DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- GRIFFITHS [2015] WASC 393 (20 October 2015)

4 The issues for determination in this case are (1) is the respondent a serious danger to the community, and (2) if so, is the appropriate order one of indefinite detention or release into the community on a supervision order.

5 The respondent does not accept that he is a serious danger to the community or that orders under s 17 of the Act are open. However, on his behalf it is submitted that in the event that the court is of the view that he is a serious danger to the community, the appropriate outcome is a supervision order and not an indefinite detention order. It is submitted that any risk to the community could be reduced to an acceptable level by releasing the respondent on conditions that would allow him to return to live in his traditional country. The DPP's position is that, subject to there being suitable accommodation in the community, a supervision order would be appropriate in this case.

6 For the reasons that follow, I have come to the conclusion that the respondent is a serious danger to the community. Where the court finds that an offender is a serious danger to the community it must either order that the offender be detained for an indefinite term or make a supervision order. I have further concluded that at present there are no conditions that could be imposed that would adequately reduce the risk that he would commit further sexual offences if he were released into the community on a supervision order and that such an order is, therefore, inappropriate in this case. Accordingly, the appropriate order is one of indefinite detention.

7 The evidence in this case principally consisted of a volume of material, a programme completion report, a Community Supervision Assessment Report, a supplementary report from a psychiatrist and oral testimony of a number of witnesses called by the applicant.

8 The documentary material was tendered by consent. The book of materials consisted of historical information regarding the respondent's offending, his conduct and treatment in prison and reports prepared for this hearing. The reports included reports from two psychiatrists, Dr Mark Hall and Dr Sam Febbo. They were both called to give oral evidence and were crossexamined.

9 At the hearing on 27 and 28 August 2015 evidence regarding proposed accommodation in a regional centre was not available. Accordingly, the hearing was adjourned to obtain that evidence. I also asked for a supplementary report from one of the psychiatrists regarding the effectiveness of the medications being taken or to be taken by the respondent. Further evidence in these respects was given on 9 October 2015. The respondent did not elect to give, or to call, any evidence at the hearing.

10 Section 17 of the Act provides:

(1) If the court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the court may -

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

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

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

11 Section 7(1) of the Act states that before the court can find a person is a serious danger to the community, it 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, then the person would commit a serious sexual offence. If the court is satisfied that there is an unacceptable risk of the kind described in s 7(1) of the Act, it necessarily follows that the person concerned is a serious danger to the community: Director of Public Prosecutions (WA) v Williams [2007] WASCA 206 [66] (Wheeler JA), and Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 198 A Crim R 149 [21] (Steytler P & Buss JA).

12 Section 7(2) provides that the DPP has the onus of satisfying the court that a person is a serious danger to the community. The court has to be satisfied by acceptable and cogent evidence and to a high degree of probability. This is a standard that is greater than a finding on the balance of probabilities but less than a finding of beyond reasonable doubt, but is otherwise incapable of further definition: Director of Public Prosecutions (WA) v GTR [28] (Steytler P & Buss JA). This does not necessarily mean that the risk must be at some high percentage of probability, a risk may be less than 50% yet still be unacceptable. However, the court must identify what it is that constitutes the risk and makes it unacceptable and then consider whether or not those factors have been proved to a high degree of probability by acceptable and cogent evidence: Director of Public Prosecutions (WA) v GTR [34] (Steytler P & Buss JA).

13 A serious sexual offence is defined in s 3 of the Act to have the meaning given to that term in s 106A of the Evidence Act 1906 (WA). That means an offence mentioned in pt B of sch 7 of the Evidence Act for which the maximum penalty is seven years imprisonment or more. The respondent has committed three offences that fall into this category. He has also committed a number of other offences that are not characterised as serious sexual offences. Offences of other types 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: Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246 [10].

14 The DPP may make an application under the Act where a person is under a sentence of imprisonment for a serious sexual offence. At the time this application was made the respondent was serving the 3year sentence imposed on 30 July 2013.

15 What is meant by an 'unacceptable risk' was considered by Wheeler JA in Director of Public Prosecutions (WA) v Williams [63] [65]. In that case her Honour said that a judge is required to consider the likelihood of the person offending and the type of offence likely to be committed in considering whether the risk is so unacceptable that the interests of the community require a person be subject to further detention even though they have already been punished for whatever offence they may have actually committed in the past. That does not exclude the possibility that an unacceptable risk may be effectively addressed and minimised by a supervision order.

16 In Director of Public Prosecutions (WA) v GTR, Steytler P and Buss JA said at [27] that the word 'unacceptable' connotes a balancing exercise that will take into account the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim), the likelihood of the risk being realised and the serious consequences for an offender if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order).

17 Section 7(3) of the Act sets out a number of matters that the court must have regard to in considering whether a person is a serious danger to the community. Those matters are:

(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.

18 As s 7(3)(j) implies, the list of matters to be considered by the court is not a closed one.

19 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.

20 Once a court has concluded that an offender is a serious danger to the community it must make either an indefinite detention order or a supervision order: Director of Public Prosecutions (WA) v Williams [68] (Wheeler JA), and Director of Public Prosecutions (WA) v GTR [51]. In deciding between those two possibilities the paramount consideration is the need to ensure the adequate protection of the community: s 17(2). That does not exclude other considerations. The use of the word 'adequate' indicates that a qualitative assessment is required. 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: Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14].

21 Once a finding is made that the person is a serious danger to the community, the court may adjourn the proceedings for further evidence to be obtained to assist in deciding between a supervision order or continuing detention: Director of Public Prosecutions (WA) v Williams [45], [47] (Martin CJ) and [85] (Wheeler JA).

22 The court should choose the option which is least invasive or destructive of the respondent's right to be at liberty. At the same time it must ensure an adequate degree of protection of the community: The State of Western Australia v Latimer [2006] WASC 235, and Director of Public Prosecutions (WA) v Decke.

23 The court should not be concerned with funding concerns when setting the terms of a supervision order. The court can assume that, if an order is made, the executive will perform its function in protecting the community by provision of appropriate assessment and resources: Director of Public Prosecutions (WA) v Williams [81] (Wheeler JA).

History of offending and antecedents - s 7(3)(c), (d) and (g)

24 In deciding whether a person is a serious danger to the community the court must have regard to the person's antecedents and criminal record: s 7(3)(g). This means all prior offences, whether they be serious sexual offences or not, to the extent that such offences are relevant to the question of whether the person is a serious danger to the community within the meaning of the Act. It also requires consideration of the person's personal history, including the context in which past offences were committed.

25 The criminal record and antecedents are relevant in themselves, but are also relevant to whether the person has a propensity to commit serious sexual offences in the future: s 7(3)(c). They are also relevant to whether there is any pattern of offending behaviour: s 7(3)(d).

26 The respondent was born on 26 October 1966 in Wyndham. He is the oldest of his parents' five children. He was initially raised in Kununurra until the family moved to a community on their traditional land at Beasley's Knob or Tjulinum.

27 The respondent has described his father as 'very cultural' and that he was raised according to Aboriginal traditions. He described his father as strict but not violent. He said his father used to drink but gave it up around 30 years ago and that his mother had never consumed alcohol. He remembered a happy childhood in which he hunted with his father for food and also engaged in cultural activities. He had been through Aboriginal cultural transition customs to progress from child to manhood (psychological report of Ms W Wager dated 12 July 2013, exhibit A1, page 191).

28 The respondent attended a Catholic primary school in Kununurra, which he found hard at first. He did 'okay' and learned to read and write. He was then sent to a boarding school in Broome, which he recalls hating because he was separated from his people and his country. Half way through year 9 he absconded in order to return home. He was then sent to a high school in Kununurra, but did not remain there long before going to work on the Victoria River Station. Although the station was a long way from his home, he felt content because other family members were also working there.

29 In 1982 the respondent attended college in Port Hedland and studied mechanics for a year. He was then offered a job with a large mining company but did not take up the position as it was too far from his home. He then went to Hall's Creek where he did station work for a year or so. He went on to work on a mine and then, for several years, in community development. As to the latter, this involved being responsible for ensuring that aboriginal community stores were stocked and also doing odd jobs on those communities. He left that job as he felt he was neglecting his family, who seemingly resented his working at other communities (exhibit A1, page 192 - 193).

30 The respondent became sexually active at around 14 years of age and had one sexual partner before forming his first longterm relationship. He has had three significant relationships in his life which have produced seven acknowledged children. The first relationship commenced when he was 15 years of age and he and his partner were together for 12 years and had three sons. That relationship ended when the respondent had an affair with another woman. The other woman became pregnant but they did not continue a relationship. His second significant relationship lasted one year and produced a daughter. The respondent reported that that relationship ended due to his partner's jealousy and mistrust of him. The third significant relationship was an intermittent one that lasted for approximately six years and produced three children.

31 The respondent has an acknowledged drinking problem. He commenced drinking alcohol in his late teens and has admitted that he becomes markedly aggressive when under the influence of alcohol. His problematic drinking is long standing but there have been periods of up to six months where he has been successful in abstaining (exhibit A1, pages 193 - 194). He has also used cannabis on an occasional basis.

32 The respondent's first serious sexual offence was committed on 22 December 1997, when he was aged 31. He had committed some other offences prior to that date, but none of them were of a sexual nature. There were offences of common assault in 1993 and 1994, but it can be presumed that they were of a minor nature given that the sentence in both cases was a small fine. The facts of the serious sexual offence are that on the evening in question the respondent was drinking with a number of other men. The complainant, who was known to the respondent and who had herself been drinking at various places that night, was walking from one house to another. He followed her, pushed her over and held her head down in a puddle. He then ripped off her clothes and sexually penetrated her. In the course of the struggle he grabbed the complainant by the hair and struck her head repeatedly on the ground. As a consequence, the complainant suffered bruising, tenderness and grazing to her head and abdomen. He was charged with sexually penetrating the complainant without her consent and with the aggravating circumstance that he did bodily harm to the complainant, contrary to s 326 of the Criminal Code. He was sentenced to 6 years' imprisonment for this offence with an order that he be eligible for parole (exhibit A1, pages 91 95).

33 The next serious sexual offence was committed on 29 October 2003 at Kununurra. The victim in this case was a boy aged six years old. The respondent was in a relationship with the mother of the boy, who is not his child. He had been drinking and the mother left the house to go to the doctor's, leaving the child in the care of others. The respondent then attended at the house and went inside with the child. He locked the doors and took the child into a bedroom. In the bedroom he took the child's underpants off and undressed 'to some extent' himself. He then put a finger into the child's anus. Other people returned to the house and found that the doors were locked and demanded that they be opened. The respondent opened the doors and ran off and was found some distance away shortly afterwards. The child was examined but there were no physical marks or injury. The respondent was charged with one count of sexually penetrating a child under the age of 13 years contrary to s 320(2) of the Criminal Code. He pleaded guilty to that offence and on 5 August 2004 was sentenced to 2 years' imprisonment with an order that he be eligible for parole. That sentence was backdated to 8 November 2003.

34 The next serious sexual offending occurred on 31 August 2012, and also occurred in Kununurra. The victim on this occasion was a 12yearold girl. She was ordinarily resident in the Northern Territory but had been staying for a few months with relatives in Kununurra prior to the offence. Her mother was formerly the respondent's de facto partner. At about 7.15 pm the girl was in the rear yard of the house in which she was staying, taking clothes from a washing line. He approached from behind her, pulled her head back and covered her mouth with his hand. He then dragged her away from the house behind a vehicle parked in a dark corner of the rear yard. She struggled and tried to kick him in order to escape, but he pulled her back and told her to shut up. She fell to the ground and he sat on her. He pulled her shorts and underwear down and removed his own shirt. He also managed to remove his penis from his shorts and asked her to touch it, but she refused. At this point the victim's cousin entered the rear yard to make a telephone call and heard noises. The cousin approached the car and called out. The respondent jumped up and ran off. He was later arrested and charged. He told a psychologist that he was so intoxicated that night that he could not remember much of what had occurred. He said that he had been drinking to excess for more than a week prior to that evening and had consumed approximately 15 to 20 cans of beer in the course of that day. He was charged with unlawfully detaining the victim contrary to s 333 of the Criminal Code and indecently dealing with a child under the age of 13 years by touching her bottom contrary to s 320(4) of the Criminal Code. He pleaded guilty to those offences and on 30 July 2013 was sentenced to 18 months on the first count and 3 years on the second count, both sentences to be served concurrently. Only count 2 is a serious sexual offence, but count 1 is clearly relevant in assessing the circumstances of the offending. An order was made that he be eligible for parole.

35 Other than the two common assault convictions in 1993 and 1994 which I referred to earlier, there are no other convictions for offences of a sexual nature or involving violence. It is relevant to take into account the periods of time that the respondent has been in custody. He commenced serving the first sentence on 29 November 1999 and was released on parole on 30 November 2001. The second serious sexual offence occurred whilst he was on parole. He was arrested for the second offence and remanded in custody from 3 November 2003. Parole for the first offence was suspended on 25 November 2003. After serving the balance of the first sentence, he became eligible for parole on the second sentence in 2006, but was denied parole at his own request. He was released from custody on 30 August 2006 having served the second sentence in full. Between 2007 and 2008 he spent approximately eight months in custody on remand for unrelated offences. In March 2011 he spent a further two weeks in custody for a fine default. He was remanded in custody for the third serious sexual offence on 6 December 2012 and has remained in custody since that date, completing his sentence for that offence on 4 September 2015.

Efforts to address offending behaviour - s 7(3)(e)

36 It is necessary to consider whether the respondent has made any efforts to address the cause or causes of his offending behaviour, including participation in any rehabilitation programmes: s 7(3)(e).

37 Between 27 September 2000 and 11 December 2000, the respondent took part in an Aboriginal prerelease sex offender treatment programme at Greenough Regional Prison whilst serving the sentence for the first offence. The programme was of 13 weeks' duration and included 20 hours of substance abuse counselling. Because of the length of time between the programme completion and his release date, the respondent was interviewed at Roebourne Regional Prison on 25 May 2001 to ascertain whether he had maintained treatment benefits since completing the programme. The treatment report (exhibit A1, pages 171 175) states that although he was initially prevented by his shame from contributing openly in group sessions, he later became a very proactive group member who encouraged others to explore the underlying issues surrounding their own offending. His tendency to overwork and overuse of alcohol were identified as precipitating factors that led to his sexual offending. He also came to recognise his own cognitive distortions in interpreting the victims' actions as being flirtatious. He expressed remorse for his conduct and accepted full responsibility for his offending behaviour. The report stated that he had developed a well thought out and seemingly robust relapse prevention plan. He was said to have participated in treatment in a 'highly commendable manner' and to have retained treatment benefits when interviewed six months later. He was assessed as being at a low risk of reoffending and his release to parole was supported by the report writer.

38 Between 19 April and 28 November 2005, the respondent participated in an intensive sex offender treatment programme at Bunbury Regional Prison whilst serving the sentence for the second serious sexual offence. The treatment completion report (exhibit A1, pages 177 - 184) states that he was seen as being sexually preoccupied. He appeared to recognise this and subsequently developed a relapse prevention strategy to reduce this preoccupation. His plans also included abstaining from drinking alcohol and avoiding associating with males who are intoxicated and sexually objectifying women. The report states that whilst the respondent appeared genuine in his plan, he had been previously unsuccessful in implementing a relapse prevention strategy. Because the second offence related to a child, this was an area of some focus. He denied any general sexual attraction to children and denied any sexual intent with the victim of the second offence, saying he was only making a joke. During treatment this position shifted and he disclosed feeling sexually aroused after seeing the victim's bare bottom. However, he remained unclear as to his motivation to offend and denied prior sexual fantasies about the victim or other children. He also developed an understanding of how his belief about sexual entitlement had made it easier for him to offend. He acknowledged his sexual objectification and distorted thinking about other people as sexual objects. He was encouraged to include empathetic thinking into his relapse prevention plan. Whilst the respondent had continued to deny any sexual interest in children, he did identify other factors which facilitated his offending, including alcohol abuse, sexual objectification of women and children, stress and being alone with children. The report states that he would clearly benefit from continuing to work on his issues and this included being given some form of sex offending maintenance counselling on his release. The report concluded that the respondent had made some progress to improve his functioning and that he was in a medium to high risk category for reoffending. Supervision and monitoring on parole were considered appropriate. This included no unsupervised contact with children under 16, attendance at a maintenance programme for sexual offending, ongoing alcohol counselling or support and relationship counselling.

39 Between 2 October and 5 December 2014, the respondent completed a Pathways programme whilst at Greenough Regional Prison serving the sentence for the third serious sexual offence. The Pathways programme is a 100hour structured programme which provides treatment to individuals who have a history of offending behaviour and substance use problems. It is an intensive cognitive-behavioural skills based programme. At the commencement of this programme he reported a traumatic childhood in which he experienced neglect, domestic violence, emotional and sexual abuse (treatment report exhibit A1, page 210). This is not consistent with accounts given to other report writers. What was consistent was that he said that alcohol was a significant factor in all of his offending, that he had a tendency to binge drink and that when he did so, he became aggressive. The programme involved 50 sessions, all of which he attended. He presented as a quiet and cooperative participant who was willing to engage and to assist others. Early in the programme he told facilitators that he had concerns at discussing his sexual offending in public but was prepared to write about it in a work book. Accordingly, he focused mainly on his alcohol consumption during the programme and less on his offending history. He developed a risk management plan to assist him in remaining sober. The plan was said to demonstrate a good understanding of actions that will support him in changing his behaviour. However, it was noted that he lacked stable protective factors and that his past drinking behaviour was entrenched. Drinking had served an important function in suppressing uncomfortable emotions and it was thought that he would benefit from ongoing support to develop his coping skills without the use of alcohol. It was noted that the programme did not address treatment needs with regard to his sexual offending and that these needs remained outstanding (exhibit A1, page 212). The facilitator suggested that the respondent would benefit from ongoing support in achieving his substance use goals. This could be in the form of ongoing case management, individual counselling or regular urinalysis, depending on the resources available.

40 Between 16 March and 17 August 2015 the respondent participated in a second intensive sex offender treatment programme whilst at Karnet Prison serving the sentence for the third serious sexual offence. His treatment needs were identified as being his attitude towards women, deviant sexual interests, lack of relationship skills, selfregulation issues and entrenched alcohol use. He was assessed as being a high functioning participant who understood the majority of the concepts discussed. The treatment report (exhibit A2, pages 12 13) states that the respondent demonstrated an increased awareness of the factors that contributed to his offending behaviour. He developed strategies for addressing these factors that were considered to be realistic, though he would need close monitoring and professional support.

Psychiatric reports and the extent to which the respondent cooperated with psychiatric examinations - s 7(3)(a)

41 The court ordered the respondent to undergo examination by two psychiatrists, Dr Mark Hall and Dr Sam Febbo. Both psychiatrists met with him for the purpose of preparing reports. He fully cooperated with the psychiatric examinations. The reports were tendered and both psychiatrists gave oral evidence at the hearing.

42 Dr Hall reported (exhibit A1, page 251) that the respondent was guarded about his sexual history. He did, however, describe a long history of high sex drive, with frequent masturbation in adolescence and sexual intercourse on an almost daily basis in adulthood. He said that he had been unfaithful to all of his partners, engaging in casual and impersonal sexual encounters outside the relationships on a frequent basis. He said that he had been sexually preoccupied, objectified females and had possessed a sense of male sexual entitlement. On further inquiry, he described having recurring sexual urges, some of which involved children. He said that he had had these thoughts since his early twenties and experienced them as unwanted and intrusive. He said that masturbation would 'kill them' (the thoughts). He also said that he had had intrusive sexual ideation regarding his most recent victim prior to the offending. He reiterated that the inappropriate sexual thoughts were unwanted and that he had no intrinsic desire to act on them and no sexual interest in children. He claimed to have had 'no libido' over the past three years.

43 At the time Dr Hall interviewed the respondent, he was participating in the intensive sex offender treatment programme at Karnet Prison. He said that in the past he had undertaken such programmes in order to get out of gaol but that the difference now was that he wanted to 'do it for me'. Given the need to develop more insight into his offending, Dr Hall strongly suggested to the respondent that he disclose his history of inappropriate sexual thoughts about children to the facilitators of the programme. He agreed to do this. Subsequent checking by Dr Hall confirmed that the respondent had carried through with that promise. Dr Hall said that this supported the respondent's claim that he was genuinely interested in addressing this issue, rather than merely playing lipservice to it during the interview (ts 21).

44 Dr Hall considered that selective serotonin reuptake inhibitor (SSRI) medications could be beneficial to the respondent in the management of his intrusive thoughts and sexual urges. Such medication is also effective in reducing libido. SSRI medication is reasonably effective in reducing the intensity and frequency of intrusive thoughts of a sexual nature where they are not learned behaviour but a manifestation of an obsessive compulsive type disorder (ts 19). The respondent indicated a keen interest in undertaking such treatment and commenced taking fluoxetine on 13 July 2015. Dr Hall noted that the starting dose was generally lower than is typically necessary to suppress the kinds of symptoms experienced by the respondent and would most likely need to be increased over time (exhibit A1, page 253). It was usual practice to commence on a lower dose and increase it over time. The desired effect could be determined within 10 to 12 weeks (ts 20).

45 In regards to alcohol, the respondent told Dr Hall that he had found the Pathways programme helpful and that he had learned how to assert himself and to frame his decisions to refuse alcohol. He said that he intended to go to meetings of Alcoholics Anonymous in the community. He impressed Dr Hall as having a strong desire to abstain from alcohol. He was open to the idea of taking a medication that could either reduce cravings for alcohol or produce an unpleasant physical reaction in the event that alcohol was consumed.

46 Dr Hall diagnosed the respondent as having a 'paraphilic disorder not otherwise specified'. He said that this was the appropriate diagnosis rather than paedophilia because there was little that had thus far come to light in respect of the respondent's psychosexual realm. He said that paraphilic disorders were generally considered to have a basis in the dysregulation of serotogenic pathways and thus have some similarities with anxiety disorders including obsessive compulsive disorder. The respondent also displayed some other obsessive compulsive traits.

47 In regard to assessing the risk of reoffending, Dr Hall said that it was difficult to predict recidivism with accuracy. The available tools are divided into two categories, actuarial instruments and structured professional judgment tools. Actuarial instruments use static risk factors. The Static 99R test is an actuarial tool designed to assess the longterm potential for sexual recidivism amongst adult male sex offenders. The Hare Psychopathy Checklist - Revised (PCL-R) assesses the extent to which an individual's personality structure conforms to the clinical construct of psychopathy. The PCL-R score has come to be recognised as a useful indicator of likely future recidivism for general, violent and, to a lesser degree, sexual offending. Structured professional judgment tools, in contrast, use both static and dynamic risk factors. They require clinicians to consider different factors which impact upon the assessment of risk. The tool used by Dr Hall was the Risk for Sexual Violence Protocol (RSVP), which considers a comprehensive range of risk factors for sexual offending with emphasis given to manageability of the risk of future sexual violence.

48 Dr Hall said that the respondent's score on the Static 99R test placed him in the moderate to high risk category for reoffending. However, he said that the instrument had been developed in other countries and cultures and should only be applied to indigenous people with caution. It is possible that risk factors for Australian indigenous people may differ to those on whom the instrument has been validated. Dr Hall doubted that an ideal instrument could be developed for indigenous people given the large number of distinct language, skin and geographical subgroups. He said that for this reason it was important not to abandon Static 99R, but rather to use it in conjunction with other tools.

49 The respondent's score on the PCLR test was in the low to moderate range. This indicated that he had few of the features of psychopathy. Accordingly, Dr Hall did not consider that psychopathy was considered to be present or to be a risk factor in the respondent's case. Dr Hall's scoring of a number of items in the PCLR differed from that of Dr Febbo and resulted in a markedly different conclusion in respect of psychopathy. In evidence Dr Hall explained his scoring by reference to the item descriptors. In particular, a number of items referred to behavioural traits, such as impulsiveness, or compulsive lying, and Dr Hall's view was that such a trait was not established by single or seemingly isolated historical instances of such behaviour. What was required was some evidence that the behaviour was an intrinsic part of the person's personality, as any person could behave impulsively or might lie in certain circumstances. In any event, Dr Hall said that the PCLR had not been designed as a predictor of sexual reoffending and was not, in itself, particularly useful in that regard (ts 60 74).

50 As regards the RSVP tool, Dr Hall reported that the respondent possesses a number of risk factors for future sexual offending. These included the fact that he had offended on three separate occasions over a period of 15 years, the diversity of his victims in age and gender, and the use of physical and psychological coercion. The respondent possessed some attitudes that supported or condoned sexual violence and had problems with selfawareness and in coping with stress. He was also considered to have the risk factor of sexual deviance, in that he may possess a deviant sexual interest in children, and problems with substance abuse, namely alcohol dependence. As to manageability, Dr Hall noted possible problems in finding appropriate accommodation. There was also the issue that placement in the far northwest may limit the respondent's access to specialist psychological treatment and supervision. Dr Hall noted that it was also too early to determine whether SSRI medication had been effective.

51 Dr Hall concluded that in his opinion the respondent is at high risk of committing a serious sexual offence if not subject to continuing detention or a supervision order. However, he said that release on a supervision order was a viable option but that management should include supervision, accommodation in or around the regional centre where the respondent proposed to live, continuing psychological counselling and medication including SSRIs and treatments to support abstinence from alcohol. Whilst there is a risk that overintensive monitoring or onerous conditions will increase the risk of reoffending by adding to the respondent's stress, Dr Hall had considered the conditions suggested by the applicant and said that there was nothing in them that the respondent would find particularly onerous (other than a requirement not to leave the State, given that his traditional country is over the State border).

52 A supplementary report dated 7 October 2015 was provide by Dr Hall to provide an update as to whether the SSRI medication was having the desired effect on the respondent's obsessive compulsive disorder and paraphilic symptoms (exhibit A7). Dr Hall interviewed the respondent on four further occasions following the initial hearing. By the time of the report the respondent had been taking the SSRI medication for a total of 11 weeks (the dose rate having been increased during that period). The respondent reported an absence of intrusive sexual thoughts and had experienced only minor side effects. He had displayed a positive attitude to treatment and a willingness to continue taking the medication in the long term.

53 In his supplementary report Dr Hall also reported that the respondent had commenced taking Naltrexone, an opioid agonist, a medication used both to reduce cravings for alcohol and the pleasure normally experienced when alcohol is consumed. Since the respondent had not recently reported any craving for alcohol it was impossible to gauge the effectiveness of this medication. It was being used as part of a general relapse prevention strategy. The respondent had also expressed a desire to continue taking this medication in the community.

54 Dr Febbo reported (exhibit A1, page 271) that the respondent described a history suggestive of obsessive compulsive symptoms. He also diagnosed the respondent as having 'probable paedophilia'.

55 Dr Febbo also used the Static 99R, PCLR tests and the RSVP tool in assessing the risk of future sexual offending. On the Static 99R test Dr Febbo placed the respondent in the high risk category. He noted that this test does not take dynamic factors into account.

56 As regards the PCLR test, Dr Febbo scored the respondent more highly on a number of items that comprised that test, however the total score was still below that generally used to diagnose psychopathy. In evidence Dr Febbo explained the basis on which he had determined the scores. He placed more emphasis on incidents relating to the respondent's offending behaviour as being indicative of personality traits. Dr Febbo said he had a concern that there was a degree of psychopathy that had not been taken into account in past treatment. The respondent is an articulate and intelligent person and this might make psychopathic tendencies difficult to pick up. This did not mean that the risk of reoffending was necessarily less manageable, however Dr Febbo was inclined to think that there had been an overemphasis on factors such as alcohol use and this had deflected attention away from personality related factors.

57 As regards the RSVP tool, Dr Febbo said that the respondent had demonstrated the risk factors of psychological coercion, escalation of violence, chronicity, diversity and physical coercion in relation to sexual violence. In relation to psychological adjustment he noted problems with selfawareness, minimisation of sexual violence and problems with stress or coping. In regard to any mental disorder, Dr Febbo noted problems with substance abuse and that risk factors of psychopathy and sexual deviance were partially and possibly present. There was no major mental illness. The respondent also had some issues in regard to social adjustment, in particular relating to other people and fulfilling social roles. Problems with nonintimate relationships and employment were partially or possibly present.

58 Dr Febbo noted that it was a concerning feature that despite the respondent apparently successfully completing several programmes he had returned to drinking excessively and reoffending when placed back in the community. He did however accept that it was significant that the respondent had spent 5½ years in the community on the second occasion without sexually reoffending.

59 Dr Febbo noted that the risk factor of sexual deviance was a major component of the respondent's presentation that had been largely unaddressed by psychological or pharmacological intervention. He was of the view that this needed to be further explored, assessed and addressed. However, he did accept that this was a factor that had been referred to and to some extent addressed in the intensive sex offender treatment programmes, particularly the more recent one. Dr Febbo also agreed with Dr Hall that the use of SSRI medication could be beneficial in dealing with intrusive sexually deviant thoughts. He thought that the benefits in this regard might be apparent earlier than three months and that medication could be used in combination with psychological strategies, such as cognitive behavioural therapy. If SSRIs did not work other antidepressant medications were available that were equally if not more effective.

60 Dr Febbo also agreed that alcohol use was a risk factor which could be addressed by medication in conjunction with counselling. He suggested Antabuse, which produces significant negative physical consequences such as headache and nausea if the person drinks alcohol. The half life of this medication is quite lengthy and thus would remain effective even if the respondent missed a daily dose. A possible alternative was Naltrexone which has the effect of decreasing the euphoric effect of alcohol. One of the factors that needed to be taken into account was that the respondent's drinking was likely to be influenced by peer pressure in a social context.

61 Dr Febbo concluded that in the absence of sexual deviance being explored and addressed, together with a continuing risk of alcohol abuse, the respondent's risk of reoffending in the community would be high. However he considered that there were options for managing the risk. These included intensive psychological intervention, counselling and pharmacological intervention in respect of alcohol abuse, the possible use of antilibidinal medication, monitoring through Corrective Services, police resources and use of GPS devices.

62 Dr Angela Cooney is a senior forensic psychologist employed by the Department of Corrective Services. She prepared a report in order to assist with the identification of relevant supervision, management and intervention strategies should the respondent be made subject to an order under the DSO Act.

63 Dr Cooney considered a number of risk factors that were relevant in formulating a case management plan. One of these factors was social supports. The respondent maintained that he had positive social supports in the community but there was a concern that in the past, during periods of high stress or difficulty, he had gravitated towards peers who had encouraged substance use and the sexualisation of females. He also reported feeling a sense of loneliness which he attributed to his distance from his country and family whilst in prison. He reported generally having the support and love of his family and social rejection and loneliness were not apparent as significant issues. A lack of concern for others was considered to be a risk factor however the respondent indicated a commitment to the bettering of his community and maintaining cultural practices. He also expressed regret regarding the likely impact of his offending on the victims. Dr Cooney concluded that there were no indications that the respondent holds a callous disregard for others. He does not have a history of general lifestyle impulsiveness and has demonstrated an ability to maintain employment and stable accommodation for lengthy periods. He has experienced difficulties in the past with problemsolving and Dr Cooney considered that he appeared to underestimate the challenges that he is likely to face in managing and containing his sexual thoughts and behaviours effectively.

64 Dr Cooney stated that if the respondent was made subject to a supervision order the most appropriate and immediate intervention would be monitoring of the relevant risk factors. This should occur in the context of facetoface supervision sessions. However, there were a number of other issues that needed to be focused on. These included accommodation, alcohol use, structured activity and psychological counselling. In regard to accommodation Dr Cooney reported that the respondent required placement in stable accommodation in which his exposure to prepubescent youths or vulnerable adults was limited. It was recommended that high risk areas or situations be identified on an ongoing basis with restrictions being placed on him in regard to his movements. The respondent also requires ongoing intervention in relation to managing his alcohol consumption. Transition to the community is likely to result in increased exposure to situations in which alcohol consumption is socially expected and encouraged. The respondent would require ongoing intervention and support to consolidate the knowledge and skills he may have acquired in prison. He would also require close monitoring in relation to alcohol use, with any relapse met with immediate consequences. Involvement in employment and recreational activities would assist to avoid boredom and provide the respondent with increased meaning and drive. Such activities would also provide an opportunity to develop social supports that may be supportive and positive. Dr Cooney recommended that the respondent be supported in exploring suitable structured activities in the community. As regards psychological counselling, Dr Cooney reported that her enquiries had indicated that counselling could be facilitated in the regional town in which the respondent proposes to live through Adult Community Psychological Services (under the supervision of the Forensic Psychological Service). The counselling should address the respondent's outstanding treatment needs but also include a focus on adjustment to the community, consolidating skills and knowledge developed through programmes and assisting the respondent to implement his own risk management strategies.

65 Dr Cooney noted that the respondent had expressed a preference to return to a regional centre due to his family and cultural connection with that place. However, she understood that locating suitable accommodation in that area may be a challenge. However placement in other areas may raise problems of loneliness, social isolation and cultural disconnection. In the past feelings of disconnection have been managed by the respondent through increased reliance on alcohol consumption and association with negative peers. Accordingly living in some other location might increase the risk of stress and alcohol use.

The propensity to commit serious sexual offences in the future - s 7(3)(c)

66 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.

67 The respondent has committed three serious sexual offences over a 15 year period between 1997 and 2012. The first of those offences occurred when the respondent was aged 31. There are no other offences on the respondent's criminal record that indicate any tendency to sexual offending. It is also apparent from his record that he has spent long periods of time in the community without committing any sexual offences. Whilst the victims of the offending differed in age and gender, there were some similarities. On each occasion the respondent was affected by alcohol and the victims were people who were known to him. The first and last offences involved a degree of violence and the second and third offences were committed against children. It can be inferred from this that the respondent does have a tendency to commit sexual offences, but it is not one that manifests itself in frequent offending.

Whether or not there is any pattern of offending behaviour - s 7(3)(d)

68 As I have noted there was no obvious pattern in respect of the age or gender of the victims. The most significant common feature was intoxication. This may suggest that controlling alcohol use may be an effective way of managing risk in the community. However, it is important to bear in mind the suggestion by Dr Febbo that overemphasis on alcohol use may obscure the importance of other factors such as sexual deviance.

The risk that a serious sexual offence will be committed if a continuing detention order or supervision order was not made - s 7(3)(h)

69 The psychiatric evidence is that the respondent continues to be at high risk of committing further serious sexual offences. This assessment of risk takes into account his history of alcohol abuse, his deviant sexual interest in children and his unmet treatment needs. Whilst he has undertaken a number of treatment programmes they have not in the past been effective in preventing further offending. On each occasion his engagement with programmes has been seen to be positive. Similar results have been achieved in the Pathways and the ISOTP programmes completed in the respondent's most recent term of imprisonment. This gives cause to doubt that those positive results can be translated into a reduction in the risk of reoffending. However, there are a number of features of the respondent's most recent participation in programmes that need to be taken into account. Firstly, his engagement in those programmes has not been for the purpose of obtaining parole and his expressed motivation has been for selfimprovement. Secondly, he has been notably frank and forthright in canvassing issues of sexually deviant thoughts. Thirdly, his reoffending in the past has incurred at increasingly longer periods after his release. This suggests that the risk of reoffending is not imminent upon release and that the respondent is capable of applying the lessons learnt from programmes to life in the community.

70 There is another important factor which has not been present in the past. The respondent has now voluntarily commenced medication to address intrusive sexual thoughts and his alcohol use. Both of the psychiatrists were of the view that the sexual intrusive thoughts were related to an obsessive compulsive disorder and therefore capable of being effectively treated with medication. That medication has the added benefit of reducing sexual libido. The respondent has also commenced taking Naltrexone which will likely have the effect of reducing any cravings for alcohol and of reducing any pleasurable effects if alcohol is taken. He has expressed a willingness to continue taking both medications in the community. He has been taking the SSRI medication now for some 11 weeks, sufficient for it to be effective. Whilst the efficacy of these medications is to some extent reliant upon selfreporting, the respondent has now been taking them for long enough for any benefits to have been achieved. These medications address two of the most significant risk factors for reoffending.

71 Both of the psychiatrists and Dr Cooney consider that the respondent considers to have unmet treatment needs in respect of his sexual deviant conduct as manifested in the second and third offences in particular. The existence of unmet treatment needs will not always act as an impediment to release, it will depend upon the nature of those treatment needs and the extent to which they will have the effect of reducing risk: Director of Public Prosecutions (WA) v Coffin [2014] WASC 305 [93]. The fact that the respondent disclosed his sexually deviant thoughts in the ISOTP when this was suggested by Dr Hall displays a notable increased selfawareness and willingness to engage in counselling in respect of this issue. The medications referred to above should be beneficial in reducing any risk arising from this unmet treatment need. However, continued counselling and support are also of importance.

The need to protect members of the community from that risk - s 7(3)(i)

72 The respondent's previous sexual offending was of a diverse but serious nature. The first and third offences involved violent sexual assaults. The psychiatrists consider that if the risk of future offending was realised the likely offence would involve offending whilst the respondent was drunk and be either upon a child or an adult female. There is a possibility that violence could be used in the event of resistance. It can be assumed that any offence of this nature would be likely to cause very considerable fear and psychological harm. There is clearly a need to protect members of the community from the risk of an offence of this type.

Any other relevant matter - s 7(3)(j) - Accommodation and related matters

73 As noted above, the proceedings were adjourned to enable the applicant to obtain further information regarding a proposed residence in a regional town. The respondent proposes to live with his adult son and his son's partner at accommodation in that town. Members of the respondent's extended family, including sisters and his elderly parents live in the surrounding area. Evidence in this regard is derived from an initial Community Supervision Assessment Report dated 17 August 2015 (exhibit A1, pages 227 242) an undated Assessment Report dated 29 September 2015 (exhibit A8), photographs of the proposed accommodation and the surrounding area (exhibits A9 and A11) and a further updated Assessment Report dated 9 October 2015 (exhibit A10). Oral evidence was also received from officers of the Department of Corrective Services on 9 October 2015 and 16 October 2015.

74 The proposed accommodation is in a complex of six detached units owned by the Western Australian Housing Authority. Information from the West Australian police indicated that there were parks and public spaces in the surrounding area that are used by groups of juveniles for antisocial type behaviour such as street drinking and illicit drug activity. There was also information that another unit in the complex was the current residential address of a convicted child sex offender and that another such offender lives on the same street. If released into the community the respondent would be served with notices not to consort with those other offenders. Information from the local police revealed that the town currently has 46 reportable offenders living in the community, requiring a significant police effort to manage them.

75 Almost the entire town site is within a radius of approximately two kilometres of the property. This radius includes several parks, sporting complexes and public spaces. There is also a primary school within 300 metres and a district high school within 500 metres of the proposed residence. Two early childhood centres are located approximately 200 metres away. There are several restaurants and licensed premises approximately 600 metres away and the town hospital is 200 metres away. Local police advised that alcohol abuse is a prevalent feature of the town, particularly amongst the indigenous population. There are restrictions in place which limit the purchase of alcohol to two cartons of beer per day per person.

76 The town police station is a 24 hour facility, however officers are regularly called to areas outside the town for extended periods. Accordingly, the ability of the police to monitor the respondent or respond to any alleged breach of conditions of release would be highly dependent on their workload. An immediate response to any breach of GPS conditions creating exclusion zones or limiting movement, could not be assured.

77 The Department of Child Protection and Family Support has a residential group home for children approximately 100 metres from the proposed residence. Children at the home are aged between 6 months and 16 years. The group home and its surrounding boundary could be made an exclusion zone which could be monitored through GPS tracking. Further evidence provided at the hearing on 16 October 2015 was to the effect that whilst children under 12 at the home were well supervised there are a number of young adolescents at the home who are sexualised, prone to substance abuse and vulnerable to being preyed upon by adults.

78 The respondent does not presently have secured employment. He plans to seek employment in an agricultural project. However should he fail to gain employment he intends to enrol in either an art or environmental related course at the town TAFE. Both his son and his son's partner are employed and absent from the unit during work hours from Monday to Friday. If not himself absent for work or education the respondent would be alone in the unit during these periods.

79 In regard to SSRI medication and naltrexone, the respondent would need to engage with a local general practitioner to receive ongoing prescriptions. He would also need to sign a consent to enable the Department of Corrective Services to liaise with the GP to confirm ongoing scripts and compliance. The Department was able to progress a referral for counselling to a community drug service team upon release on an order. Psychological intervention could also be arranged through the Department of Corrective Services and such counselling was likely to be fortnightly.

80 Global positioning system (GPS) tracking can be utilised in the town. This would allow the Department of Corrective Services to monitor the respondent's movements and identify all necessary exclusion and inclusion zones. As the respondent has been incarcerated for a number of years and is used to a highly structured lifestyle a nightly curfew was suggested as being appropriate to provide him with stability and structure when first released. The limitations of GPS tracking were noted, particularly that it cannot identify the people with whom he engages or determine what activities or actions he is involved in. It was also noted that there was limited coverage for tracking purposes outside the town area and accordingly a condition that would restrict the respondent's movement outside the town without prior permission was recommended (exhibit A1, pages 227 236).

81 A DCS team leader attended the proposed residence on 31 August 2015. The team leader reported that there were signs of primary school age children being present at other units in the complex. Children were observed playing on the common driveway between the units. Other members of the respondent's family, in addition to his son and his son's partner, were present during the visit by the team leader. All of those present indicated their knowledge that the respondent was currently serving a prison sentence for sexual offending. The team leader ensured that all of those present were aware of the details of the respondent's sexual offending history. The respondent's son's relationship with his father was explored and it was revealed that he met his father when he was 16 years of age. Following his parents' separation the son and his brothers were taken away by his mother and only allowed to contact their father when they were considered to be adults. The team leader queried how the son's partner was going to manage cultural protocols between the respondent and herself. She advised that the respondent would have his own room and she would not enter that room. She denied having any issue with this, but enquired about the length of time that they were expected to provide accommodation for the respondent. During discussions all the family members present identified alcohol as being a primary factor in the respondent's sexual offending. There was discussion between family members regarding the need to keep the respondent busy and away from alcohol and that people who intend to use or have been consuming alcohol should not be welcome at the residence. The respondent's sister stated that she would disclose inappropriate behaviour or actions on the part of the respondent to the authorities. The respondent's aged parents live together on traditional land which is situated marginally over the State border. They queried the possibility of the respondent residing at or at the very least visiting them on their land. The team leader advised that any visit could only occur after an accommodation assessment was conducted and would require prior permission. The respondent's parents agreed to this and said that they reside alone on the block in a caravan with no running water and that they use a generator for intermittent electricity. They attend an art centre twice a week and were both supportive of their son's release. They are elderly and finding life on the block physically challenging and would welcome any assistance that the respondent could give them.

82 The team leader concluded that the respondent's family have a clear understanding of his history and propensity for harm. She assessed the family as being a protective factor. However there were some concerns, including that he would be unsupervised by family between 8.00 am and 3.30 pm. There were also concerns about possible retaliation from the most recent victim's family. The respondent's son also noted the presence of children within the unit block.

83 Ms Jane Henshall, a Senior Community Corrections Officer gave evidence at the resumed hearing on 9 October 2015. She confirmed that it would be possible to create GPS exclusion zones in respect of the other units in the complex where children resided and in respect of any schools, day care centres or group homes. It may be possible to address concerns regarding children playing in the driveway immediately outside the unit by imposing a curfew for any period that the respondent was unsupervised at the premises that was outside school hours. Although a sporting ground is situated immediately opposite from the unit complex, it was apparent from photographs tendered at the hearing (exhibit A9) that this ground is surrounded by a fence and that there is no pedestrian access at that point.

84 There was extensive crossexamination of Ms Henshall regarding some of the conditions proposed by the Department if a supervision order was to be made. Some of these conditions included requiring the respondent to inform any friend (whether or not that friend has custody of children) full details of his past offending and whether the respondent would be permitted to leave the town or the State in any circumstances. While such conditions were based on a perceived need to address every conceivable risk it was apparent that the possible adverse impact of unduly onerous conditions had not been considered. The possibility that such conditions could result in the respondent being socially isolated and unable to visit his aged parents or his traditional land did not appear to have been given any weight even though this may hinder possible protective factors.

85 Because Ms Henshall had not herself visited the proposed residence, she was unable to answer a number of questions regarding the surrounding area or the purpose or need for some of the conditions. For this reason the applicant sought a further adjournment to obtain further evidence, including from the team leader based in the regional centre. That adjournment was not opposed by the respondent.

86 The proceedings resumed on 15 October 2015 and Ms Priscilla Tollec gave evidence by video link from the regional centre in question. She provided a further written report (exhibit A10). She reported that a further visit by officers of the Department of Corrective Services on 13 October 2015 had established that children or juveniles resided at at least four of the six units in the complex where the respondent's son lives. There was also three unsupervised children visiting at the proposed residence at the time of the visit. Perhaps even more significantly, the respondent's son is now the primary carer of his 15yearold niece who is living with him due to 'her antisocial behaviour with her parents' who reside in Halls Creek. She is to stay for an indeterminate period and attend high school in the town. This change serves to now make the proposed accommodation clearly unsuitable and there is no indication as to when, if at all, this position might change.

87 A home visit of the bush block where the respondent's parents live was also conducted. This confirmed that the block is marginally over the State border and has no dedicated telephone landline. There is no mobile telephone coverage in the area. This means that GPS tracking would not be possible to monitor the respondent if he resided at the block, nor could it monitor if he left the area. The respondent's parents were not present at the time, having travelled to Perth. Whether they are often away or for how long is not clear. Ms Tollec wore a GPS tracking device for the purpose of the visit and gave evidence that she was later told by the monitoring unit that her movements could not be monitored more than 10 kilometres out of the town, however when she returned to within that distance her movements to the bush block were downloaded. She was also able to feel alerts on the device for exclusions zones set beyond 10 kilometres. Ms Tollec was unable to closely inspect facilities at the bush block as noone was in residence and there were dogs in the area. She said that there were four caravans, only one of which she understood was usually occupied.

88 As regards other possible alternatives, the available evidence was that other family members' homes in the townships in the region were unsuitable due to the presence of children (even assuming the family members consented). The bush block where the respondent's parents live is without many of the problems regarding closeness to areas where children live or play. However, the block is not in an area where realtime GPS monitoring is possible. Accordingly, it would not be possible to be assured that he remained there, or only left with permission. If the monitoring device was removed, disabled or left uncharged whilst out of range this would not be known and could, therefore, compromise any ability to monitor him if he returned to town.

89 Ms Tollec further reported that both SSRI medication and naltrexone are available and can be dispensed by the local pharmacies. The town hospital can also dispense the medications outside pharmacy opening hours.

90 Ms Astrid Kalders, the Assistant Commissioner for Adult Community Corrections with DCS, gave evidence regarding the viability of the respondent residing with or visiting his parents on their bush block. She said that the Department does not have a policy in regard to interstate travel of persons who are subject to supervision orders, rather any application to travel would be considered on its merits. It would be a matter of concern that compliance with the order could not be monitored during such travel and that any breach could not be the subject of enforcement action unless the respondent voluntarily returned. Whilst Ms Kalders could not discount the possibility that the respondent might be granted permission to visit his parents, she said this would only be likely to occur in exceptional circumstances. This was due to GPS monitoring not being possible at the bush block. It was also not viable for the respondent to permanently reside there for the same reason.

91 Ms Kalders also gave evidence regarding accommodation options. Several years ago when lack of accommodation was seen as a problem an agreement was reached with the Department of Housing for six residences to be provided for use by offenders on supervision orders. The houses were not to be provided directly to DCS but to two nongovernmental organisations that provide rehabilitation services. Four houses were provided for this purpose and have been fully utilised since that time. However, the remaining two promised houses have not been provided. This has been raised continually by DCS with the Department of Housing, but the latter has declined to provide the houses or to provide any reason for not doing so. The impasse has been raised at senior levels, but not yet at a ministerial level. The four houses that are in use are in high demand and all are based in the metropolitan area.

92 Ms Kalders was pressed in crossexamination as to what plan the DCS had for the respondent. She said that the Department essentially intended to continue reviewing available options. She acknowledged the difficulty that a person in the respondent's position has in trying to arrange accommodation in a regional area whilst in prison. However, she said that finding suitable accommodation was the responsibility of the individual concerned.

93 Evidence was also led regarding the technical capacity of GPS monitoring devices in the regional area in question. Ms Tatiana Gvozhdenovic, the manager of the Public Protection Unit at DCS gave evidence that two types of unit are presently available, a track two device and a track one device. The track two device consists of an anklet and a hand held device through which messages and alerts can be transmitted. The track one device consists of an anklet only, which is more bulky than the track two anklet, which operates as both a transmitter and receiver. Both types of unit incorporate a GPS tracker which enables the device to locate itself and thus give warnings regarding approaches to any excluded zones. They also both incorporate a transmitter which relies upon the mobile telephone network to transmit information regarding the location of the offender to the monitoring unit. When the person is outside mobile telephone coverage the units can still determine location using GPS but cannot transmit any information in that regard until the person returns to an area of mobile coverage. Movements outside mobile coverage can be stored, though not indefinitely.

94 Some evidence was also called regarding two of the proposed conditions in the supervision order. A draft set of conditions had been sent by Ms Henshall to the WA Police Sex Offender Management Squad, which had requested two conditions (14 and 15) that would require the respondent to consent to the police searching his residence, vehicle or person at any time without the necessity for a warrant. As Detective Sergeant David Sayer acknowledged in his evidence, this was a 'massive' power to be given to the police. He suggested that it was justified because of the nature of the respondent's past offending and because that offending had been associated with alcohol use. He said that a power to search could be used to ensure that the respondent was not concealing alcohol. At the hearing I expressed concern that conditions like this may be disproportionate to the risk they are intended to address. In this case the respondent's use of naltrexone could be closely monitored and there were other suggested conditions prohibiting possession or use of alcohol and requiring the respondent to submit to a test at any time. Ultimately, it is not necessary to consider the appropriateness of all of the conditions, but it should not be assumed that they were accepted by the court.

95 The applicant submitted that the evidence established that there is an unacceptable risk that the respondent will commit a further serious sexual offence if not the subject of an order under the Act. However, it was accepted that the risk was capable of being appropriately managed in the community on a supervision order, subject to suitable accommodation in this State being available to the respondent.

96 The applicant submitted that the proposed accommodation with the respondent's son is unsuitable. This is due to the fact that a juvenile girl is now residing at the premises, and because it has been established that a significant number of children live in the adjacent units and play in the common driveway. There being no other suitable accommodation, the applicant submits that an indefinite detention order should be made.

97 The respondent submits that the nature of the risk of reoffending is not such that he should be found to be a serious danger to the public. The past offences have all involved victims known to the respondent, there have been no offences against strangers. The offending in the second and third instances did not occur for some time after release from prison and the psychiatrists accepted that any reoffending was not likely to occur imminently on release. The risk of reoffending is further reduced by the fact that the respondent wishes to live with his parents on their bush block and that he is taking medications to address sexual thoughts, libido and alcohol use. In these circumstances the risk of reoffending is said to be so small as not to justify any order under the Act. Any order, either detention or supervision, would involve consequences for the liberty of the respondent that far exceed the risk that he would reoffend.

98 The respondent concedes, however, that if the court reaches a different view, the unavailability of suitable accommodation is a critical factor in determining whether a supervision order is an option. Counsel for the respondent accepted that the proposed residence could not be maintained as being appropriate. It was, however, suggested that the executive had failed in a duty to find appropriate accommodation and that the court should, in effect, require it to do so by making a supervision order that the respondent be released to accommodation to be provided to him by the executive.

99 The respondent is a high risk of committing further serious sexual offences if he is not subject to a continuing detention order or a supervision order. I form this conclusion based upon his past offending history and the evidence of Dr Hall and Dr Febbo, which I accept. However there are indications that the risk of reoffending may have reduced given recent efforts to address risk factors including sexual deviant thinking and alcohol use. Those efforts have included further programmes and the use of medications. Nonetheless the risk remains, particularly given that the benefits of programmes have not proven to be long lasting in the past and that medications would only be effective if the respondent continued to take them (which could not be monitored or enforced in the absence of an order under the Act).

100 The submission that the risk is acceptable because it is not imminent and would be reduced further by the respondent living with his parents, cannot be accepted. The evidence does not give any firm basis for predicting when reoffending might occur. In the absence of a supervision order there could be no assurance as to where the respondent would reside or what activities he would engage in. The monitoring provided by the Community Protection (Offender Reporting) Act 2004 (WA) is of a different degree and would not, in this case, sufficiently address the risk of reoffending.

101 I am satisfied to a high degree of probability that there is an unacceptable risk that the respondent would commit a serious sexual offence if he was not subject to either a continuing detention order or a supervision order. Accordingly, I find that he is a serious danger to the community.

Continuing detention order or supervision order?

102 In deciding whether to make a continuing detention order or a supervision order the paramount consideration is the need to ensure adequate protection of the community: s 17(1) and s 17(2).

103 When considering whether a supervision order would adequately protect the community it is necessary to take into account any conditions which can be placed on a supervision order so as to ensure adequate protection of the community, the rehabilitation of the respondent and his care and treatment: s 18(2).

104 Conditions could be imposed that would restrict the respondent's place of residence, his movements and his use of alcohol. The use of medication to address sexual intrusive thoughts, reduce sexual libido and minimise cravings for and the effect of alcohol are significant in addressing the risk of reoffending. One of the critical factors in reducing risk is to ensure that the respondent's appreciation of risk factors and the ability to selfmanage them can be confidently relied upon. Whilst the respondent has some unmet treatment needs in respect of sexually deviant thinking, he has shown significant progress in this regard in his most recent ISOTP. This gives a basis for expecting that this treatment need could be effectively met by counselling in the community.

105 The proposed accommodation is no longer appropriate given that an adolescent girl now resides there. She is of a similar age to the most recent victim and the evidence appears to indicate that she may be vulnerable. This is unfortunate because there appears to be no other accommodation option available to the respondent. It must also be said that the proposed accommodation was, in any event, far from ideal given its proximity to homes where children live, schools, day care centres, public parks and other areas associated with risk. But for the lack of suitable accommodation the respondent's suitability for release on a supervision order would have been high. However, this is not a case where a supervision order could be made subject to suitable accommodation being found because all reasonable options appear to have been exhausted. Lack of suitable accommodation has, regrettably, been a recurring problem in cases like this: Director of Public Prosecutions (WA) v Alvisse [No 6] [2013] WASC 154; Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178 and Director of Public Prosecutions (WA) v Latimer [No 6] [2013] WASC 231.

106 As regards other possible alternatives, the available evidence was that other family members' homes in townships in the region were unsuitable due to the presence of children (even assuming the family members consented). The bush block where the respondent's parents live is without many of the problems regarding closeness to areas where children live or play. However, the block is not in a place where realtime GPS monitoring is possible. Accordingly, it is not possible to be sure that the respondent would remain there, or only left with permission. If the monitoring device was removed, disabled or left uncharged whilst out of range this would not be known and could, therefore, compromise any ability to monitor him if he returned to town.

107 The Act does not require that there be no risk of reoffending. Such a requirement could never be met and the effect would be that no person to whom the Act applies would ever be released. The requirement is that any risk be reduced to a reasonably acceptable level. This will always require a careful weighing of the nature and degree of risk in the context of methods for the management and reduction of that risk. Both of the psychiatrists accept that release of the respondent on a supervision order is a viable option. The only presently available accommodation is with the respondent's son in the regional town. No other accommodation is available in that town or in the metropolitan area. The respondent's extended family and traditional country are located in the regional area. He has previously been able to live and work productively in that area. These are protective factors that would not be present if he was released to a residence in Perth. Unfortunately, they are not sufficient to weigh against the fact that the accommodation proposed is not suitable for the reasons I have referred to.

108 I note that in these matters the Department of Corrective Services typically adopts the role of finding the problems with any proposal for release on supervision and is not focussed on finding possible solutions. It is always easy to find reasons for not releasing a person, what is more challenging is developing proposals for addressing and minimising the risk of reoffending in the community. Whilst I accept that these are adversarial proceedings, the resources of the Department mean it is well placed to assist the court in determining whether there is any viable option for release. A proactive approach to finding solutions for the accommodation problem would serve all interests, including that of the public, better than an approach which is only responsive to proposals made by the respondent. The resources of offenders, who have often been in prison for a long time, to make inquiries, obtain evidence and make a case for release on supervision, are usually limited at best.

109 In the circumstances of this case I conclude that the respondent is suitable for release into the community on a supervision order but only if that release can be to a place where appropriate conditions of release can be effective. No such place has been found and I have no reason to believe that any such place presently exists. The proposed residence is not such a place. Accordingly, I am not satisfied that the respondent can presently be released on conditions that would be effective in managing the risk that he would commit a further serious sexual offence if released, or in reducing that risk to an acceptable level.

110 Pursuant to s 17(1) of the Act I order that Kenneth James Griffiths be detained in custody for an indefinite term for control, care and treatment.