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[2008] WASC 37
Supreme Court of WA
2008-03-19
Blaxell J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- MOOLARVIE [2008] WASC 37
BETWEEN : DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Criminal law and procedure - Dangerous Sexual Offenders Act 2006 (WA) - Application for continuing detention order or supervision order - Whether the respondent is a serious danger to the community - Turns on own facts
Finding that respondent is a serious danger to the community
Order that the respondent be subject to supervisory conditions for a period of 5 years
1 BLAXELL J: This is an application by the Director of Public Prosecutions (WA) (the DPP) under the Dangerous Sexual Offenders Act 2006 (WA) (the Act) for a continuing detention or supervision order in respect of the respondent (Mr Moolarvie). The application was filed on 3 January 2007 at which time Mr Moolarvie was on parole and subject to a sentence of imprisonment for a serious sexual offence. That sentence expired on 13 January 2007, and since then Mr Moolarvie has remained in the community subject to an undertaking to this court to abide by particular supervisory conditions.
2 On 16 February 2007 I made preliminary orders pursuant to s 14 of the Act including a requirement that Mr Moolarvie undergo examinations by two court appointed psychiatrists (Dr Adam Brett and Dr Bryan Tanney). The psychiatrists subsequently provided reports of their examinations and also testified at the final hearing of the application. As Mr Moolarvie raised objections as to the admissibility of the psychiatrists' opinions, their reports and evidence were received provisionally.
3 Although the application seeks either a continuing detention order or a supervision order, the DPP does not in the end press for the former of these alternatives. In light of the evidence that has emerged at the final hearing, the DPP concedes that adequate protection will be provided to the public if Mr Moolarvie becomes subject to a supervision order with appropriate conditions.
4 It is unnecessary to review the full statutory framework as there are now numerous decisions, (including that of the Court of Appeal in Director of Public Prosecutions (WA) v Williams [2007] WASCA 206) where this has been done. For present purposes it is relevant to note that my power under s 17 of the Act to make a continuing detention or supervision order is dependent upon a finding that Mr Moolarvie is a 'serious danger to the community'. This term is stated by s 3 to have the meaning given in s 7 which provides:
(1) Before the court dealing with an application under this Act may find that a person is a serious danger to the community, the court has to be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence.
(2) The DPP has the onus of satisfying the court as described in subsection (1) and the court has to be satisfied -
(a) by acceptable and cogent evidence; and
(b) to a high degree of probability.
(3) In deciding whether to find that a person is a serious danger to the community, the court must have regard to -
(a) any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person;
(b) any other medical, psychiatric, psychological, or other assessment relating to the person;
(c) information indicating whether or not the person has a propensity to commit serious sexual offences in the future;
(d) whether or not there is any pattern of offending behaviour on the part of the person;
(e) any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation program;
(f) whether or not the person's participation in any rehabilitation program has had a positive effect on the person;
(g) the person's antecedents and criminal record;
(h) the risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence;
(i) the need to protect members of the community from that risk; and
(j) any other relevant matter.
5 The term 'serious sexual offence' has the same meaning as in the Evidence Act 1906 (WA), and encompasses offences of that description which carry a maximum penalty of 7 years' imprisonment or more. In Williams the Court of Appeal considered the meaning of the term 'unacceptable risk', and Wheeler JA (with whom Le Miere AJA agreed) held:
In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention. [63]
6 Its is important to note that under s 7(2) the DPP bears the onus of proving that Mr Moolarvie is a serious danger to the community, and must discharge that onus with 'acceptable and cogent evidence' and to 'a high degree of probability'. Although the present proceedings are taken to be criminal proceedings for all purposes (see s 40) the standard of proof under s 7(2) is less than the criminal standard. In this regard I respectfully agree with what Jenkins J said in The State of Western Australia v Woods [2007] WASC 320 [10] - [11], including her Honour's statement that:
The standard of proof to 'a high degree of probability' is higher than the civil standard, being proof on the balance of probabilities, but it falls short of the criminal standard, being proof beyond reasonable doubt. Nevertheless, it is a high standard, and in determining whether it has been met I take into account the grave importance of the issue for my determination, both to the respondent and to the community. [11]
7 Section 7(3) provides that I 'must have regard to' certain matters including any report that a psychiatrist prepares as required by s 37. This is a significant provision in the particular circumstances of the present matter given that Mr Moolarvie has objected to the tender of the two psychiatric reports. I deal with the question of the proper construction of s 7(3) below.
Mr Moolarvie's background and offending history
8 I have been provided with comprehensive information on Mr Moolarvie's antecedents and criminal history by way of reports, assessments, official transcripts and other documents which have been received into evidence pursuant to s 41(3) of the Act. The numbered references in the summary that follows are pages in the book of evidence which contains these materials.
9 Mr Moolarvie was born near Halls Creek to a 'very unsophisticated' tribal Aboriginal family (244). Although his recorded birth date of 1 July 1946 is not accurate it is considered to be a reasonable approximation (143). When Mr Moolarvie was 5 or 6 years old his mother died and his father then entered into a new relationship. Mr Moolarvie became one of seven children or step-children of his father's two relationships (8, 244).
10 Although Mr Moolarvie received a tribal upbringing he was never initiated into Aboriginal tribal ways (244). He attended school in Hooker Creek for less than a year, but then 'ran away' to Ord River Station. Even though he was just a young boy at the time he quickly learned to ride horses, and was employed spasmodically in mustering cattle. (9, 165). He is not literate but can converse reasonably efficiently in English (9).
11 It would seem that Mr Moolarvie was isolated from his family during his youth and saw little of them (244). In the station environment where he lived and worked he was regularly subjected to physical abuse including the use of a whip as well as the firing of 'gun shots at his feet' (132, 145). His earliest sexual experiences were at the age of 11 or 12 years, and one of these involved him and three other boys raping a young girl at the invitation of her father in order to 'break her in' (132, 146).
12 It was during his teenage years that Mr Moolarvie commenced to sniff glue and consume alcohol in heavy quantities (165). He also started to offend in a minor way, and first appeared in the Halls Creek Court of Petty Sessions on 17 November 1964 when he was convicted of being idle and disorderly. Despite the fact that he was then an 18-year-old first offender he was sentenced to 1 month's imprisonment.
13 Thereafter Mr Moolarvie regularly appeared in courts in Broome, Derby and Halls Creek to be convicted for offences of a minor nature, and by the age of 26 years he had experienced a total of 34 such appearances. On all but six of those occasions (when he received small fines) Mr Moolarvie was sentenced to terms of between 1 month's and 12 months' imprisonment.
14 From about 1973 Mr Moolarvie's pattern of offending started to escalate and he was convicted of more serious offences including breaking and entering and assault. His first charge of a serious sexual nature was in 1975 when he stood trial in the Supreme Court at Broome on charges of breaking and entering a convent in the night time and of rape. He was convicted of the first offence but acquitted of the rape. Nevertheless, the sentencing judge found that he had broken into the convent 'looking for a woman' and sentenced him to 3 years' imprisonment (17, 109, 115).
15 The earliest eligibility date for release under that sentence was 29 November 1976, but the Parole Board deferred parole (209). On 26 December 1976 Mr Moolarvie escaped from Broome Prison and committed an offence of stealing. He was then recaptured and on 17 January 1977 sentenced to 9 month's cumulative imprisonment for those offences.
16 As a result, Mr Moolarvie's earliest release date was extended to 30 August 1977, but the Parole Board once again refused parole. Ultimately he was released on 7 December 1978 following the expiration of three quarters of his sentence (210). That release was from Fremantle Prison notwithstanding that his home country was in the Kimberley area.
17 During the early hours of 19 December 1978 (just 12 days after his release from prison) Mr Moolarvie broke into a house in West Perth and violently raped the 92-year-old female occupant who was living on her own. Her screams caused a neighbour to call the police, and Mr Moolarvie only ceased his sexual assaults on the victim when they arrived (24, 210).
18 On 11 May 1979 Mr Moolarvie was convicted of those offences on his pleas of guilty, and was sentenced in the Supreme Court to terms of imprisonment totalling 7 years 7 months. The court also directed that at the expiration of that term he was to be indefinitely detained at the Governor's pleasure (33).
19 During early 1985 a clinical psychologist (Patricia Lowe) assessed Mr Moolarvie for the purpose of advising whether he was fit to be released on parole. In her reports to the Parole Board dated 14 February and 13 May 1985 Ms Lowe stated that 'sex is Mr Moolarvie's chief preoccupation, as he disarmingly admits' (35), and that there was 'no question in my mind that Mr Moolarvie would present a danger if at large in Kununurra or any other town, with access to alcohol' (37).
20 Notwithstanding this assessment, Mr Moolarvie was released to parole in the Kununurra area on 19 June 1985. Very soon afterwards he committed an offence of assault occasioning bodily harm when he had a drunken argument with his girlfriend and used a stick to break both her arms (102, 210). He was convicted of this offence in the Kununurra Court of Petty Sessions on 29 July 1985 and sentenced to 6 month's imprisonment.
21 At the expiration of that 6 month term, Mr Moolarvie remained in prison pursuant to the indefinite term which had been imposed on 11 May 1979. On 18 July 1986 he was convicted of a further offence of assault occasioning bodily harm after punching a fellow prisoner during an argument and breaking the latter's jaw.
22 On 7 July 1987 Mr Moolarvie was once again released to parole, but this time he was subject to conditions which required him to live at the Mulan Community near Balgo in the Kimberley Region. During the initial 15 month period following this release, Mr Moolarvie complied with his parole conditions and was not convicted of any further offences.
23 However, on 9 October 1988 he committed three very serious offences of aggravated sexual penetration without consent together with one offence of deprivation of liberty. The victim was a female medical practitioner living alone in a house in Kununurra. During the early hours of that morning Mr Moolarvie had gone walking around the streets of Kununurra carrying two steel bars and 'looking for a woman'. He saw a light in the complainant's house and entered through an unlocked front door. He confronted the complainant in the bathroom where she was preparing for bed and aggressively threatened her with the steel bars. He then repeatedly subjected her to numerous degrading sexual penetrations over a period of two hours (51, 114).
24 After pleading guilty in the Supreme Court to these offences Mr Moolarvie was remanded for various psychiatric and other assessments. He was sentenced on 31 May 1989 and the remarks by the sentencing judge included the following:
When you came before me at Kununurra ... I had before me a report from the Department of Correctional Services which reveals that you are a chronic alcoholic obsessed by sex, and if you were paroled it was said that public safety could not assured. I also had before me a psychiatric report which revealed that you have an aggressive psychopathic disorder, that you show no remorse and accept no responsibility for what you do when drunk and have no intention of changing your way(s). You are totally unsuited for any form of treatment.
Because of my concern about the consequences which might be implicit in those reports I gave instructions for fuller reports to be obtained and I now have a report from a consultant psychiatrist that you are a dangerous recidivist who shows no sense of remorse or responsibility for your activities whose crimes are all alcohol related and escalating in their seriousness in which gratification of your sexual impulses is paramount.
You show an unremitting pattern of antisocial and violent behaviour. I have a report from a clinical psychologist which reveals that your history of alcohol abuse is long and intensive. It is probable that you have brain dysfunction, that you would find it extremely difficult to abstain from alcohol and that if you drink excessively it is highly likely that you will reoffend sexually.
Currently society lacks any suitable agency for the supervision of your drinking behaviour. Another clinical psychologist reports that your inability to control your drinking or your sexual urges will pose a risk of further serious offences for the foreseeable future. His view is that any attempted solution requiring some commitment from you is unlikely to succeed. Neither psychotherapy nor imprisonment have been effective in changing you and you will only be safe while you are in prison.
The pre-sentence report examines the failure of previous periods of supervision in the community and says that there is no medical or psychological intervention which would provide adequate public safety and suggests that there is no realistic alternative to the indefinite detention to which you were sentenced in 1979.
...
Your previous conviction for the identical offence occurred in appalling circumstances involving a 92-year-old woman. You have a long criminal record and it includes offences of violence against women. You will be sentenced to a term of 10 years' imprisonment on the first count; 4 years' imprisonment on the second count; 10 years' imprisonment on the third count; 10 years' imprisonment on the fourth count and 10 years' imprisonment on the fifth count, all to be served concurrently.
Attempts over the years to rehabilitate you and to supervise you in the community have failed. The history of your periods of parole speaks for itself. This offence was committed while you were on parole. I do not consider that it is appropriate that you should be eligible for parole. Furthermore, your antecedents and character and mental condition and chronic alcoholism lead me to the view that there are exceptional circumstances in this case which indicate to me quite firmly that you have shown yourself so likely to commit further sexual offences, including aggravated sexual assault, that you constitute a constant danger to women in the community when you are at liberty.
I direct that upon the expiration of the terms of imprisonment now imposed upon you, you be detained during the Governor's pleasure in a prison.
Treatment outcomes within the prison system
25 In July 1996 (approximately seven years after Mr Moolarvie had commenced serving those sentences) he was transferred to Greenough Regional Prison to undergo counselling with the specialised Aboriginal Sex Offender Treatment Program. He went on to complete 26 three hour sessions, but the subsequent report on the outcome was in very negative terms. Although he had attended all sessions and contributed to the group process he was unable to accept total responsibility for his offending behaviour. He also lacked victim empathy and had failed to demonstrate a sound awareness of his offending cycle (121 - 122).
26 Mr Moolarvie participated in a second such program during late 1997 and once again attended 26 three hour sessions. This time he did 'gain some insights' into his behaviour and into the effect that his offences had had on the victims. However he still fell short of developing any victim empathy, and was assessed to be a continuing high risk to the community. Accordingly it was recommended that he participate in a third Aboriginal Sex Offender Treatment Program so that he could 'consolidate and build on the treatment gains achieved so far' (123 - 124).
27 Mr Moolarvie underwent the third sex offender treatment program between April and July 1998. The final treatment report included the following comments:
Mr Moolarvie acknowledges he is responsible for his offending behaviour and provided a sequence of events that lead up to the offences, including some thoughts and feelings. This enabled identification of his high risk areas which included being alone when drunk, the desire for sex, anger, and alcohol. Mr Moolarvie was unable to respond adequately to the challenge to address the issues underlying his deviant behaviours. These issues include Mr Moolarvie's lack of awareness and acceptance of physical, legal and personal 'boundaries', his objectification of women, anger management issues, his acceptance of violence as a valid behaviour, using alcohol to achieve easy sex, not recognising the validity of informed consent and his determination to pursue his own ends. Alcohol consumption only served to magnify the effects of these issues on his behaviour, though Mr Moolarvie believes it is the alcohol that is the primary issue.
...
If Mr Moolarvie is to be considered for release, his considerable treatment needs have to be addressed. One option is for Mr Moolarvie to participate in another Aboriginal SOTP, but as outlined previously, although some insights were achieved Mr Moolarvie has proven resistant to any substantial treatment gains within the group forum. It may be that one to one counselling could prove more effective in overcoming this resistance. Finally, further assessment by a Psychiatrist may be necessary to determine if use of anti-androgenic medication is warranted.
Mr Moolarvie continues to present a high risk of reoffending in a sexual manner, and violently so when angry and under the influence of alcohol. He is assessed as continuing to have considerable treatment needs (132 - 133).
28 The suggestion that Mr Moolarvie be considered for anti-androgenic therapy (viz: medication to reduce sex drive) was first raised by a clinical psychologist who had examined him in December 1997 (125 - 126). As a result of the above report the Parole Board decided to obtain a psychiatrist's opinion as to the feasibility of this therapy. The consultant psychiatrist Dr Patchett carried out this assessment but in his opinion there was no evidence of any treatable psychiatric disorder nor any requirement for medication whether anti-androgenic or otherwise. The senior forensic psychiatrist Dr Pullela (who reported on Dr Patchett's conclusions) nevertheless recommended that Mr Moolarvie be seen by the principal clinical psychologist Mr Les Harrison for an 'in-depth psychological and psychometric evaluation' (136). Subsequently Mr Harrison carried out a very thorough psychometric assessment which indicated that the risk of sexual reoffending by Mr Moolarvie 'had not significantly reduced' (150).
29 In December 2001 Mr Moolarvie underwent extensive neuropsychological testing by the clinical and forensic psychologist, Ms Leonie Coxon. Ms Coxon reported that his IQ scores were within the 'lowest 2.2% of the normal curve' and that his intellectual functioning skills fitted the criteria for mild mental retardation. It was Ms Coxon's opinion that:
Bearing these cognitive deficits in mind, it is not surprising that Mr Moolarvie has not responded particularly well to the sex offender programs offered in the past. Any further programs designed for him would need to be tailored to fit his particular cognitive difficulties and be administered on a one to one basis, to gain his full attention. A direct instruction model would be the most appropriate one to follow (170).
30 Notwithstanding Ms Coxon's recommendation, the clinical supervisor of offender programs (Ms Linda Maul) concluded that 'any further psychological intervention with this man would be futile' (171). Accordingly, Mr Moolarvie did not receive any one on one counselling during his remaining time in prison.
Mr Moolarvie's behaviour following his release from custody
31 Mr Moolarvie's final years in custody were spent at the Roebourne Prison where he was in regular contact with a senior community corrections officer with Aboriginal Community Development (Mr Marshall Smith). As a result, Mr Smith proposed a release plan which would require Mr Moolarvie to live at the Ngurrawaana Community approximately 100 km from Roebourne. This was a dry community where alcohol was banned and where the residents had maintained many of the traditional ways. The community members were aware of Mr Moolarvie's background but were nevertheless willing to accommodate him and to provide constant supervision for a limited period.
32 Between July 2002 and October 2004 Mr Moolarvie successfully participated in a carefully staged pre-release program during which he developed a relationship with the Ngurrawaana Community. Ultimately he was released to parole on 13 January 2005 subject to strict supervisory conditions which included the following:
33 The Ngurrawaana Community accepted responsibility for Mr Moolarvie on the understanding that he would abide by these strict regulations and would remain with them only until the expiration of his parole on 13 January 2007. However, as a result of the filing of the present application as well as Mr Moolarvie's undertaking to the court that he would continue to abide by supervisory conditions, the agreement with the community was extended until 30 June 2007.
34 Although Mr Moolarvie continued to be almost totally compliant with the conditions imposed upon him up until 30 June 2007, the Ngurrawaana Community was not prepared to extend his stay beyond that date. Accordingly, Community Justice Services made extensive inquiries throughout the Kimberly Region in an attempt to identify an alternative suitable placement for Mr Moolarvie.
35 These inquiries were not very fruitful and in the end the only viable placement option was at the community of Dillon Springs some 60 km south-west of Kununurra. This was a community of approximately 10 people which did not include any 'vulnerable females', and was normally dry (221). The chairman of the community (Mr Kenny Green) was Mr Moolarvie's nephew and was willing to provide him with limited supervision and support.
36 It was in these circumstances that Mr Moolarvie moved to the Dillon Springs Community on 17 August 2007 and has remained there subject to a varied undertaking. Although that undertaking contains supervisory conditions which are the same as before, the regime at Dillon Springs is not as stringent as it was at the Ngurrawaana Community. This is because of the very small size of the Dillon Springs Community and the fact that its chairman (Mr Green) is away for most of the time.
37 During the period since Mr Moolarvie's release from prison on 13 January 2005 he has not been charged with nor convicted of any offences. His compliance with the strict conditions of supervision at the Ngurrawaana Community was almost entirely satisfactory. In this regard there was only one adverse incident when he was given more freedom than usual on a shopping trip into town and purchased a bottle of alcohol which he drank after returning home. However he reported what he had done to the chairperson who arranged for him to be monitored until he was sober.
38 While Mr Moolarvie has been at Dillon Springs there have been three instances (on 27 August, 28 September and 20 November 2007) when he travelled into Kununurra without the approval of his Community Corrections Officer (as required by his undertaking). On one of these occasions (and on another occasion when in Kununurra with the supervising officer's approval) Mr Moolarvie consumed alcohol. However, on each occasion he travelled into Kununurra with Mr Green and/or other members of the community, and there were no significant problems with his behaviour while there. In this regard, according to the local manager of Community Justice Services (Mr F X Parriman) Mr Moolarvie has 'generally complied well' with the terms of his undertaking.
39 As required by the orders made at the preliminary hearing, Mr Moolarvie has undergone examinations by two psychiatrists, Dr Adam Brett and Dr Bryan Tanney. Pursuant to s 14 of the Act, those examinations were 'for the purposes of preparing the reports required by s 37 that are to be used on the hearing of the application'. Section 37(2) requires each report to indicate:
(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.
In making their assessments, the psychiatrists have also had regard to particular reports and other materials (as specified in s 38), which are essentially the same as those which have been tendered in evidence pursuant to s 42(4).
40 In complying with these statutory requirements, each psychiatrist has adopted a similar methodology in arriving at his assessment. In this regard, each assessment is derived from the psychiatrist's subjective clinical judgments (based on analysis of the prior materials as well as a face to face interview with Mr Moolarvie), combined with the use of certain instruments or 'tools' which are said to assist in arriving at a more objective prediction of risk. Doctors Brett and Tanney have used the same tools, namely the 'Static 99', the '3-Predictor model' and the 'Risk For Sexual Violence Protocol'.
41 The evidence before me shows that various instruments or tools have been developed over the past 10 years in response to concerns that subjective clinical assessments as to the risk of sexual reoffending might be unreliable. It is also clear from a number of published articles in reputable international journals (exhibits 1, 2, 3, and 6) that these tools are at an early stage of development and involve an area of behavioural science which is the subject of some controversy. For example, in a study published in the British Journal of Psychiatry in 2007 which evaluated the precision of actuarial risk assessment instruments the authors concluded that:
The margins of error for risk estimates made using the tests were substantial, even at the group level. At the individual level, the margins of error were so high as to render the test results virtually meaningless. (exhibit 2, page 63)
42 The 'Static 99' is one such actuarial risk assessment instrument. It relies upon the scoring of 10 static actuarial factors which are personal to a sexual offender (such as age, and particular characteristics of past offences) in order to arrive at a 'risk rating' for reoffending. A score of more than five out of a possible 12 results in a 'high' risk rating.
43 The literature shows that the 'Static 99' has only 'moderate predictive accuracy' at best. Its great shortcoming is that it does not take account of dynamic or changing factors which might increase or reduce the risk, and which would differentiate an individual offender from the group. A further drawback of the 'Static 99' (in the context of the present application) is that it purports to assess the risk of recidivism for sexual offending generally rather than for 'serious sexual offending' as defined by the Act.
44 Yet another problem with the 'Static 99' is that it was developed for use with Canadian and English offenders of European origin. The literature suggests that risk factors for indigenous violence may well differ from those for non-indigenous Australians and people of other cultures (exhibit 6, page 6). Furthermore, a local study by Allan, Dawson and Allan, Prediction of the Risk of Male Sexual Reoffending in Australia (March 2006) (exhibit 3, page 66), supports the contention that:
[R]isk assessment instruments developed in other countries and cultures should not be applied in Australia, and particularly with indigenous people, without proper investigation.
45 It was largely in response to such concerns that the '3-Predictor model' was developed by Allan and Dawson in 2002 as a means of predicting sexual reoffending by indigenous sexual offenders. It is based on three dynamic factors which are said to be predictive of recidivism namely:
46 During 2003 a further study at Edith Cowan University by Allan and Dawson explored 'the predictive accuracy of instruments developed internationally and locally as a function of ethnicity (Indigenous and non Indigenous) and nature of offending (non violent sexual and violent sexual)'. The conclusions that were reached included the following:
In the present study the 3-Predictor model was cross validated and was found to be accurate for both Indigenous and non Indigenous sexual offenders when culturally appropriate definitions were used. As established in previous studies conducted by Allan and Dawson (2002), predictive accuracy declined when the model was applied to violent sexual offenders. Further investigation tentatively revealed that the most accurate way of assessing risk with this specific group was to combine the 3-Predictor model score with the Static 99 score. This finding, while requiring more rigorous investigation was promising, as previous attempts to develop a model in WA had proved unsuccessful.
47 The third instrument used by Dr Brett and Dr Tanney was the 'Risk for Sexual Violence Protocol' (RSVP). This was developed in 2003 and is said to be a 'structured clinical assessment tool' (ts 87) which also has regard to actuarial factors (ts 67, 87). The RSVP assessment uses historical risk factors (of the type used in the 'Static 99') to 'lay the bed stone' and these are then overlaid with multiple dynamic factors determined by way of clinical judgment. This results in a 'cross-correlation' of all the relevant factors and is considered to be a more reliable assessment (ts 67 - 68).
48 To this end the RSVP requires 22 separate items to be scored as either 'yes', 'possible', or 'no'. However, this scoring system does not arrive at a numerical result based on particular patterns or risk factors. The purpose of the instrument is 'to elaborate a comprehensive risk management plan that addresses every item indicating risk' (250). Accordingly, (and as I understand the evidence), the RSVP does not in itself provide any assessment of the level of the risk of reoffending. Such an assessment remains a matter for clinical judgment, but is nevertheless aided by the focus placed by the RSVP on 22 separate risk factors.
The admissibility and weight of the psychiatric evidence
49 As already noted, the reports and evidence of Dr Brett and Dr Tanney have been received provisionally, and subject to my ruling on Mr Moolarvie's objection that the same are inadmissible. In this regard, Mr Moolarvie contends that the risk assessment by each psychiatrist does not comply with the ordinary principles governing the admissibility of expert opinion evidence, because it is based wholly or in part upon the 'Static-99', '3-Predictor model', and RSVP tools. It is submitted that these tools do not form part of any sufficiently recognised field of knowledge, and that the psychiatrists in any event lack the requisite expertise to offer the opinions as to risk that they do. Furthermore, and to the extent that the psychiatrists rely upon the results of such tools, it is contended that the underlying facts on which their opinions are based are not sufficiently proved.
42. Evidence in certain hearings
...
(2) Before the court makes a decision or order on the hearing of an application it must, if the evidence is admissible -
(a) hear evidence called by the DPP; and
(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.
51 In light of these provisions it is submitted that I can only have regard to a psychiatrist's report pursuant to s 7(3) if it is admissible in accordance with the ordinary rules of evidence. However, this submission begs the question of how the Act can achieve its purpose if either or both of the psychiatrists' reports are found to be inadmissible. A fundamental element of the statutory scheme as revealed by s 14(2), s 37, and s 7(3) is that the court should have the benefit of independent assessments by two psychiatrists on the final hearing of an application. Jenkins J referred to this aspect of the Act in Woods when her Honour stated:
[T]he Act s 37 requires a psychiatrist who is ordered to prepare a report to indicate his or her assessment of the level of risk that, if released without supervision, the respondent would commit a serious sexual offence. Section 7(3) states that the court must have regard to any report prepared under s 37.
From these provisions, I infer that the court is required to place some weight on the opinions of the psychiatrists even if they have not been qualified as experts in recidivism. It appears to me that Parliament has deemed that psychiatrists ordered to prepare reports under s 37 are qualified to give the opinions required of them. [74] - [75]
I respectfully agree with these observations but subject to the qualification that the obligation to 'have regard to' to the psychiatrists' opinions obviously cannot displace the requirement that there be cogent and acceptable evidence to support a finding under s 7(1).
52 These considerations aside, it is a well known rule of statutory construction that a general provision in an Act must give way to a specific provision dealing with the same subject matter (Pearce & Geddes, Statutory Interpretation Australia (6th ed) [718]). In my opinion, this rule offers the correct approach to the construction of s 7(2) and s 42, and it follows that the former should be read as if it is a proviso to the latter.
53 It also follows that the psychiatrists' reports are admissible and should be received into evidence so that I may 'have regard' to them in accordance with s 7(3). This of course does not mean that I will necessarily accept all or any of the contents of either report, because there remains the very live issue of the weight that should be given to each psychiatrist's opinions.
54 Similar questions as to the weight to be given to s 37 psychiatric assessments have arisen in three recent decisions by single judges of this court. The first of these decisions was Director of Public Prosecutions for Western Australia v Mangolamara [2007] WASC 71 [165] - [166] where Hasluck J held:
In the end, bearing in mind that the rules of evidence reflect a form of wisdom based on logic and experience, I am of the view, for the reasons I have referred to, that little weight should be given to those parts of the reports concerning the assessment tools. In my view, the evidence in question does not conform to long-established rules concerning expert evidence. The research data and methods underlying the assessment tools are assumed to be correct but this has not been established by the evidence. It has not been made clear to me whether the context for which the categories of assessment reflected in the relevant texts or manuals were devised is that of treatment and intervention or that of sentencing. Dr Pascu acknowledged under cross-examination that the assessment tools are directed not to the commission of serious sexual offences but to sexual re-offending of any kind (t/s 60). She acknowledged also that the database used for the mathematical model upon which Static-99 was based related to untreated English and Canadian sex offenders released back into the community on an unsupervised basis (t/s 68).
Moreover, having regard to the admissions made under cross-examination that the tools were not devised for and do not necessarily take account of the social circumstances of indigenous Australians in remote communities, I harbour grave reservations as to whether a person of the respondent's background can be easily fitted within the categories of appraisal presently allowed for by the assessment tools.
55 I pause at this point to note that the evidence in the present case indicates that the '3-Predictor model' was developed specifically for use with indigenous sexual offenders. Nevertheless that instrument has the shortcoming that it was designed to predict reoffending of a general sexual nature rather than violent sexual reoffending.
56 In Director of Public Prosecutions (WA) v GTR [2007] WASC 381 [111] - [112], McKechnie J came to a similar view to Hasluck J. His Honour held:
The qualifications and limitations on the use of predictive models in the evidence speak for themselves. These limitations are supported by the published literature to which I have referred. For reasons similar to those expressed in Mangolamara, I cannot attribute significant weight to the expert psychiatric opinions as to risk. I accept that the use of one or more predictive models, with or without a clinical interview and appraisal, may be helpful in determining a counselling regime or a management strategy for an offender. In such cases there has already been a determination of guilt and a sentence has been imposed. Little prediction is required by the sentencing judge. Within that context there is usefulness in the models to aid the offender's rehabilitation, to customise a course of treatment or therapy, and to plan for the offender's release to the community.
However, an application under the DSO Act requires more intense scrutiny. The respondent's liberty may be removed or curtailed because of a prediction which a judge is required to make as to future offending. For that reason, the DSO Act requires acceptable and cogent evidence to a high degree of probability. While opinions based on the present predictive models may be suitable for management purposes, they lack cogency for the purposes of the DSO Act that little weight can be attributed to the results of assessments that rely on them. Accepting the view expressed that clinical interview alone is a poor predictor, it remains the case in Western Australia that as yet the tools that are being developed to increase the accuracy of predictive outcome of dangerous sexual offenders have not developed to such a stage that the evidence can be described as 'acceptable and cogent'.
57 Accordingly Mangolamara and GTR are authority for the proposition that to the extent that s 37(2) psychiatric assessments are based upon current assessment tools they should be accorded little weight. However in the decision in Woods, Jenkins J has taken a different view. Dr Brett was one of the two court appointed psychiatrists in that case, and her Honour stated:
In respect to Dr Brett, he used the Static 99 testing instrument. For the reasons expressed by Hasluck J in Mangolamara I have decided to place little weight upon the results of this assessment tool. Dr Brett also used the three predictor model which examines three factors that a Western Australian study has suggested can be used to predict whether indigenous male sexual offenders would re-offend violently and sexually respectively. The three factors are unrealistic long term goals, unfeasible release plans and poor coping skills prior to release. Dr Brett considered each of these three factors. In my opinion, it is commonsense that these three factors will influence the risk of re-offending in a similar way to the way in which an offender has offended in the past. I do not consider that in order to place weight on Dr Brett's assessment of those three factors, it is necessary for the study or its research data to be tendered in evidence.
Dr Brett also used the Risk for Sexual Violence Protocol (RSVP). This, he said, was a set of structured professional guidelines comprising the evaluation of 22 individual risk factors. Dr Brett referred to each of those 22 risk factors and included in his report his assessment of their relevance to the respondent's risk of re-offending. Again, it seems to me, that commonsense dictates that these 22 factors are relevant to an assessment of the respondent's risk of committing a serious sexual offence in the future. I do not consider that in order to place weight upon Dr Brett's assessment of those 22 factors, it is necessary for the study to be in evidence. [81] - [82]
58 The second psychiatrist who provided a s 37 report in Woods (Dr Wynn Owen) utilised the 'Static-99' together with an assessment tool known as the 'PCL-R'. After expressing some caution about placing any weight on a risk assessment based on the 'PCL-R' Jenkins J went on to state:
I am of the view that there was a much broader basis for each of the psychiatrist's opinion than the results from those tests. I am satisfied that regardless of them Dr Brett and Dr Wynn Owen would have come to the same opinions concerning the respondent's risk of committing a serious sexual offence if unsupervised in the community. Thus, I have decided to give weight to their opinions. [85]
59 For my part, and based upon my understanding of the expert evidence in the present case, I have reached views about the assessment tools which are similar to those of Jenkins J in Woods. I agree that an expert opinion based upon the results of the 'Static-99' alone would have very little weight. However an opinion based upon those results combined with the clinical assessments required by the '3-Predictor model' may well have a sounder footing. The RSVP on the other hand is a relatively sophisticated instrument which is carefully structured and seems to address all conceivable risk factors that may be relevant to the assessment required by s 38. I also consider that the requirement for the RSVP to develop a comprehensive risk management plan must necessarily aid a clinical assessment of the overall risk. Accordingly, I have come to the view that a clinical assessment which is partially based upon the correct application of the RSVP will have added weight. Having made these general observations about the assessment tools I will now summarise the evidence from each of Doctors Brett and Tanney.
60 Dr Adam Brett is a forensic psychiatrist and the director of the Community Forensic Mental Health Service in Perth where he practices full time. He obtained his specialist qualifications in 1999 and since then has practiced solely in forensic mental health. His work has required frequent preparation of court reports as well as the giving of evidence, and in approximately 20% of cases this has involved indigenous people.
61 For the purpose of preparing his s 37 assessment in the present matter Dr Brett reviewed all of the materials provided (pursuant to s 38) and travelled to the Ngurrawaana Community to interview Mr Moolarvie. Dr Brett obtained information from the supervising community corrections officer, the community corrections regional manager, the chairperson of the Ngurrawaana Community and Mr Marshall Smith. He also utilised the assessment tools being the 'Static-99', the '3-Predictor model' and the RSVP.
62 Based on his clinical assessment and his review of the prior materials Dr Brett arrived at a diagnosis of alcohol dependence and abuse (in remission), a dis-social personality disorder, and cognitive impairment. It was also Dr Brett's opinion that Mr Moolarvie 'would score in the severely impaired range on his global assessment of functioning. He requires help with his shopping. He has poor budgeting skills and has few social outlets' (232).
63 Dr Brett then went on to apply the assessment tools and in doing so noted that:
The risk assessments used have not been validated in the indigenous population. A risk assessment process has been used which has been trialled in a Western Australian indigenous population (the 3-Predictor model). These tools make the most sense to be used and if all tools point towards the same answer they have increased weight.
64 The results of the 'Static-99' provided an initial score of five which was in the 'moderate to high' range, but Dr Brett later revised this to six (in the 'high' range) after a closer analysis of the background information (ts 52).
65 The '3-Predictor model' required Dr Brett to make a clinical assessment of the three dynamic factors of 'unrealistic long-term goals, unfeasible release plans and poor coping skills prior to release'. Using these factors as a tool, Dr Brett assessed Mr Moolarvie as being in the high risk category for reoffending (232).
66 Dr Brett then applied the Risk for Sexual Violence Protocol which required separate assessments of each of the following factors:
(6) extreme minimisation or denial of sexual violence;
(7) attitudes that support or condone sexual violence;
67 In his report Dr Brett (233 - 236) makes specific observations in respect of each of these factors, and under the heading of 'risk scenarios' provides the following overall summary:
If Mr Moolarvie were to re-offend he would most likely offend in a similar manner. This would most likely be a violent sexual offence. It is likely that the victim would be an adult female. The likely motivation for future offending would be to have his sexual needs met. If Mr Moolarvie were to offend in a similar manner the psychological harm would be severe to the victims. It is likely there would be physical harm to the victims. The likelihood of physical harm has probably reduced given Mr Moolarvie's age but as he has used weapons previously this is still a significant factor. Given his use of weapons previously there is a chance the sexual violence might escalate to serious or life threatening violence and this would increase with substance use.
The imminence of this likely risk scenario would depend completely on his ongoing risk management. The obvious warning signs would be intoxication and Mr Moolarvie's interaction with females. This is currently being managed extremely well in his current situation. If this risk scenario would eventuate it is likely that it would only occur on one occasion, as it would be likely that Mr Moolarvie would be caught for this offence. I believe that his risk is ongoing and chronic in nature.
The likelihood of Mr Moolarvie's reoffending again would relate completely to his risk management. He has previously done very badly on parole, however, he had done very well on his current plan and the local services should be applauded for their significant efforts in managing Mr Moolarvie's risk. If this type of management plan could be continued his risk would be significantly reduced. (236 - 237)
68 In concluding that Mr Moolarvie is 'at high risk of reoffending if not on a supervision order', Dr Brett's report states:
The evidence for the risk assessment is the STATIC 99, the RSVP and the 3-predictor model. The information primarily used to come to this assessment is the personal assessment of Mr Moolarvie, liaison with the local Community Justice Service and review of the collateral information. If the court places Mr Moolarvie on a Supervision Order I would recommend that the conditions considered could be:
69 Dr Brett was extensively cross-examined as to the methodology of his assessment and the appropriateness of his use of the assessment tools. In light of my general observations concerning the assessment tools, I consider that no evidence emerged during cross-examination which significantly impacts on Dr Brett's above opinions.
70 Dr Tanney holds scientific and medical qualifications dating from 1967. He graduated as a doctor of medicine in 1970 and obtained psychiatric qualifications in Canada in 1975. He went on to experience nine years in an academic environment as a Professor of psychiatry specialising in suicide and management of suicide risk. For the past seven years he has worked as a consultant forensic psychiatrist with the State Forensic Mental Health Service and has provided evaluations to the courts, to the Parole Board, and to the Mentally Impaired Accused Board.
71 The approach taken by Dr Tanney when assessing Mr Moolarvie is set out in the following introduction to his report:
The critical aspect of this report involves a determination of risk of recurrence of a serious sexual offence. The ability to predict unacceptable human behaviour with any accuracy and reliability has been the subject of considerable academic and clinical interest over the past several decades. In particular, the expertise of psychiatrists and other behavioural scientists in prediction of violence has been significantly questioned. In response, a brief of worthy research has been accumulating, largely directed towards the prediction of violence and including sexual violence. From this work, several processes for enabling risk prediction have been identified: unstructured clinical assessment, guided clinical risk appraisal, and actuarially derived, standardised instruments. Each of these processes has inherent procedural defects requiring consideration when applying and interpreting results and conclusions drawn by their application.
Not withstanding the above, the preparation of such reports should embrace the variety of procedures available. In the following, I report the results of actuarially derived risk ratings for Mr Moolarvie utilizing the Sexual Violence Risk - 20 (SVR - 20), its more recent counterpart the Risk for Sexual Violence Protocol (RSVP) 2003 and the Static - 99 measures. As indicated, I also conducted a highly-focused risk appraisal interview that was guided by my understanding of relevant and important constructs that have been identified in enabling prediction and management. The final opinion is derived from my integration of the data provided by these various informing processes. (242 - 243)
72 Dr Tanney's report then deals very comprehensively with his observations, results and findings in the course of performing the various aspects of his assessment. On the basis of the results from the assessment tools, Dr Tanney has expressed the following opinion:
Without ongoing intervention management, this man is at serious and considerable risk of further serious sexual offending, as estimated by available procedures and measures.
The results from three different measures are convergent. This affords a more powerful conclusion respecting elevated risk. (260)
73 Dr Tanney's overall assessment of Mr Moolarvie includes the following significant remarks:
It is my opinion that his offending behaviour resulted from an inability to defer his wants for personal gratification due to his personality disorder. If this is the source or origin of his 'lack of controls', there is no currently available restitutive biomedical or psychological treatment that would afford more 'controls' and so lessen the likelihood of re-offending. Presumably, abstinence from substance abuse would lessen the progression of brain damage to his frontal lobe functioning and additionally remove a disinhibiting influence that contributes to his 'lack of controls'. The importance of such abstinence cannot be ignored as he attributes his sexual offending to 'troubles with women, only when I'm drunk' and the presence of intoxication at all offendings is known. My mental status observations at interview and the neuropsychological testing support a current diagnosis of Organic Mental Syndrome-chronic-frontal lobe dysfunction. There is some basis for concern that over time this may further lessen his ability to 'control' his personal wants.
It is also my opinion that no improvement in personal and social functioning (both generally and specifically with respect to relapse prevention strategies for sexual re-offending or alcohol abstinence) based on expectation of internal psychological changes can be expected. Neuropsychological testing and treatment experience concur that Mr Moolarvie is not able to internalise 'new learning' in this area of social controls, allowing only Coxon's suggestion that a direct instruction model might have some value.
Controls must (be) imposed from without and must be of sufficient social authority that Moolarvie accepts these. This is an endeavour with little optimism as his problems with supervision have been described in legal history and in RSVP item 20. There is, however, some evidence of potential in the comments around his institutional behaviours. Mr Moolarvie has been cooperative to helping efforts thus far. He has participated in treatment programs as recommended. He has followed the phases of Early Release over several years at Roebourne, with only one period of delay due to non-adherence to the program requirements. He has successfully managed his current period of Parole within a tightly supervised community. Within an authority-derived institutional environment that imposes controls on his behaviour, he has functioned adequately. (264 - 265)
74 The conclusion to Dr Tanney's report contains the following summary:
1. This report has made effort to meet the purpose of section 37 of the DSO Act 2006, but the scientific underpinnings to satisfy the standard of predicting with high probability the likelihood of serious sexual re-offending by any offender are incomplete at this time.
2. Despite this, three instruments derived from an actuarial or guided clinical risk appraisal framework have been realized by myself, and additional comments provided over years by a number of human services professionals have been discovered. Their convergence directs an opinion that Mr Moolarvie is at High likelihood of serious sexual re-offending against adult women with accompanying violence within the next five years or sooner, should no further intervention take place. 'High' is taken to mean re-offending rates approximating 40% at five years. [This likelihood estimate informs, but does not constitute, a direct probability of personal re-offending nor does it address the ascertaining of 'unacceptable risk'.]
3. The absence of protective factors in his social, personal and care giving environment and the likely inability of Mr Moolarvie to develop such resources represents the strongest dynamic risk element of re-offending. The risk elements that are likely to exacerbate the likelihood of further serious sexual offending are substance abuse and a diminished ability to manage his own behaviours related to personality factors and organic mental disorder. Few of these dynamic risk elements seem capable of either any alteration or change in a direction that would diminish the likelihood of re-offending.
4. Any agency charged with implementing a Community Supervision order will be severely challenged to afford adequate management of unacceptable risk and to offer community-based rehabilitation services sufficient to lessen the likelihood of re-offending. Relapse prevention strategies and the development of social and personal protective competencies are not feasible, and likely not possible. Direct supervision with consistent and straightforward behavioural controls in a structured and simple environment as described above affords the case management approach most likely to minimize the considerable risk elements for dangerous and serious sexual re-offending. (268)
75 Dr Tanney underwent a very thorough cross-examination but in my opinion this did not reveal any flaws in his methodology or in the basis on which he had come to his assessment. On the contrary, I was impressed by the obvious efforts he had made to achieve objectivity in what he readily acknowledged was a largely subjective task.
Whether Mr Moolarvie is a serious danger to the community
76 Before I can find that Mr Moolarvie is a serious danger to the community I must be satisfied that there is an unacceptable risk that if not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence. The DPP has the onus of satisfying me of that fact, and must do so with acceptable and cogent evidence, and to a high degree of probability.
77 In deciding whether I am so satisfied, I am required to have regard to the factors set out in s 7(3) as well as the considerations that were referred to by the Court of Appeal in Williams. With this in mind, I now set out the salient facts which I find are conclusively established by the evidence.
78 Mr Moolarvie had a dysfunctional upbringing characterised by a lack of adult control, frequent acts of violence, early sexual experiences of a very damaging kind, and over-consumption of alcohol. It was because of this that he accumulated numerous convictions as a young adult resulting in frequent periods of imprisonment. From about his mid-20s there was an escalation in the seriousness of his offending with the consequence that he has spent most of his adult life in prison, is institutionalised, and has had very little experience of what might be regarded as a normal life in the community.
79 Mr Moolarvie's most significant convictions for present purposes all involved him breaking into premises late at night with the intention of 'looking for a woman'. The first of these offences was in 1975 when he broke into a convent and confronted a nun (whom he nevertheless did not harm). In 1978, within 12 days of being released from the imprisonment imposed for that and other offences, Mr Moolarvie broke into a house and committed a violent and prolonged rape on a 92-year-old woman. In 1988, while on parole for that offence, Mr Moolarvie committed yet another violent and prolonged rape on a vulnerable victim after entering a house in Kununurra.
80 On each occasion that Mr Moolarvie committed these very serious offences he was heavily intoxicated. When last sentenced in the Supreme Court in 1989 he was assessed as a chronic alcoholic with probable brain dysfunction, as being obsessed by sex, and subject to an aggressive psychopathic personality disorder. He showed no intention of changing his ways, was totally unsuitable for any form of treatment, and was completely lacking in remorse.
81 After Mr Moolarvie had served a further 7 years' imprisonment following that last conviction he participated in a series of three specialised Aboriginal sex offender treatment programs. These took place over a period of three years and each of them involved a total of 26 three hour group sessions.
82 Unfortunately, Mr Moolarvie's participation in those programs did not result in any significant change, because he lacked the capacity to address the issues underlying his deviant behaviour. He was assessed as continuing to present a high risk of re-offending in a sexual manner, and violently so when angry and under the influence of alcohol.
83 Mr Moolarvie's probable frontal lobe dysfunction and his cognitive deficits are a major reason for his failure to respond to treatment. In this regard I accept the neuropsychological and psychiatric assessments that he is not able to internalise 'new learning' in the area of social controls, and is severely impaired in his global functioning. These problems also help explain Mr Moolarvie's lack of ability to control his behaviour, particularly when drunk.
84 Notwithstanding these difficulties Mr Moolarvie has satisfactorily completed his most recent two year period on parole. He has demonstrated that he is capable of surviving in the community without reoffending, provided that he lives in an isolated setting where he is not permitted access to alcohol and is subject to reasonably close supervision. The fact that he is advancing in age may well be another factor which has contributed to this outcome.
85 The two psychiatrists who have reported to the court have provided similar assessments of the level of the risk that Mr Moolarvie will commit a serious sexual offence if not subject to a continuing detention order or supervision order. Dr Brett considers that there is a 'high risk of reoffending if not on a supervision order'. Dr Tanney's opinion is that 'Mr Moolarvie is at high likelihood of serious sexual reoffending against adult women with accompanying violence within the next five years or sooner, should no further intervention take place'.
86 Having carefully considered the reasons given by each psychiatrist for his assessment, I am satisfied that their opinions are soundly based. In this regard, each assessment is based primarily upon a clinical and not an actuarial foundation, and appears to have been reached in a structured, methodical and professional way. In my view, the use by each psychiatrist of the 'Static-99' tool does not detract from the reliability of his assessment. I also consider that each assessment is consistent with the inferences which inevitably arise from my primary factual findings. Accordingly I have no hesitation in accepting both assessments and giving them full weight.
87 I consider that the evidence I have relied upon in finding the above facts and in coming to the above conclusions is acceptable and cogent. It clearly proves the existence of a very strong risk that if Mr Moolarvie is not subject to continuing detention or control, he will reoffend by committing a serious sexual offence.
88 In my view, the risk of such reoffending is so unacceptable, that notwithstanding that Mr Moolarvie has already been punished for his past offences, it is necessary for the protection of the community that he be subject to further control. Accordingly, I am satisfied to a high degree of probability that he is a serious danger to the community.
89 For all of the above reasons there will an order pursuant to s 17(1)(b) of the Act that Mr Moolarvie be subject to supervision for a period of 5 years (as from the date of the order). I will determine the conditions of that supervision order after hearing further submissions from counsel.