8 Specifications for the reports are under DSO Act s 37(2), as follows:

(a) the psychiatrist's assessment of the level of risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence; and

(b) the reasons for the psychiatrist's assessment.

9 DSO Act, s 33, provides for what the court has to do on an annual review:

(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 -

(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

10 DSO Act, s 7, read with s 3(1), gives serious danger to the community the meaning set out in s 7:

(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 -

(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;

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

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

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

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

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

(h) the risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence;

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

11 In view of that legislative background, the remainder of my reasons proceeds as follows. First, I briefly review the evidence before me. Then I refer to the background and sexual offences of the respondent. Next I consider whether or not I must rescind the continuing detention order. I can immediately say that it was not contested for the respondent that he remained a serious danger to the community, and therefore the obligation to rescind did not arise. Given that I will find, as I will indicate, the respondent remains a serious danger to the community, I must then turn to make the choice provided for in s 33(2) of the DSO Act. The final section of these reasons is for my orders.

12 I should note that I consider my task under DSO Act, s 33, is to determine the matters referred to in that section, by reference principally to the evidence of material facts or circumstances, if any, arising since the making of the continuing detention order, that is, while the relevant offender was on detention under the order. I also believe that I should pay particular attention to any matter that, while not so arising, has become known since then.

13 However, I should indicate that it is not been suggested to me there are any facts or circumstances of the latter kind.

14 I have noted DSO Act s 42(2) (4) with respect to evidence in an application for an annual review under s 30, as follows:

(2) Before the court makes a decision or order on the hearing of an application it must, if the evidence is admissible -

(b) hear evidence given or called by the offender or person subject to the order, if that person elects to give or call evidence.

(3) Except as modified by subsection (4), ordinary rules of evidence apply to evidence given or called under subsection (2).

(4) In making its decision, the court may receive in evidence -

(a) any document relevant to a person's antecedents or criminal record;

(b) anything relevant contained in the official transcript of any proceeding against a person for a serious sexual offence, or contained in any medical, psychiatric, psychological or other report tendered in a proceeding of that kind.

15 As a result of the directions orders, I have a book of materials that was filed and tendered by consent as exhibit 1 which is entitled 'Book of material for the purpose of the first annual review of detention'. I call that 'the book of materials'. I have read the book of materials prior to the hearing. No part of it was objected to as inadmissible.

16 However, it is important, I note that the parties agreed that certain material in the book of materials, relating to the discovery of certain photographs in the cell in which the offender was a resident at Casuarina Prison was not before me as part of the evidence in these proceedings. I accordingly ignore both the direct and other evidence to do with that matter.

17 The DPP called, in addition, the authors of the psychiatric report, psychological report and the community supervision assessment report, which I reach shortly. Counsel for the respondent crossexamined each of them.

18 The respondent appeared at the hearing before me by video link. He was represented by counsel. However, the respondent did not elect to give or call any evidence. Thus, the only evidence before me was that in the book of materials and the testimony of the three authors referred to.

19 The book of materials includes, as I have already foreshadowed, a psychiatric report of Dr Mark Hall, dated 15 July 2013. I call it 'the psychiatric report'. Dr Hall, as I have indicated, is a consultant forensic psychiatrist.

20 There is the further document in the book of materials I have also referred to, entitled 'Dangerous Sex Offender Treatment Progress Report' of Dr D Galloghly, dated 8 July 2013. I call it 'the psychological report'. Dr Galloghly is a clinical and forensic psychologist in the team within the Department of Corrective Services, responsible for treatment of dangerous sexual offenders.

21 The third document in the book of materials, to which I have referred, is the community supervision assessment report. I will reach it shortly.

22 I do not need to review the respondent's background and sexual offences in any detail. McKechnie J provided a sufficient summary treatment for my purposes in DPP v Misko [3] [12].

23 There is also a treatment in Dr Hall's report, amplified slightly by his testimony, going, in particular, to the elements of violence in some, if not clearly all, of the sexual offending by the respondent. I refer in particular to the book of materials at pages 33 34, one of the very few places in his reasons where I will need, in my view, to make specific page references to it.

24 I turn then to the first question arising under s 33, namely, must I rescind the continuing detention order? I have already indicated what my answer to that is, but I should indicate what my reasons for arriving at that answer are. The answer, of course, depends on the answer to the question, whether I find that the person the subject of the order remains a serious danger to the community.

25 I follow, in doing that, the structure used by McKechnie J in DPP v Misko. His Honour, in turn, followed the structure set out in DSO Act s 7(3), using the lettering from that subsection.

26 The psychiatric report states that the respondent is considered by Dr Hall to remain at high risk of reoffending sexually without intervention. The psychiatric report sets out the reasons for that opinion. Those reasons are summarised in the psychiatric report, in terms which appear to be identical to those appearing in DPP v Misko as follows:

The essence of his risk relates to the nature and extent of his prior history of sexual offending, some of which occurred whilst under community supervision, his denial of offending and addressing treatment needs and lack of self-awareness. The latter particularly applies to factors contributing to his offending, his history of alcohol dependence and an appreciation of the challenges of remaining sober. He lacks a relapse prevention strategy and is as yet untested in the community [15].

27 On my reading of the psychiatric report, that summary is an accurate one of the investigations and their upshot conducted by Dr Hall, and is confirmed in his testimony.

28 I should indicate, however, that Dr Hall also emphasised a factor not appearing quite as clearly in the psychiatric report in the book of materials (exhibit 1) being the treatment needs of the respondent in relation to anger management issues, particularly by reference to the elements of violence in his offending that I previously referred to.

(b) any other medical, psychiatric, psychological or other assessments

29 There are two such other assessments in the book of materials. One is the psychological report and the other is the community supervision assessment report. I will deal with the community supervision assessment report a little later. My focus here is on the psychological report.

30 The psychological report, unlike the psychiatric report, contains no express opinion as to the respondent's risk of reoffending sexually. In his testimony, Dr Galloghly explained why that was the case. However, in my view, the psychological report refers in similar terms to matters which represent the reasons stated in the psychiatric report for its opinion as to risk.

31 In particular, the psychological report notes some acknowledgment of sexual offending, confirmed in his testimony by Dr Galloghly, although a limited one, because that acknowledgment was not consistently made and only appeared through some ability to acknowledge the possible effects of his offending on victims. However, that ability did not amount to an ability to articulate a significant understanding of those events.

32 The psychological report also, as confirmed by Dr Galloghly's testimony, refers to the respondent's apparent preparedness to participate in an intensive sexual offender training programme, but without any acknowledgment of its possible benefits to him, or other indication of his intention to participate meaningfully in it. It is a matter I will need to return to.

33 The psychological report further refers to the respondent's rudimentary understanding of his alcohol use issues and factors associated with release and the prevention of relapse, although with an ability, after probing, to articulate small but significant treatment gains in the area of alcohol use. Again, Dr Galloghly confirmed all of this in his testimony.

34 The psychological report also refers to some, but limited, selfawareness, at least to the extent of the inconsistency in the acknowledgment of his sexual offending, and the rudimentary understanding of his alcohol use issues referred to. Again, Dr Galloghly confirmed all of this in his testimony.

35 I am unable to see any indication in the evidence before me why I should come to view that matter other than in the way described by McKechnie J in DPP v Misko, that is, '[t]here is no specific indication of propensity' [18].

36 I understood counsel for the DPP to press on me that there was evidence of propensity. However, I rather consider that the evidence relied upon, or apparently relied upon by counsel for the DPP as one of pattern, which seems to me to be a different matter, and I reach it next.

37 Again, I am unable to see any indication on the evidence before me why I should come to a view that matters described by McKechnie J in DPP v Misko have changed. That is:

There is a pattern to offending in that the respondent targeted vulnerable women and has undertaken a degree of preparation for the offences. They are however essentially opportunistic

This is not a decisive criterion. Rather it indicates the cohort that might be targeted by the respondent in the future [19] [20].

(e)-(f) rehabilitation programme and its effects

38 I have already, in effect, summarised matters appearing in the psychiatric report, the psychological report and in the testimony of their respective authors, in respect of the effects of the rehabilitation programme that the respondent has followed.

39 That programme appears to be one of individual counselling with another psychologist, a Mr Bell, in the treatment team of the Department of Corrective Services.

40 For various reasons described in the two reports, the respondent has not undertaken an intensive sexual offender training programme of the kind that the authors of both reports clearly indicated was the optimal or preferable treatment programme. Dr Galloghly provided an account of the reasons for referring such a programme.

41 So far as participation in the individual counselling sessions is concerned, there appear to have been 12, or thereabouts, in which the respondent has participated, and in which the psychologist attempted to focus on specific treatment goals. However, it is clear from the reports that the focus on treatment goals was consistently impeded by a series of issues the respondent brought to the sessions.

42 It is apparent, from both the author of the psychiatric report, Dr Hall, and the author of the psychological report, Dr Galloghly, that some gains were made. The authors of both reports, however, rate those gains as, while appreciable or significant, low. That has significance for me, as I will explain.

43 There have been no changes in respect of this since DPP v Misko. That is, what appears there holds good now:

The respondent's antecedents are not good. His record of non-sexual offending is significant and future offending might demonstrate a loss of control and be a precursor to further sexual offending [23].

44 The only significant changes in the matters described by McKechnie J in DPP v Misko [24] [25], as it appears to me, are indications referred to in the psychological report of a moderate level of support from the respondent's parents and friends were he to be released from custody. And I return to those indications below.

45 There is confirmation of those matters in greater detail in a report titled 'Community Supervision Assessment', dated 19 July 2013, compiled by a senior community corrections officer, Ms Dabala, in the book of materials. I call this 'the community supervision assessment report'. Ms Dabala also gave evidence. Compare what I have just indicated with what appears in the last sentence of [25] of DPP v Misko.

46 For the rest of [24] [25] from DPP v Misko, I have been unable to see any indication in the evidence before me why I should come to a view that matters described by McKechnie J there do not hold good now. That is:

The respondent is now much older. Twenty years have passed since his first sexual offence. He is now middle aged. His weight has ballooned to 143 kg and he has significant health issues, including ischaemic heart disease and diabetes. He has limited mobility.

He has developed a great interest in art. He may have some family support on release though this is not clear [24] [25].

47 I should indicate in respect of the last that the matter is now clear. The extent of the support, however, is limited, as I will describe it below.

48 On the acceptable and cogent evidence that I have reviewed, I find, to a high degree of probability that the respondent remains a serious danger to the community.

49 That then takes me to s 33(2) of the DSO Act, and the choice I must make as indicated there.

50 I accept that, in general terms, I should favour the least restrictive option that is possible: see DPP v Misko [28]. However, in determining what is possible, the paramount consideration is the need to ensure the protection of the community, as s 33(3), makes absolutely clear.

51 I have noted the reasons why McKechnie J in DPP v Misko reached the conclusion described in [28], that the only order that would provide adequate protection to the community was a continuing detention order. The reasons for that conclusion are essentially described in [29] and [37].

52 I should begin by considering those reasons, and whether or not they continue to have validity. The reasons are three.

53 The first reason in DPP v Misko [29] was that the respondent did not know why he offended, or why he drank or had drunk. There is no indication in the evidence before me why I should come to a view that there has been a significant change in that respect, for my purposes, since the making of the continuing detention order. The matters I have described of acknowledgements of sexual offending not consistently made and rudimentary understanding of alcohol use issues do not, on my readings of the psychiatric report and of the psychological report, and my understanding of the testimony of their respective authors, indicate a significant change in respect of his lack of understanding of why he offended, and why he drank.

54 Undoubtedly there have been some changes in the offender's preparedness to acknowledge his offending, at least to some persons, although I must note, not to Mr Bell, his individual counselling psychologist. He also appears to have gained some appreciation of the context of his drinking which appears to be the early stages of an understanding of why he drank. I further accept, as I have already indicated, these changes date or come from individual counselling, and I further note, as I did earlier, that that individual counselling has recently become more intensive, changing from once every fortnight, to once every week.

55 Both the author of the psychiatric report, and the author of the psychological report, who addressed these matters, if in different terms, both in their reports and in their testimony, indicate, however, that these represent perhaps, putting it most strikingly, in the language used by Dr Galloghly, a 'glimmer of hope'; the beginning of a possible significant change, but not itself such a change.

56 The second and third reasons in DPP v Misko were that there was a 'lack of realistic plans for the future, or a viable relapse prevention strategy' [37].

57 As to realistic plans for the future, there are the indications in the community supervision assessment report of support for the respondent from family, his father and mother, that I have referred to. However, such support appears to be moral support, not the less valuable for that, but not financial or accommodation support.

58 There is also an indication in the community supervision assessment report, that the respondent has plans for accommodation through the service now being provided for dangerous sexual offenders, by a new set of arrangements being worked on by the Department of Community Services. However, there are also indications that achievement of those plans is not possible in the short term, to September 2013. It is not clear they will be achieved within a short time thereafter or in the longer term. Further it is not clear that the respondent will necessarily qualify for accommodation under them, although the programme does appear to be one particularly suited to his accommodation needs.

59 There is the possibility of disability funding from the Disability Services Commission (DSC), which, if granted, would provide the respondent with additional community support and the possibility of appropriate housing.

60 In her report and testimony, Ms Dabala elaborated most helpfully on the possibility of DSC funding and other proposals.

61 So far as I have been able to determine, on the basis of both the community supervision assessment report, and the testimony of Ms Dabala, the DSC is, at present, assessing the matter. However, the outcome will not be known until January 2014 when the application for funding must, if it is considered by this body, be determined by an independent panel. That is, it is most evidently the case that there will be no early resolution of the matter and that success cannot be guaranteed in the longer term.

62 There are also further indications in the community supervision assessment report, also elaborated upon most helpfully by Ms Dabala in her testimony, that the respondent has an offer of employment and accommodation with a friend at one or other of farming properties outside Merredin. The properties are owned by that friend, a friend from, it appears, the time the respondent and the friend were in prison together.

63 Mr McKenzie laid particular emphasis on this arrangement, I presume for two reasons. One was that it was a guarantee of accommodation, subject, however, to matters that the friend needed to discuss with the manager or managers of the property or properties concerned who had not yet been informed that the respondent might be taking up accommodation on the farm. I interpreted this as less than a complete guarantee that accommodation would be available, as was hoped. Also, and I assume this is the other reason for Mr McKenzie to lay emphasis on the farm arrangement, the arrangement related to employment in an environment removed from the environments in which the offender's sexual offending had occurred, being city environments of the kind described in Dr Hall's psychiatric report.

64 However, it seems to me that the offer appears clearly to be an inappropriate arrangement for a number of reasons.

65 First, the location is one at a considerable distance from the provision of face to face individual counselling by the psychologist that the respondent has been using to date from the Department of Corrective Services. Mr McKenzie quite properly indicated that there was the possibility of telephone counselling, and the testimony I had from Mr Galloghly indicated that the possibility of such counselling could not simply be eliminated.

66 However, Ms Dabala's testimony was rather less accommodating of telephone counselling. It does not seem to me, on all the evidence that I have, that the respondent would be an attractive candidate for what would be an exceptional form of individual counselling, in view of the considerations as to the relative lack of gains from treatment thus far that I have referred to, and the reasons why there were concerns about the respondent's suitability for treatment of that kind.

67 I should say in respect of the individual counselling, even on a weekly basis, that I am particularly drawn to what Dr Galloghly described as the much slower accumulation of such gains as individual counselling promised, from face to face arrangements. As I understood his testimony and that of Ms Dabala, even greater delays would be expected in respect of counselling by telephone.

68 Further, and in any event, there are the problems for the respondent represented by the considerable distance from medical and nursing care and, as well, the problems for supervision of him.

69 Now, of course, medical and nursing care might possibly be arranged in the forms that those in such regions are familiar with; but the significant health problems that the respondent has would appear to make him a particularly needy patient in those respects. The degree of interference with his treatment programme might, accordingly, be significant.

70 There is also the difficulty of supervision of the respondent, although Mr McKenzie again quite strongly emphasised the arrangements that might be made for him in that regard, being GPS technology. There was evidence before me about the lack of testing of the reliability of that technology on both of the farms concerned here. I leave such considerations to one side. Rather, I note that such technology, of course, operates at some distance over which those who might be responding to GPS technology might be required to travel in order to respond.

71 This matter, however, was not explored to any significant extent in the reports or the evidence. If it was simply a matter of supervision, then, it seems to me, that the evidence as to the GPS technology would not be a barrier. However, there are other matters I reach below, to do with supervision and elements of a supervised release programme, which give rise to real concern.

72 There are also indications of the possibility of employment of the respondent in Perth. Those possibilities are both through the friend referred to with the farms, a matter that was not explored in testimony, although is referred to in the community supervision assessment report, as well as with another friend who was apparently offering another form of work in Perth.

73 However, there was an apparent need for a driver's licence in respect of the employment in Perth by the person owning the farms. The respondent does not have a driver's licence. Apparently he has never acquired one, and would need to acquire one and complete the probationary arrangements under it before he could take full advantage of it.

74 Further, both forms of employment would appear to depend on having accommodation in Perth from the outset, which I took to underlie, at least in significant part, Mr McKenzie's emphasis on the farms.

75 I conclude from all of this that there are no realistic plans in respect of release, at least for the short term, by the respondent.

76 As to a viable relapse prevention strategy, I note from the community supervision assessment report the concern of its author that the respondent had not informed the persons, apparently his parents and one at least of his potential employers, with whom he intended to be closely involved in his release plans, of the serious and violent nature of his sexual offending, and, as to all of them, of the particular needs he would have as a dangerous sexual offender under a supervised release arrangement. Such persons, informed of those matters, and aware of warning signs, would be able to assist in identifying a possible elevation of offending risk, provided they had a willingness to disclose any concerns to the respondent's case management team. I assume that that was the matter to which counsel for the respondent, Mr McKenzie, was referring, in his reference to the need to provide some training or similar to the families on the farms that I have referred to.

77 This matter was referred to in the community supervision assessment report, as I have already indicated, as a concern of significance.

78 However, on my consideration of the evidence and the psychiatric report and the psychological report and the testimony of their respective authors, of greater concern is the paucity of gains with respect to the respondent's treatment needs.

79 The psychiatric report states that in view of that paucity it was the opinion of the author, Dr Hall, that it was unlikely the respondent's risk would be well managed using strategies other than participation in a group based sex offender treatment programme. As I understand it, a programme of the appropriate intensity for a high risk offender like the respondent was not available outside prison settings and was indeed not available in all such settings, including the respondent's present one. I should say in that respect that it appears there is such a programme available at the Karnet Prison facility.

80 I should further note that it apparently is a matter of which the Department of Corrective Services is prepared to take account that a judicial officer in a position like mine gives an indication of the desirability, if this is possible, for a person in the position of the respondent to be transferred to that facility, notwithstanding, in a case such as this, the respondent's security classification, and notwithstanding, as well, his medical conditions.

81 In that last respect, I note that his treating physician at Casuarina Prison, despite what might appear to be a contrary indication in the report from that physician in the book of materials, is prepared to support, on a trial basis or similar, the respondent being transferred to Karnet Prison, to permit him to undertake the intensive supervision programme. I also note that Mr Bell has supported such a transfer. I would add my endorsement of the appropriateness of such a transfer, at least on the trial basis that the treating physician has indicated.

82 I note that the psychological report does not have an indication altogether equivalent to that in the psychiatric report. However, the psychological report notes that the chronic nature of the respondent's past offending indicates the need for intensive treatment for both his alcohol use issues and his sex offending.

83 The psychological report also indicates that the respondent would benefit from continuing weekly counselling with his DSO psychologist, which I understood to be supplementary, at the least, or supplementary if possible, as well as engaging with an addiction agency. However, the psychological report adds that intensive treatment is difficult to implement through one to one counselling that can rarely exceed one hour of therapy per week. That is the more intensive arrangement that has now been arrived at.

84 The psychological report further adds that there are no intensive treatment programmes for sex offending available in the community, and the respondent would be unable to participate in an intensive alcohol and substance abuse treatment due to his offending history and risk issues. The testimony of Dr Galloghly appears to confirm all of this.

85 On those indications and that testimony, in the end I am unable to discern any significant difference between the psychological report and the psychiatric report in the present respect. Thus, I consider both the psychiatric report and the psychological report indicate that there is no viable relapse prevention strategy, in view of all of the other characteristics of the respondent that I have referred to. That is to say, both of them, while recognising that it is the case that intensive sexual offender treatment programmes, and intensive alcohol and substance use treatment programmes are optimal or preferable, have also indicated that they are of great significance so far as the respondent is concerned.

86 There are other matters, however, that I need to address.

87 Mr McKenzie, counsel for the respondent, stressed the evidence - although not so much in his closing - of the respondent's abstinence from the use of alcohol since entering into incarceration. I should note that on the evidence before me the respondent has been in prison since 1999, representing a significant period in that form of custody.

88 Mr McKenzie also referred to the health problems of the respondent as contributing to dissuading him from relapse, and as keeping him from places and associations, as well as situations, which might help otherwise trigger alcohol use and reoffending.

89 However, when these matters were put to Dr Hall they did not, it seems to me, elicit a response from him suggesting that he strongly supported such as a substantial risk minimisation.

90 I have already referred to Mr McKenzie's emphasis on individual counselling. However, altogether, apart from matters of availability of such counselling in an appropriate form outside the metropolitan area that I have already dealt with, the evidence of Dr Galloghly, in particular, was that, at best - as I have already indicated - such counselling would only provide benefits at a slow rate. At present, there is only a glimmer of hope for a proper management of risk from, as I understood his evidence, any treatment. Thus, whether by phone or otherwise, individual counselling does not seem, to me, to sufficiently reduce the risk that I must carefully attend to because of s 33(3) of the DSO Act.

91 I have further noted the testimony of the author of the community supervision assessment report, Ms Dabala, of the concern she has as to the ability of the respondent to cope with the strict and stringent obligations arising under supervision orders in the community which appear from the proposed supervision order conditions annexed to the community supervision assessment report, in the book of materials at pages 53 57.

92 I particularly noted, with a measure of concern, that the distrust the respondent had of police extended to his unwillingness to attend supervision reporting meetings with police otherwise than in the presence of his psychologist or another similar person, where at least Mr Bell would not likely be available for that purpose. More generally, it seemed to me, that Ms Dabala was focusing my attention on the respondent's ability to cope with requirements as stringent and as appropriately stringent, it seems to me, as those set out in the proposed supervision order conditions that I have referred to.

93 This, of course, is a matter that connects with the difficult history, if I may put it that way, of the respondent in relation to his individual counselling sessions which I have referred to, and in relation to which I note as well the indication from the community supervision assessment report, that the respondent had not told Ms Dabala the truth about failing to acknowledge his offending with Mr Bell.

94 In addition in this connection I note the history, although now of some considerable age, of offending by the respondent while under parole supervision.

95 Having reviewed all of these matters, it is my view that the only appropriate choice to make under s 33(2), in view of the paramount consideration of the need to ensure adequate protection of the community, is that I choose the first of the two options, namely, I expressly decline to rescind the continuing detention order.

96 I will now hear from the parties as to whether there are any other orders I need to make at this point.