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[2015] WASC 168
General information, not legal advice.
Supreme Court of WA
2015-05-14
Heenan J
Original judgment source is linked above.
1 EM HEENAN J: By application dated 13 March 2014 the Director of Public Prosecutions for Western Australia (DPP) has applied for an order under s 14 and s 17(1) of the Dangerous Sexual Offenders Act 2006 (WA) in relation to the respondent, Gavin John Wesley, pursuant to s 8 of that Act. This was the initiating application which has resulted in the matter being heard before me on 10, 11, 12 and 13 March 2015, as the substantive hearing. That it has taken almost exactly a year from the date of the initiating application until the matter came on for eventual final hearing is explained by the surprising number of interim applications and adjournments which occurred in the course of this somewhat unusual case.
2 At the time of the initiating application the respondent, Wesley, was still in prison, nearing the end of his service of total sentences of 17 years and 6 months' imprisonment for sexual offences against children and the possession of child exploitation material. The first of his sentences commenced on 27 September 2002 and the last of his sentences was due to expire on 27 May 2014. By then he would have served continuously a total of 11 years and 8 months' imprisonment.
3 As will be more fully described later, after the expiration of the last of those sentences and while these proceedings were still pending, Wesley was released from custody on the terms of a written undertaking approved by Jenkins J on 19 May 2014. He has since remained in the community subject to the terms of that undertaking, as amended since. There is no suggestion that he has ever breached the terms of that undertaking, nor that he has committed any offence since his release.
4 Wesley was convicted of several sexual offences against children, following two separate trials on indictment in the District Court of Western Australia. The first trial took place between 25 and 27 September 2002 before Nisbet DCJ and a jury. As a result, Wesley was convicted of nine counts of sexual abuse of children, being seven counts of indecent dealing, one count of procuring a child to do an indecent act, and one count of sexual penetration. The offences against the children were committed between 1999 and 2001. There were three child victims, all of whom were under 13 years of age at the time of the offences, two males aged 11 and seven years respectively and a female aged 10 years.
5 The second trial also took place before Nisbet DCJ and a jury from 1 to 3 October 2002, on a separate indictment. Wesley was convicted of five counts of indecent dealing with a child under 13 years, six counts of sexual penetration of a child under 13 years, and three counts of procuring a child to engage in sexual behaviour. All of the incidents occurred at the respondent's home. At the time the respondent was aged 33 years.
6 For the nine convictions resulting from the first trial on indictment Wesley was sentenced to separate terms for each offence ranging from 21/2 years' imprisonment to 7 years' imprisonment, all of which were to be served concurrently, with the consequence that the total period of imprisonment to be served for those convictions was 7 years.
7 For the 14 convictions arising from the second trial Wesley was again sentenced to separate terms for each of those offences, ranging from 3 years' imprisonment to 10 years' imprisonment. Those 14 sentences were ordered to be served concurrently with each other but cumulatively upon the concurrent sentences imposed in respect of the convictions resulting from the first trial.
8 The result was that the total aggregate term of imprisonment required to be served by Wesley was 17 years. He was declared to be eligible for parole on all of the sentences.
9 It was acknowledged at the present hearing before me that the period of 11 years and 8 months continuously which Wesley had served for these convictions, together with various remissions to which he was entitled, has meant that he has served the whole of the periods of imprisonment imposed by all those sentences. Although declared eligible for parole and making applications, Wesley was never granted parole.
10 Later, as a result of subsequent discovery of earlier offences, Wesley was charged on indictment dated 5 March 2002 with four counts of possession of child pornography. He was tried on those charges before Commissioner Reynolds and a jury sitting in the District Court of Western Australia in February 2003 and convicted. Those charges related to four stories which were located on the respondent's computer. They described sexual activities of children with each other and with adults.
11 Commissioner Reynolds sentenced Wesley to four terms of 6 months' imprisonment for each of those offences, each to be served concurrently but cumulatively upon the aggregate of 17 years' imprisonment previously imposed as a result of the earlier convictions. This meant that the total period of the sentences to be served became 171/2 years. Again, Wesley was declared eligible for parole.
12 When sentencing Wesley for these various offences both sentencing Judges remarked that he demonstrated a complete lack of remorse or empathy with the victims of the offences involving children and in relation to the possession of pornographic materials and denied that the material was pornographic or that there were any victims or harm resulting. Throughout the whole of his period of imprisonment Wesley has continued to deny his offending. For much of the earlier term of the sentences and at the trial he had sought to blame the children involved. More extensive details of the offences and the severe disapproval which the courts expressed about them at the time of sentencing can be found in the sentencing remarks of Nisbet DCJ on 15 November 2002 and of Reynolds C on 28 February 2003.
13 Wesley's offences against the three children which were the subject of the first two trials were committed in circumstances where he had been looking after the children, having befriended their parents or guardians. In relation to the two young boys aged 11 and seven, Wesley had befriended their mother, who was single at the time. He had also befriended the guardians of the other child, the seven-year-old girl, who were the child's uncle and aunt. All the adults had obviously trusted the respondent with their children. In relation to counts 11 to 14, at the second trial the sentencing Judge described Wesley's behaviour as the 'most depraved conduct of the lot' and 'one of the worst examples of crimes of this type' that his Honour had ever seen.
14 Wesley was considered unsuitable for inclusion in the specialist sex offender treatment programme because of his denial of the offending. Despite this, he acknowledged a willingness to engage in treatment and participated in a Sexual Offending Denier's Programme. He maintained his denial of the offences but his inclusion in that programme was recommended. Wesley participated in the Sexual Offending Denier's Programme from February 2011 to August 2011 and it was reported that he met the treatment goals by gaining greater awareness of inappropriate boundaries with children and more insight into his lack of intimacy and assertiveness in a relationship. He also made some gains in empathic understanding by acknowledging a lack of awareness and sensitivity for one of the children identified as a victim. On one of the scores he was placed in the high risk category.
15 Wesley was denied parole on 18 May 2012 and again on 20 June 2013. In the parole assessment report it was noted that his risk of reoffending remained unchanged from the previous assessment and that he had not addressed his offending behaviour and the issues which had led to it.
16 The respondent did not present a management problem while in custody.
Applications under the Dangerous Sexual Offenders Act
17 For reasons published on 9 April 2014, Director of Public Prosecutions (WA) v Wesley [2014] WASC 125, McKechnie J made orders after a preliminary hearing, to the effect that there were reasonable grounds for believing that the court might, under s 7(1), find that this offender is a serious danger to the community and hence fixed a date for the hearing of the s 17(1) application. His Honour ordered examinations by two psychiatrists and disclosure of their reports and other materials. McKechnie J ordered that the s 17(1) hearing should be heard on 14 and 15 May 2014.
18 At the time of the order by McKechnie J of 9 April 2014 there had been no clinical assessment or estimation of Wesley's potential danger to the public if released since an assessment conducted by a Mr D Summerton of 6 November 2002. At the hearing before McKechnie J the applicant placed considerable reliance on the fact that Wesley had been, and still was, a denier of his guilt. However, his Honour concluded that there was no evidence that a denier was any more or less potentially dangerous than a sex offender who acknowledges guilt and identified the need for evidence concerning any then present risk. His Honour remarked on the impressive support system available for the offender, describing it as the most comprehensive which he had seen for any respondent to such an application. In deciding to make the orders under s 14, McKechnie J concluded by observing at [51]:
Taking everything into consideration, including the proposed support system, I narrowly conclude that the DPP has established that there are reasonable grounds for belief that a court might make an order. The sole basis for that conclusion is the pattern and nature of offending over several years. The court might be satisfied to the standard required in s 7(2) that the respondent is a serious danger to the community.
19 As already noted, the DPP's initiating application of 14 March 2014 resulted in orders made by McKechnie J under s 14 on 9 April 2014 and these have already been described.
20 Wesley was then released from custody on 14 May 2014, upon entering into an undertaking approved by Jenkins J in oral unpublished reasons dated 15 May 2014 (folio 13). The terms of the undertaking were quite strict and demanding. While not identical, they resemble, in many respects, the terms and conditions often approved by this Court when directing that a dangerous sexual offender may be released on a supervision order under s 17(1)(b) and s 18 of the Act. The terms of that undertaking were later amended on 16 June 2014 and extended on 30 July and again on 10 October 2014.
21 The history of applications and orders in these current proceedings includes orders by Corboy J on 17 April 2014 for the Department of Corrective Services to provide an 'undertaking assessment report' upon the respondent as a prelude to the adjourned consideration of his application for release on undertaking later granted by Jenkins J; an order by Jenkins J on 15 May 2014 amending the nominations of the psychiatrists to prepare the reports previously ordered by McKechnie J, and then various adjournments of the ultimate hearing pending the reception and exchange of delayed psychiatric reports and other evidence.
22 The gravity and the repugnancy of the crimes committed by Wesley now more than 14 years ago and his continuing denial of his role in them has presented those authorities, psychiatrists and psychologists dealing with or reviewing his case and present circumstances with a very difficult task in assessing whether or not, while he was serving his sentence or, more importantly, now, he presents a serious danger to the community. The question is, whether he presents an unacceptable risk that if he were not subject to a continuing detention order or supervision order, he would commit a serious sexual offence now or in the foreseeable future.
23 As already noted, Wesley has not participated in the Sexual Offenders' Treatment Programme at any time while he was serving his sentences. This is because his continued denial of the offences rendered him an unsuitable candidate for participation in that programme. However, he has participated in the Sexual Offending Denier's Programme and, also as noted, the results have been regarded as positive and beneficial. Throughout his long period of imprisonment he has been a model prisoner and has conducted a number of work programmes and occupied trusted positions among offenders in prison.
24 His repeated applications for parole have all been refused largely, so the evidence reveals, because of the nature and gravity of his original offences and his continued denial. That reveals the issue, perhaps the most significant issue at this present hearing, of whether the historical record of offending more than 14 years ago plus continued denial shows a significant risk of reoffending notwithstanding the absence of any misconduct or apparent inclinations towards offending over his lengthy period of imprisonment and since. The evidence of his behaviour and conduct since his release on undertaking in May 2014, and the evidence of trustworthy people who have had close dealings with him over the past 12 months, all suggest that he is not a risk to the community of offending by the commission of sexual offences now or in the foreseeable future. Yet the doubts engendered by the seriousness of his crimes in the past loom large in the minds of the psychologists and psychiatrists who have reported on his case. However, there is little empirical evidence to support those anxieties, real and substantial though they naturally are.
25 A review of the evidence in detail will follow but it is significant to observe, at this point, that the submissions made on behalf of the DPP are that the respondent should be placed on a supervision order in the community rather than be subject to a continuing detention order. I am quite satisfied that this is the correct approach and it is consistent with all the psychiatric and psychological evidence which has been received. An important consequence is that the focus is shifted directly to the terms and conditions which should be included in the supervision order to be made and, in particular, to the degree of the restraints and obligations to be imposed upon the respondent by that order.
26 In undertaking this exercise it is necessary to identify the imperatives which the legislation imposes in these circumstances. In Director of Public Prosecutions for Western Australia v Williams [2012] WASCA 32 the Court of Appeal emphatically confirmed that the only powers available to the Court when making a supervision order under this legislation are those expressly conferred by the Act itself. Significantly, in that case, at [7], the Court of Appeal held that the term or period stated in the supervision order is separate and distinct from the conditions that must or may be imposed under the Act and is, therefore, not capable of amendment under s 20. The only relevant powers so expressly conferred on this Court are:
(i) to conduct a preliminary hearing at which it may order the person to undergo examination by two psychiatrists (s 14);
(ii) to make a continuing detention order or a supervision order (s 17). If a Court makes a supervision order, it must impose specified conditions and has a discretion to impose additional conditions (s 18);
(iii) to amend the conditions of the supervision order (s20);
(iv) if satisfied that the person who is subject to the supervision order is likely to contravene, is contravening, or has contravened, a condition in the supervision order, to amend the conditions of the supervision order, make any other order or make a continuing detention order (s 23); and
(v) to review a person's detention under a continuing detention order (s 33).
27 If on a review the court does not find that the person remains a serious danger to the community, it must rescind the continuing detention order. If it finds that the person remains a serious danger to the community, the court may expressly decline to rescind the continuing detention order or rescind that order and make a supervision order. By virtue of the definition of 'supervision order', the provisions of s 19 - s 24 of the Act apply to a supervision order made under s 33 of the Act.
28 In that case, McLure P went on to observe at [8]:
The effect of the express provisions of the Act is that if the term of the supervision order expires, the person subject to it is released from the operation of the Act. The legislative intention is that the supervision order should only expire if the person has complied or substantially complied with its conditions. Satisfactory compliance with the conditions is to be inferred from the absence of an application for, or making of, an order under s 23 of the Act.
29 In that case the Court of Appeal also found that the structure of the statutory scheme compels the conclusion that the express provisions relating to the court's power on matters the subject of conditions are intended to be exhaustive [11]. McLure P also said [10]:
More significantly the court's power to impose conditions is selfevidently not a power to add to or vary the nature of extent of the powers conferred on the court under the Act: Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 [50].
30 Several other important features of the legislation appear from earlier decisions in Director of Public Prosecutions for Western Australia v GTR [2008] WASCA 187; (2008) 38 WAR 307; The State of Western Australia v West [2013] WASC 14 (Corboy J); and Director of Public Prosecutions (WA) v Comeagain [No 5] [2014] WASC 214 [27] - [28].
The powers conferred by the DSO Act are not to be exercised for the purpose of imposing additional punishment on an offender but rather, for the ultimate purpose of protecting the community. The community will be protected by control continuing to be exercised over the offender; it may also be protected by the provision of care and treatment to the offender while in custody in the hope that the danger posed to the community or sections of it will be reduced. DPP v GTR [34].
...
The court should choose the order that is least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community: The State of Western Australia v Latimer [2006] WASC 235 and Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312 where Hall J observed:
'It cannot simply be assumed that the most assured preventative is detention and therefore, the protection of the community will always favour such an order.' [14]
31 These principles are also reflected in the observations of McKechnie J in his decision in the present case, [2014] WASC 125 [50] where his Honour said:
The DSO Act is not a tool to effectively extend parole in the community under a supervision order because the Prisoners' Review Board had refused parole. If the consequence is that a sex offender is released into the community without supervision, that consequence cannot be ameliorated by the use of the DSO Act, unless strict criteria are satisfied.
Requirements in Dangerous Sexual Offenders Act
32 The legislative framework and the applicable law have been described in many earlier decisions including Director of Public Prosecutions (WA) v O'Brien [2015] WASC 163. As Simmonds J set out in that case [23] the relevant principles relating to the proper construction and effect of the Act were set out by Corboy J in The State of Western Australia v West [2013] WASC 14 [52], which were noted with approval by Martin CJ in Director of Public Prosecutions (WA) v Yates [2014] WASC 136 [5]. They are as follows:
(a) Section 7(1) of the DSO Act provides that before the court may find that a person is a serious danger to the community, it must be satisfied that there is an unacceptable risk that, if the person was not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence. The expression 'serious sexual offence' has the meaning given to that term in s 106A of the Evidence Act 1906 (WA) (s 3 of the DSO Act).
(b) The DPP carries the onus of satisfying the court about that matter and the court must be satisfied by acceptable and cogent evidence and to a high degree of probability. The expression 'high degree of probability' is incapable of further definition. Clearly, it connotes a standard that is more than the civil standard but less than the criminal standard of proof: Director of Public Prosecutions for Western Australia v GTR [2008] WASCA 187; 38 WAR 307 [28] (Steytler P and Buss JA; and see at [34] for a further elaboration on what the expression means in its application).
(c) In deciding whether to find a person is a serious danger to the community the court must have regard to each of the matters specified in s 7(3) of the DSO Act.
(d) It will necessarily and automatically follow that a person is a serious danger to the community if the court is satisfied that there is an unacceptable risk that, if the person was not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence: DPP v GTR [21].
(e) The term 'unacceptable risk' is not defined in the DSO Act. However, a finding of fact that there is an unacceptable risk is an evaluative and predictive finding of fact involving a balancing exercise in which the court is required, on the one hand, to have regard to, among other things, the nature of the risk (the commission of a sexual offence with serious consequences for the victim) and the likelihood of the risk materialising and on the other hand, the serious consequences for the offender (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order) if an order is made: Italiano v The State of Western Australia [2009] WASCA 116 [4] and [46] (Buss JA).
(f) In a passage that expressly approved in DPP v GTR, Wheeler JA stated in Director of Public Prosecutions for Western Australia v Williams [2007] WASCA 206; 35 WAR 297 [63] - [64]:
'In my view, an "unacceptable risk" in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.'
(g) The powers conferred by the DSO Act are not to be exercised for the purpose of imposing additional punishment on an offender but rather, for the ultimate purpose of protecting the community. The community will be protected by control continuing to be exercised over the offender; it may also be protected by the provision of care and treatment to the offender while in custody in the hope that the danger posed to the community or sections of it will be reduced: DPP v GTR [97] (Murray AJA).
(h) The court must identify what, if anything, constitutes the risk and factor or factors makes that risk unacceptable and then consider whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence: DPP v GTR [34].
(i) The court must make a continuing detention order or a supervision order once it is found that the respondent is a serious danger to the community: Woods v Director of Public Prosecutions for Western Australia [2008] WASCA 188; 38 WAR 217. The paramount consideration in deciding between the orders is the protection of the community. That does not mean that there is a pre-disposition to making a continuing detention order. As Hall J observed in Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312, '[i]t cannot simply be assumed that the most assured preventative is detention and therefore, the protection of the community will always favour such an order' [14].
(j) The court should choose the order that is least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community: The State of Western Australia v Latimer [2006] WASC 235 and Decke [52].
33 At this hearing evidence was given by the two psychiatrists who had examined and reported on Wesley as a result of the directions made by McKechnie J. These were Dr S Febbo and Dr G Wojnarowska. Evidence for the respondent was adduced from Professor JRP Ogloff, the director of the Centre for Forensic Behavioural Science in Victoria. Professor Ogloff had not met or examined Wesley but he presented a detailed review of the literature relating to the assessment of sexual offenders and recidivism and commented upon the factors addressed by others as possible indicia of future sexual offending propensities by the respondent.
34 In addition, the applicant tendered, by consent, two volumes of materials containing records of the previous proceedings against Wesley leading to his convictions of the sexual offences, transcripts of the materials relating to child pornography found on the respondent's computer, records and reviews of his history while in prison and a proposed sex offender management plan. Evidence was also given by Ms Cassie McNally, a senior Community Corrections officer, who produced a series of community supervision assessment reports and an undertaking update report of May 2014 which became exhibit 5.
35 Evidence was also adduced from Mr M Clancy-Rowe, an executive manager of the Sexual Offenders Management Squad (SOMS), who described the resources and methods of the police for managing the register of sex offenders and complying with supervision orders in the community.
36 There was then evidence from two witnesses (whose names I have ordered should not be published) E and S, who were directly involved in the care and supervision of Wesley since his release in May of 2014 and who spoke positively of his compliance and behaviour since.
37 Among several submissions advanced by counsel for the respondent was that because Wesley is classified as a reportable offender he is subject to the provisions of the Community Protection (Offender Reporting) Act 2004 (WA) and that the application of that legislation and the obligations which it imposes are sufficient protection for the community without any, or any onerous, terms or conditions accompanying a supervision order - beyond those rendered mandatory by s 18(1) of the DSO Act.
38 It will be necessary to advert to the evidence of these witnesses in turn.
39 In his report of 7 July 2014 Dr Febbo set out the history of Wesley's offences, his previous psychiatric and medical histories and lengthy details of his earlier life. He made a psychiatric diagnosis of the likely presence of paedophilia, the presence of obsessional, antisocial, narcissistic and paranoid personality traits, a history of sexual abuse and the likelihood of significant stress related to release and relocation into a community setting. He gave a long account of the details of the commission of Wesley's previous offences, emphasising that they were the result of lengthy association with the families of the victims and a deliberate plan of grooming the victims rather than any spontaneous or sudden or impulsive behaviours.
40 Dr Febbo had conducted a series of risk assessment tests. The Static 99 score placed Wesley in the high risk category. On the PCL-R test he was at the bottom of the 21st percentile and his score was significantly below the cut-off traditionally used to diagnose psychopathy. When it came to risk scenarios, Dr Febbo was of the opinion that if Wesley were to reoffend in the future the likely scenario would be similar to his previous offending; that is, being preceded by the development of a friendship or relationship with an individual or family who cares for children and that, as the relationship developed and trust was bestowed between Wesley and any children, a time might come when unsupervised conduct would provide Wesley with an opportunity to offend and that, if he did so, the likely victim or victims would suffer significant psychological harm.
41 In his concluding opinion, Dr Febbo said that Wesley's static risk factors, particularly relating to the number and characteristics of his offences, put him at a high risk of reoffending and that likely offences would be against young, vulnerable children occurring after the development of a trusting relationship with the parental figures. Dr Febbo regarded Wesley's continual denial of his role in the offences, including the child pornography offences, as revealing limited insight in relation to the factors behind his offending. Dr Febbo also entertained doubts as to the reliability of the history given by Wesley of his own alleged sexual abuse. He was also concerned about the existence of significant personality pathology.
42 Dr Febbo concluded with the opinion that in Wesley's case a supervision order would be appropriate and should ensure that there was more limited contact with children. He advised that any supervision order should include the following requirements:
43 In cross-examination Dr Febbo stood by these opinions but elaborated upon the difficulty of making an assessment of future risks in this case because of Wesley's continued denial. This gave rise to concerns as to the extent of his personal deviance, particularly with regard to paedophilia and, in Dr Febbo's opinion, this gave rise to a need for caution. He emphasised that he was not able to assess the future risk of offending to the degree that he would like.
44 Dr Febbo had considerable respect for Professor Ogloff's substantial academic experience of sexual offending but pointed out Professor Ogloff's limited clinical experience. Dr Febbo emphasised that any future offending would probably be similar to that in the past and would not involve impulsive offending but would result from the development of trust with the family and the victims over time, involving a period of weeks or months, including ingratiating behaviour.
45 As to Wesley's convictions for the possession of child pornography, Dr Febbo acknowledged that those did not constitute 'serious sex offences' within the meaning of the legislation and that he had excluded them from his consideration and evaluation of future risk scenarios. Furthermore, in the course of his cross-examination Dr Febbo said that, in his opinion, the strongest indications of future recidivism were the combination of personal psychopathy and deviance but, in Wesley's case, there was no indication of psychopathy but that he did suspect a long-standing deviance in the nature of paedophilia, although it was difficult to make a positive assessment of that in Wesley's case.
46 Dr Wojnarowska produced two reports dated respectively 6 and 18 July 2014, upon which she elaborated in her oral evidence. Again, these contained a lengthy history of Wesley's background and development of his relationships with others, his past offending and his behaviour in prison. His mental state examination was considered to be unremarkable, with no evidence of psychotic phenomena. Dr Wojnarowska thought there was some evidence of truth distortion but the majority of the information provided to her by Wesley was consistent with information which she had obtained from independent sources. She remarked on his strong denial of sexual offending together with a lack of empathy and absence of remorse. He was cognitively intact and of normal IQ.
47 Dr Wojnarowska made a principal diagnosis of paedophilia and a secondary diagnosis of narcissistic avoidant and obsessional personality traits.
48 Dr Wojnarwoska then carried out a variety of risk assessment tests and, like Dr Febbo, found Wesley's score on the Static 99 test to be one which placed him in the high risk category. She observed that his total score placed him in the medium range of risk of future offending and although he did not reach the threshold for psychopathy he possessed some psychopathic features.
49 When addressing the potential for future offending Dr Wojnarowska identified the likely future victims as pre-pubescent children, motivated by a gratification of deviant sexual interest of children. She considered that the potential for future sexual violence was low because the methodology of Wesley was to select a victim and engage in lengthy grooming rather than by any different form of offending.
50 Dr Wojnarowska concluded by expressing the opinion that Wesley was at a high risk of committing serious sexual violence in the future if not subject to supervision in the community. The essence of the risk of reoffending was due to the presence of deviant sexual interest in children, paedophilia, and a long-established method of grooming and abuse. She reported that the level of Wesley's risk is moderated by close community supports and his desire to live a free life in the community without offending. Her opinion was that a supervision order under the DSO Act would be an appropriate measure for ensuring adequate protection in the community in relation to rehabilitation, care and treatment of Wesley. She recommended that conditions should be imposed on any such supervision order, including:
51 Dr Wojnarowska maintained those opinions when giving evidence and stressed that Wesley's pattern of offending had been very consistent over the years when he committed the offences. In her view, he was an intelligent man with no antisocial tendencies and was well aware of the consequences of any breach of the terms of his existing undertaking or conditions which might be imposed in a supervision order. She recommended that a supervision order should be for a period of five years.
52 Dr Wojnarowska was more emphatic than Dr Febbo in making an actual finding of paedophilia in Wesley's case.
53 I have already made reference to the evidence of Ms Cassie McNally, the senior Community Corrections officer, who had prepared the last community supervision assessment which became exhibit 5. Ms McNally's evidence was not in any way contested and was directed principally to a consideration of the adequacy of the residential, living and social activities of Wesley in the circumstances in which he is presently placed since his release in May 2014 and in which he hopes to be able to remain if a supervision order were to be made. Subject to the imposition of certain recommended conditions, including supervision of internet access, Ms McNally considered that the existing arrangements were suitable and that they provided an acceptable basis for Wesley to remain in the community subject to supervision.
54 Mr Clancy Rowe is the executive manager of the Sexual Offenders Management Squad. He gave evidence of the operations of the squad, the resources of the police, the method of monitoring offenders under supervision orders.
55 He was asked about the terms of the Community Protection (Offender Reporting) Act 2004 (WA) (CPOR Act) with a view to comparing those obligations with obligations under a typical supervision order. While there was some overlap in the nature of the obligations between a typical supervision order and the requirements of the CPOR Act, the latter dealt with a far greater number of persons with fewer powers available to the police and the absence of any electronic monitoring facilities of persons under notice.
56 It is enough to say that I am satisfied that the two pieces of legislation, while overlapping in effect to some degree, are directed to differing priorities and that no conclusion could be reached that the obligations under the CPOR Act are a sufficient or adequate substitute for terms and conditions which might be imposed under a typical supervision order, notwithstanding that there may be similarities.
57 The only expert witness giving evidence for the respondent was Professor J R P Ogloff, of Melbourne, who gave evidence by video-link and was examined and cross-examined. His extensive report of 6 March 2015 is exhibit 3.
58 Professor Ogloff is acknowledged as a leading expert in the field of study of sexual offending, but is a psychologist and not a psychiatrist. He has never met the respondent, nor conducted any clinical tests in relation to him.
59 His evidence was largely related to his comprehensive knowledge of the literature on this and related subjects and his review of the current leading empirical and psychological opinions about the nature of sex offenders and, in particular, the methods of evaluating the risks of future reoffending.
60 Professor Ogloff was of the opinion that Wesley's persistent denial of his offending was not a reliable indicator of the risk of future offending. He referred to a study to the effect that there was no reliable relationship between denial and recidivism by sexual offenders and that there was no study to show the existence of a positive relationship between those matters. However, there were studies which indicated that denial had been found to be a potential protective factor for reoffending.
61 In exhibit 3 par 33 Professor Ogloff observed that given the existing research and clinical knowledge regarding the treatment of sexual offenders in denial there was no foundation to discount or dismiss the positive effects of treatment such as completing a sexual offender's denial programme merely due to continuing ongoing denial. Professor Ogloff was also of the opinion that taking Wesley's total score on the Static 99 R test in the light of the latest information and his current age, the score should be lower, moving him down from the moderate high to low moderate risk of reoffending.
(a) the reliance placed by the other experts on Wesley's continuing denial of offending is not supported by the research which shows that denial is not reliably related to an increased risk of sexual offending;
(b) even though Wesley did not complete a Sex Offender's Treatment Programme because of denial, his successful completion of the Sex Offender Denier's Programme in 2011 is consistent with research which showed that deniers may benefit from treatment to the same extent as those who admit their offences and it is, therefore, not possible to conclude that Wesley's continual denial reveals a lack of benefit from the treatment which he did receive;
(c) the scores given to Wesley by Drs Febbo and Wojnarowska on the psychopathy check list do not place him in the high psychopathy group and their reliance on Factor 1 (interpersonal/affective) for their consideration of his level of risk is not supported by existing research. Professor Ogloff observed that because of Wesley's low score on Factor 2 considerations, no weight should be placed on PCLR scores which he received in respect of his risk of sexual reoffending;
(d) Wesley's score on the Static 99 test failed to take into account the reduction in risk of sexual offending occurring with advancing age and those experts did not use the Static 99R test which, had it been applied, would have placed Wesley in the low to moderate category of risk for future reoffending.
63 I consider that considerable attention and respect should be given to Professor Ogloff's opinions and comments but this needs to be done in the context that he is speaking of the broad population of sex offenders without having examined or interviewed the respondent. Both Dr Febbo and Dr Wojnarowska did place importance on Wesley's continued denial, and on the level of psychopathy which they identified. Whether their views and conclusions in these regards are entirely consistent with the latest research may be contestable, but the fact of the matter is that their clinical opinions following lengthy discussions with Wesley have caused them to be apprehensive about Wesley's future risk of reoffending. Among other things, each was of the opinion that Wesley had not been entirely frank in the extent of his disclosures nor in discussing his present attitudes. These impressions may be hard to support by objective evidence but they are the opinions of experienced specialists who have had the benefit of far closer association with the respondent than Professor Ogloff and I consider that it would be rash to disregard them.
64 In view of the expert evidence and the past history I, therefore, conclude that Gavin John Wesley is a person who is a serious danger to the community in that, if he was not subject to some form of control by an order under s 17 of the Act, he would be an unacceptable risk of committing a serious sexual offence in the future. The real question, therefore, is to consider what form of order under s 17 should be made and, if a supervision order, what terms and conditions should be contained within it.
65 During the course of the hearing I made a suppression order to the effect that the names of the two witnesses who gave evidence in support of the respondent and the details of their addresses should not be published or disclosed outside the court without leave by an order by a Judge. The reason for this was to protect those witnesses from unthinking and unjustified attention by members of the community and to avoid the situation where, if the respondent were subject to a supervision order, his address or pattern of behaviour could be readily identified and either he or these witnesses may be subject to adverse comment or attention by uninformed or over-zealous critics. For this reason, the reference to the two witnesses is by initial only, the first being witness E and the second being witness S.
66 Witness E is a civil officer within the employ of the WA Police Office with a long record of service and having previously attained a senior rank within the police service. He has been married for many years and has known the respondent for over 20 years through a friendship which developed from an interest in a common recreational hobby. Witness E is fully aware of the respondent's criminal convictions and had gone bail for him when he was first charged, being his surety for a period of 18 months before his eventual convictions, at that stage having daily contact with him. After the respondent was imprisoned this witness wrote off all contact with the respondent for about six months but then visited him in prison at weekly intervals, when possible, and was ready to assist in support of any parole plan which might have been approved.
67 At present, the respondent is living with the father of witness E, a gentleman who is aged 93 years, and quite frail. The witness's lives alone in a semi-rural area on the outskirts of the city. The respondent works at the home of the witness's father and is very attentive and helpful to this gentleman. He cooks, prepares meals, attends to repairs around the household and remains overnight in the house. He is able to provide very considerable support to the witness's father, which his daughterinlaw is unable to provide because of restrictions imposed by her current occupation.
68 This witness's brother is a computer expert and has installed internet connections which can be used by the respondent but under special arrangements by which all internet traffic in and out of the house is monitored by the brother and a log of sites used is regularly inspected. This system of control is achieved by a locked box on the site to which only the witness and his brother have keys. That arrangement is proposed to continue indefinitely.
69 The witness visits the respondent at the father's home every three or four days and keeps a check on him daily by phone. There is support network available for the respondent's social life but steps are taken to ensure that he does not meet or come in contact with children. This witness and his family are desirous of providing assistance for the difficult transition by the respondent from prison to life in the community and are motivated by a desire to achieve a successful transition to becoming a good member of society.
70 Inevitably, having regard to the witness's father's advanced age, there are doubts as to how long that arrangement can continue. However, witness E maintains that the respondent would be free to stay at the house until any decision about its eventual sale or other disposition is known and that there are numerous supports in the society, through a religious group and from himself, to supervise, protect and care for the conduct of the respondent.
71 I have no doubt or reservations about the credit or reliability of witness E and am entirely satisfied that he is fully aware of the respondent's history and nature of offending. Nevertheless, he and his brother's family have taken very realistic and prudent steps to supervise and safeguard the conduct of the respondent and to avoid any chance that he may come into contact with young children. Witness E and his family obviously trust and respect the role which the respondent has played in caring for their elderly father and attending to his needs and are anxious to preserve this. Such a role by the respondent is, I am satisfied, beneficial not only for the father but for the respondent and all concerned. It provides an opportunity for the respondent to undertake worthwhile and occupying activity in his daily and weekly routine. There are substantial precautions in place to monitor and control his behaviour. The fact that the respondent has performed satisfactorily in this role without breaches of the terms of the current undertaking since his release in May 2014 shows that the system has so far worked satisfactorily.
72 The second lay witness for the respondent is witness S, a gentleman of mature years and a public servant with the WA Police Force. He, himself, had a background as a police officer before he migrated to Australia. He has known the respondent for 27 years and shares a common interest in recreational hobbies and activities. Witness S is fully aware of the respondent's convictions and was a character witness for him at his trial. Throughout the respondent's imprisonment witness S visited him, usually once a fortnight. He is part of the support network for the respondent and is a companion with whom the respondent can discuss issues or problems.
73 It was S who arranged for the respondent's current employment. His observations of the respondent since his release are that Wesley is showing good signs of reintegrating into normal society, that his employment arrangements are fine, and that he had done remarkably well, all things considered, although his opportunities and conduct are severely hampered by the conditions which are part of the current undertaking.
74 According to witness S, the respondent interacts well with other adults but steps are taken to ensure that he does not meet children. Because of this witness's employment within the Police Service, he is subject to regular requirements by his superiors to report on his contact with the respondent and to report on any adverse matters. He considers that his own role is to assist in helping to protect the public and to help the respondent and he and his partner are willing and able to keep a check on him at all times.
75 I am satisfied that witness S is also entirely reliable and fully informed of the respondent's background and alert to the need to protect the community from risks. The role which he and his partner have in observing the respondent and assisting in his integration and rehabilitation is commendable and positive.
76 In deciding whether to find that a person is a 'serious danger to the community' the Court must have regard to the several factors recited in s 7(3) of the Act. As to these, my observations and conclusions are:
(a) Psychiatric reports (s 7(3)(a), (b), (h) and (j). Both the psychiatrists appointed pursuant to s 47 consider that the respondent is at a risk of committing serious sexual offences if not subject to a supervision order (exhibit 1B, Book of Materials vols 1 and 2, pages 583 and 560 in the reports which each prepared) and that some moderation of the risk in the course of their oral evidence;
(b) Propensity to commit serious sexual offences in the future (s 7(3)(c)). Again, both psychiatrists agree that, in view of the number and nature of the respondent's past offences, he should be considered to have a propensity to commit serious sexual offences in the future.
These opinions were contested in the course of the crossexamination and by the submissions for the respondent in reliance upon the evidence of Professor Ogloff who, as already related, considered that undue emphasis had been placed on the significance of Wesley's history of denial and that his risk of reoffending should be regarded as reduced in view of his successful completion of the Sexual Offenders Denial Programme, his advancing age and because undue emphasis had been placed on the identification of characteristics of psychopathy of a nature which Professor Ogloff did not consider were predictive of future offending.
I am satisfied that this is a case in which there is very little upon which to base a judgment as to the risk of future sexual offending by the respondent except for the history of the offences themselves now more than 14 years ago. The offences arising from his convictions for possession of child pornography are not offences for a serious sexual offence within the meaning of this legislation, although I consider they should be regarded as an indication of a then current sexual interest or inclination. Against this must be weighed the long period which Wesley has spent in prison, his successful completion of the programme already described, and his entirely satisfactory conduct since his release on an undertaking in May of 2014. Nevertheless, the disquiet arising from his original offending lingers and the opinions of the psychiatrist as to his risk are not diminished by the inquiry or the cross-examination undertaken at this hearing.
(c) Pattern of offending behaviour (s 7(3)(d)). It became common ground that there was an obvious pattern in Wesley's past offending. His offences involved victims who were pre-pubescent children to whom he had lengthy access and whom he was able to groom from his position of trust. The development of these relationships had taken a considerable time and had arisen from his association with the parents or guardians of the children who had been led to have misplaced confidence in him. The offences involved sexual conduct with the individual children but also involved procuring some children to engage in various sexual acts with other children. There was no suggestion of random, aggressive or violent behaviour, nor of stalking or opportunistic attacks on children with whom he had had no prior acquaintance. Each of the psychiatrists was of the opinion that, if Wesley were to reoffend in the future, the pattern of reoffending would follow that in the past and that there was little or no danger of random offences being committed on unknown victims or children who might be met in any public place.
(d) Rehabilitation (s 7(3)(e) and (f). As already recorded, Wesley successfully completed the Sex Offender Denier's Programme in 2011 and the report on his participation was positive. At the completion of that programme one of the recommendations was that he should not be alone and unmonitored with children in the community. However, the psychiatrists are of the opinion that that course did not address his underlying sexual deviancy and his tendency towards paedophilia.
As already remarked, the respondent's performance on his undertaking in the community since May of 2014 has been without any incident or breaches of conditions imposed by that undertaking. This is an encouraging indication that he is likely to observe the conditions of any supervision order if imposed.
However, contrary to the contentions of the respondent by his counsel, the psychiatrists remain of the opinion that this history of compliance with the terms of the undertaking is not a sufficient cause to avoid the imposition of any supervision order. They consider that a supervision order with terms would constitute an effective means of managing and monitoring Wesley within the community. The opinion of Dr Wojnarowska was that the supervision order should be for a period of five years. No different period was suggested in evidence or submissions.
(e) Antecedents and criminal record (s 7(3)(g)). The criminal history of the respondent has already been extensively described. It is that which gives rise to the concern about the risk of his reoffending and it is certainly not possible to conclude that his offending was, at the time, uncharacteristic or a departure from his normal pattern of behaviour.
(f) Extent of risk and consequent need to protect members of the community (s 7(3)(h) and (i)). These matters have been canvassed in the review of the evidence of the psychiatrist. I am satisfied that there is an inescapable level of risk which arises from the nature of the offending. The long period which Wesley has since spent in prison means that there has been no opportunity to gauge whether or not, if free to do so, he would be likely to repeat any of that deviant behaviour and commit further offences. Only a supervised trial in the community would be likely to provide a basis for any satisfactory conclusions in this regard. The period of one year which he has already spent in the community subject to this undertaking is a good start but caution and the need to protect the community indicate that a longer trial is needed. I am satisfied that a five-year period, as suggested by Dr Wojnarwoska is appropriate.
(g) Any other relevant matter (s 7(3)(j)). The respondent through his counsel relies on the satisfactory performance of Wesley over the past 12 months while subject to the undertaking and the close supervision of him by witnesses E and S and the regime which they have established as indicating that there is no present risk nor need for a supervision order having regard to the balance which needs to be struck between community protection and the least invasive restraint upon the person's liberty required by the legislation. It was also submitted for the respondent that his classification as a reportable offender subject to the provisions of the CPOR Act constitutes a sufficient protection for the community.
However, while I am impressed by the regime which has been established by the respondent's supporters and I have respect and confidence in the supervision and responsibility of witnesses E and S, I do not consider that that is sufficient to dispense with the need for a supervision order. Similarly, while I recognise that the provisions of the CPOR Act do entail a degree of supervision and monitoring of the respondent, it is not of the same intensity nor does it involve the resources of similarly qualified personnel, as the requirements for supervision under supervision orders made under s 18 of the DSO Act involving scrutiny and monitoring by Community Corrections officers. The principal differences in the two regimes have already been described and importantly include the much greater degree of monitoring and directive powers which Community Corrections officers have under this present legislation.
77 In the course of evidence the applicant tendered a draft supervision order (exhibit 4) containing terms and conditions typical of orders made in like circumstances and which the applicant submitted would be appropriate in this present case. As the evidence proceeded and the psychiatrists and the authors of the community supervision assessment reports were examined and cross-examined, it emerged that not all of the terms or conditions of exhibit 4, at least in their original format, would be necessary or appropriate in Wesley's case, particularly having regard to the pattern of his behaviour in the past and the acknowledged probability of the form that any future offending would likely take, if it were to occur.
78 These differences were canvassed extensively in the evidence and in submissions from counsel. I consider that it is sufficient if I address only those which remain in controversy and indicate those upon which it is acknowledged that some moderation in the terms of the conditions originally proposed should be made. The result is as follows.
79 There is no controversy but that the standard conditions required by s 18 must be included.
80 As a result of the evidence given at the hearing, the applicant now proposes, and I accept, that the following variations of the additional conditions first proposed can and should be made. A set of the conditions incorporating the alterations which I consider are justified forms the annexure to these reasons.
81 Originally, the applicant proposed that the respondent should take up residence at the designated address and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer (CCO) assigned to him. It was accepted that, on the evidence, there was no need for any nightly curfew and that it would be reasonable for the respondent to stay overnight elsewhere if he chose to do so or if circumstances rendered that desirable. The controversy was whether or not advance approval from the CCO should be sought and obtained before any such change in overnight residence. I am satisfied that it is desirable that the CCO should be aware of any place at which the respondent is staying or intending to stay so that the condition proposed requiring advance approval by a CCO for any change in overnight residence should be a condition of the supervision order.
82 As originally proposed, the applicant sought a condition that the respondent should advise his CCO and seek prior approval to engage in any voluntary or paid employment or any change of employment. Again counsel for the respondent submitted that there was no need to impose any restriction on any proposed change of employment by the respondent nor any need to impose upon him the burden of making application to the CCO and seeking approval for any such change. However, counsel for the applicant submitted that it was necessary and desirable for a condition as proposed to be imposed so that the CCO had an opportunity to check the proposed employer to ensure that there was no connection to children arising from the proposed change of employment. Once more, I consider this to be a reasonable and necessary precaution and the term as sought by the applicant should be imposed.
83 The applicant sought the imposition of conditions requiring the respondent to consult and engage with any psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO, and for the respondent to comply with the requirements of all programmes designed to address his offending behaviour and/or risk of serious sexual reoffending - again as directed by a CCO.
84 The respondent objected to the imposition of such conditions on the basis that there was no need for Wesley to undergo any further psychiatric or psychological assessment, and that he did not have any existing condition for which treatment was needed, and that he had already successfully completed the Sexual Offenders Denier's Programme and no other programme for him was contemplated or recommended. However, Dr Wojnarowska advised that future psychological counselling should occur. Dr Febbo thought this desirable but that it need not be 'mandated'. Professor Ogloff saw benefit from such treatment.
85 As this is a matter within the discretion of the CCO and is but a small extension of the obligations already necessary under s 18(1)(d) of the Act, I am satisfied that those two terms as sought should be imposed. However, the applicant accepts that there need be no term requiring consultation or engagement with a 'mentor' so, to that extent, the original term proposed can be amended.
86 The applicant sought the imposition of conditions requiring the respondent, if so requested, to permit police officers to enter and search his residence for the purpose of monitoring his compliance with his obligations under the order and to advise police upon request of all the names of all his internet service providers, all mobile or landline services used by him, and all internet user names or identities used by him. Dr Wojnarowska believes such conditions were necessary and that the detection of child pornography should be attempted. Dr Febbo was of a similar opinion.
87 Objection was made to these proposed conditions on behalf of the respondent on the basis that they were unduly onerous; that an unrestricted right of search and entry by police was a heavy imposition upon the liberty of any person; and that the obligation to disclose all details of internet use could be very burdensome. For the applicant it was submitted that it was important to enable the police to monitor any recourse which the respondent might have to pornographic internet sites or similar sites and that entry to premises was desirable to ensure that proper supervision of him would be possible.
88 I accept that an unrestricted right of access including the right of search by police is an intrusion on the liberty of an individual but I accept that, for the duration of a supervision order, close vigilance should be possible of the respondent's internet use. Indeed, under the voluntary arrangements presently put in place by the witness S and his family, the respondent is already subject, in practice, to such supervision of his internet use. I consider that that is desirable and that conditions as sought should be imposed. Conditions 29 - 31 - Curfew
89 Originally, the applicant sought the imposition of conditions that the respondent be subject to a curfew pursuant to s 19B of the DSO Act, that during the curfew he should present himself for inspection at the front door whenever demanded by the police, and that all persons present at the residence where he was staying were aware of the requirements of the curfew and willing to assist in their performance.
90 Neither Dr Febbo nor Dr Wojnarowska thought a curfew is necessary. The CCO will have the ability to monitor Wesley's performance by GPS tracking technology and another condition is proposed for him to record his movements in his diary. The applicant therefore considers that from a management viewpoint that is sufficient and, accordingly, the proposed conditions for curfew are unnecessary.
91 The applicant sought the imposition of a condition requiring the respondent to maintain a daily diary of his movements, activity and associations if and as directed by a CCO and to present the diary to a CCO or police officers upon request. The need for this was opposed by counsel for the respondent on the basis that it was unduly onerous and that it was a subject upon which there would be endless scope for differences as to the nature and extent of the detail required, giving rise to a risk that the respondent could be regarded as being in breach of the condition and, therefore, subject to revocation of the supervision order for some minor inadequacy or omission from the diary content.
92 Nevertheless, in view of the desirability of tracking the movements of the respondent and as a means of cross-checking with GPS monitoring, I am satisfied that the imposition of such an obligation is appropriate. The content of the diary will be such as is directed by a CCO and, therefore, should there be any suggestion by the police of non-compliance or inadequate compliance with the obligation to keep the diary, the first point of reference and scrutiny is likely to be the CCO. Clearly, the court or any other authority called upon to adjudicate upon whether or not there was a breach of this condition, in marginal circumstances, would need to take a reasonable and practical view of the obligation in the light of any alleged breach. Unless any such breach was grave, and suggested fraudulent or deceptive conduct, or was occurring persistently, any supervising authority could be expected to take a balanced view of the situation.
Condition 37 - Disclosure of relationships or associations
93 As originally proposed, the applicant sought the imposition of a term requiring the respondent to report immediately to a CCO the formation of a relationship or association with a person who has children under the age of 16 years in their care, either full-time or part-time. The respondent objected to the imposition of such a condition on the basis that it was exceptionally broad in using the words 'relationship or association'.
94 The purpose of the proposed condition is to prevent the respondent developing contact with persons who have in their care children under the age of 16 years without that being reported to the CCO. That being the case, the intended scope is more limited than the wording originally suggests. As a result, the applicant accepts that the existing description of 'relationship or association' should be deleted and replaced by the words 'ongoing sexual or domestic relationship of friendship' which is the wording in the current undertaking. I am satisfied that such an amended form of conditions should be imposed.
95 As originally proposed, the applicant sought the imposition of a condition requiring the respondent to provide details of the formation of a relationship or association of any kind both to his CCO and to the police on the next occasion when he reported to that person or agency. The respondent objected to this term, again on the basis that the words 'relationship or association' were unduly broad and that, in any event, the obligation was onerous and a discouragement to the formation of common forms of social interaction.
96 However, I am satisfied that the need for a suitably worded condition in this regard is necessary because, as Dr Wojnarowska explained, the establishment of such a relationship can be the first step in grooming future victims and that has been very much a part of the offender's methodology when committing the offences for which he has been convicted. As to the breadth of the proposed term, that can be addressed by deleting the existing description of 'relationship or association' and, as with condition 37, substituting for those words 'ongoing sexual or domestic relationship of friendship' which appears to be working well in the existing undertaking.
Condition 39 - Disclosure of past offending to any new relationship
97 The applicant has sought the imposition of a condition requiring the respondent to make full disclosure of his past offending and of any current supervision order to anyone with whom he commences a relationship of any kind, including an employer in circumstances which can be confirmed by the CCO and police officer.
98 This was opposed on the basis that it was a very severe embarrassment and impediment to the formation of any form of social or employment relationship and, as such, a handicap to social integration and rehabilitation. Each of the psychiatrists agreed that it was unduly onerous and could jeopardise future chances of employment.
99 Accordingly, the applicant proposed as a substitute the words 'the CCO shall have the discretion to require you to make full disclosure of your past offending and the current orders to anyone with whom you commence a relationship of any kind including an employer, which disclosure can be confirmed by the CCO and police officer'.
100 This will leave the discretion in the hands of the CCO, who will be able to balance the desirability of securing an employment or other relationship against any risks involved and to refrain from imposing such a requirement unless the particular circumstances were thought to make that necessary. Again, I consider that the amendment as propounded by the applicant should be made and on that basis the condition imposed.
Condition 41 - No association with persons who have committed a sexual offence
101 The applicant sought the imposition of a condition that the respondent must not associate with any person known by him to have committed a sexual offence unless such association is authorised in advance by the CCO. However, the respondent is already subject to such a restriction under the provisions of the CPOR Act and, for that reason, this particular condition is superfluous. I agree that it is unnecessary and can be deleted.
102 The condition originally proposed by the applicant required extensive supervision in advance by a person approved by a CCO to any access to a computer or other device capable of internet access. Dr Febbo regarded it as necessary and desirable that there be some form of checking process to see whether or not there had been any resort to child pornography sites or any attempt to communicate with children by internet.
103 This was opposed on the grounds that it was impracticable having regard to the many different devices now commonly available and in use by which internet access is possible, eg, mobile phones, iPads, computers and certain television appliances. Furthermore, such a restriction is thought to be unworkable and an undue restriction upon common, everyday activity. The applicant accepts, and I conclude, that it would be sufficient to impose instead the following condition:
To advise the CCO of every device used by [the respondent] to access the internet and the location of that device.
Condition 44 - Restriction on personnel permitted to use respondent's computer or internet access
104 The applicant seeks the imposition of a condition:
With respect to any computer in your possession that is connected to the internet or has been used by you to access the internet, not allow any other person to use or access that computer (other than the designated witness E, a CCO or WA Police) without the approval in advance of a CCO or WA Police.
105 The imposition of such a condition was opposed by the respondent on the basis that it was unnecessary and impractical. However, the applicant seeks to support such a condition on the basis that it is a means of ensuring that there is no avenue for evasion or explanation by the respondent by blaming someone else should it be found that child pornography or other impermissible activity has been accessed by that computer. There is no suggestion that the imposition of such a condition would be unduly onerous for the respondent or anyone else and I am satisfied that it should be imposed.
Condition 46 - Use of computers to access pornography
106 The applicant seeks the imposition of a condition that the respondent should not search for pornographic images or stories during access to any computer or any other device capable of internet access.
107 This condition was opposed by the respondent on the basis that it was unduly broad and that pornographic sites are so prevalent on the internet that any person using the machine may inadvertently access one. I am not sure that this risk is as great as the respondent submits but the applicant acknowledges that there can be a fine line as to what constitutes pornography and that in the present case the real need for precaution is to prevent access to child pornography.
108 Accordingly, the applicant accepts that the condition may be amended by inserting the word 'child' before the phrase 'pornographic images or stories'. With that modification, I am satisfied that the condition should be imposed in view of the respondent's assessed deviant interest in paedophilia.
Condition 48 - Avoidance of possession of any toys, etc, likely to entice children
109 The applicant originally sought the imposition of a term 'whilst in any public place, not to be in present possession of any children's toy, game or confectionary capable of constituting an enticement to children, unless such possession is for a legitimate purpose'.
110 The respondent opposed this condition on the basis that it was unduly onerous, could give rise to misunderstanding if the respondent simply purchased food, confectionary or the like for the use of himself or immediate friends. Furthermore, it was pointed out that the respondent's pattern of offending in the past had not been to lure or entice children to his presence through the promise of gifts or other inducements but, rather, as the end result of a lengthy process of grooming which has already been described.
111 In view of this, the applicant agreed that the proposed condition is unnecessary and could be deleted. Each of the psychiatrists reporting on the respondent's condition agreed that his past pattern of offending was neither random nor impulsive.
112 With those modifications to the proposed conditions, all of which have been incorporated in the annexure, I am satisfied should be imposed, that the conditions as set out in the annexure should be imposed.
112 Accordingly, I am satisfied that the respondent, Gavin John Wesley, is serious danger to the community and should be the subject of a supervision order made pursuant to s 17(1)(b) of the Dangerous Sexual Offenders Act 2006 (WA) for a period of five years from the date of this order on the conditions set out in the annexure hereto.
ANNEXURE SETTING OUT THE TERMS AND CONDITIONS OF THE SUPERVISION ORDER TO BE MADE IN RESPECT OF THE RESPONDENT GAVIN JOHN WESLEY
7. Be subject to electronic monitoring under s 19A.
Reporting to the Community Corrections Officer and supervision by the Community Corrections Officer
(2004) 221 CLR 30
(2008) 38 WAR 307