20].

[80] Director of Public Prosecutions (WA) v Griffiths [103].

[82] Director of Public Prosecutions (WA) v Griffiths [107]; Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [16].

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

[86] Report of Dr Wojnarowska [17.27]; ts 124.

[88] Report of Dr Wojnarowska [20.1]; ts 118, 124.

[91] Report of Dr Wojnarowska [16.4].

[92] Report of Dr Wojnarowska [12.3].

[93] Treatment progress report [15], [33].

[94] Report of Dr Wojnarowska [17.10].

[95] Report of Dr Wojnarowska [16.4]; ts 115 117.

[97] Treatment progress report [53] - [65].

[100] Treatment progress report [67].

[106] Exhibit A Report of Dr Wojnarowska [18.1].