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[2022] WASC 206
General information, not legal advice.
Supreme Court of WA
2022-06-22
Smith J
Original judgment source is linked above.
1 On 6 June 2019, the State of Western Australia made an application under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). The application was made under s 8 of div 1 for preliminary orders under s 14, and for a div 2 order under s 17(1) detaining the respondent, Mr Sandwell, in custody for an indefinite term for control, care or treatment (a continuing detention order) or alternatively, releasing him subject to conditions (a supervision order).
2 A preliminary hearing was conducted by Jenkins J on 4 July 2019. The interim detention order was not opposed by Mr Sandwell. After hearing from counsel, her Honour was satisfied on the material before the court that there were reasonable grounds for believing that a court might find that Mr Sandwell is a serious danger to the community. It was ordered, pursuant to s 14(2)(b)(i) of the DSO Act, that Mr Sandwell be detained in custody until the conclusion of the application.
3 Her Honour fixed the date for the div 2 hearing on 7 October 2019. On 7 October 2019, an application was made on behalf of Mr Sandwell to adjourn the hearing because an assessment for inclusion in an accommodation program had not been completed. The div 2 hearing was adjourned to 19 November 2019.
4 On 19 November 2019, the court was informed that Mr Sandwell had been deemed suitable for the supported accommodation program and would be eligible to receive accommodation (if available) and support after six months custodial engagement, which period would expire in April 2020. The div 2 hearing was then adjourned to 8 May 2020.
5 By May 2020, Mr Sandwell had experienced a deterioration in his health. He had an established history of spinal problems, including narrowing of the spinal canal, myelomalacia and impingement of cervical nerve roots. His condition was such, that at that time, he was wheelchair bound.
6 One of the court appointed psychiatrists, Dr Mark Hall, in a report dated 8 May 2020, expressed the opinion that it was not possible to comment on the impact of Mr Sandwell's reported deterioration of his physical condition on the risk of his sexual reoffending, until such time as an opinion could be obtained from those in a position to provide definitive treatment and regular advice in regard to his prognosis for mobility.
7 On 18 May 2020, Archer J made an order vacating the div 2 hearing set for 25 May 2020 because Mr Sandwell was awaiting an appointment with a neurosurgeon.
8 On 9 July 2020, the High Risk Serious Offenders Act 2020 (WA) (HRSO Act) received Royal Assent, as a result of which pt 1 of the HRSO Act came into effect, and other parts came into force on 26 August 2020 by proclamation. Upon commencement of those parts of the HRSO Act, the DSO Act was repealed.[1]
9 By operation of s 124(1) of the HRSO Act, if an application made under the DSO Act had not been finally determined by the commencement day, the application and the proceedings continue and may be determined under the HRSO Act, and for the purposes of determining the application under the HRSO Act, the application is taken to have been made under the corresponding provision of the HRSO Act.
10 Consequently, on the coming into operation of the HRSO Act, the div 2 hearing was to be determined as if it was an application for a restriction order under s 48 of the HRSO Act.
11 On 18 November 2020, Mr Sandwell underwent a decompressive laminectomy.
12 As a result of the need to obtain medical reports following Mr Sandwell's recovery and rehabilitation from spinal surgery, a restriction order hearing was not listed for hearing in 2021.
13 In a report by a neurological registrar, Dr Omar Bangash, dated 20 September 2021, Dr Bangash stated that to accurately outline the prognosis of Mr Sandwell, he would require a review at 12 to 18 months post operatively.
14 At a directions hearing on 7 December 2021, the restriction order hearing was listed for hearing on 7 June 2022.
15 Prior to the hearing on 7 June 2022, additional documents and up‑to‑date psychiatric reports, a community supervision assessment report and an updated proposed management plan were filed and served upon Mr Sandwell.
16 After hearing counsel for the parties at the hearing on 7 June 2022, and having heard oral evidence given by Dr Gosia Wojnarowska, Dr Mark Hall, and Ms Emma Cashmore, and after considering the reports of each of these witnesses and other relevant documents received into evidence, a community supervision order was made in relation to Mr Sandwell. The supervision order:
(a) is subject to the standard conditions and additional conditions; and
(b) commenced from 8 June 2022 for a period of 10 years.
17 These reasons set out the reasons why the court found that Mr Sandwell is a high risk serious offender, why it was necessary to make a restriction order, and why a supervision order was made for a period of 10 years.
(a) to provide for the detention in custody or the supervision of high risk serious offenders to ensure adequate protection of the community and of victims of serious offences; and
(b) to provide for continuing control, care or treatment of high risk serious offenders.
19 The court must determine whether the respondent is a high risk offender, and to do so the court is to determine if there is a risk that the respondent would commit a serious offence.
An offender is a high risk serious offender if the court dealing with an application under this Act finds that it is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.
21 A 'serious offence' is an offence that is specified in sch 1, div 1 of the HRSO Act, or specified in sch 1, div 2, and is committed in circumstances indicated in relation to that offence in div 2.[3] Schedule 1 comprises a list of serious violent and sexual offences, the majority of which attract a maximum penalty of imprisonment of seven years or more.
22 The State bears the onus of satisfying the court that an offender is a high risk serious offender.[4] The court, in considering whether it is satisfied of the matters in s 7(1), must have regard to the following matters listed in s 7(3) of the HRSO Act:
(a) any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section;
(b) any other medical, psychiatric, psychological, or other assessment relating to the offender;
(c) information indicating whether or not the offender has a propensity to commit serious offences in the future;
(d) whether or not there is any pattern of offending behaviour by the offender;
(e) any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;
(f) whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;
(g) the offender's antecedents and criminal record;
(h) the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;
(i) the need to protect members of the community from that risk;
(j) any other relevant matter.
23 In addition, the court must disregard the possibility that the person might temporarily be prevented from committing a serious offence by imprisonment, remand in custody, or the imposition of bail conditions.[5]
24 If the court is satisfied that there is a risk that the respondent would commit a serious offence, the court must then consider whether the risk would be unacceptable in the absence of a restriction order.
25 In The State of Western Australia v ZSJ, Fiannaca J remarked shortly after the HRSO Act came into operation, that the HRSO Act operates largely as the Dangerous Sexual Offenders Act 2006 (WA) did, and whereas previously the question was framed in terms of whether the respondent was a 'serious danger to the community', the question now is whether he is a 'high risk serious offender', but the matters about which the court must be satisfied are essentially the same.[6]
26 A finding that there is an unacceptable risk is an evaluative and predictive finding of fact involving a balancing exercise which requires the court to have regard to, among other things:[7]
(a) the nature of the risk (the commission of a serious offence, with serious consequences for the victim);
(b) the likelihood of the risk coming to fruition; and
(c) the serious consequences for Mr Sandwell if a restriction order is made (of either detention, without having committed an offence, or being required to be subject to what might be an onerous supervision order).
27 If the court is satisfied to the requisite standard that there is an unacceptable risk that the offender would commit a serious offence if not subject to a restriction order, the court must then turn to consider whether a detention order or a supervision order should be made.
28 The powers conferred by the HRSO Act, like the now repealed DSO Act, are not to be exercised for the purpose of imposing additional punishment on the offender, but rather, for the ultimate purpose of protecting the community.[8] This requires the court to choose the order that is the least invasive or destructive of a respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community.
29 The approach of the court under the DSO Act, and now the HRSO Act, is not to be guided by the principle that there be no risk of reoffending. The issue is whether the risk of reoffending is reduced to a reasonably acceptable level that ensures adequate protection of the community.[9]
30 When considering whether to make either an indefinite detention order or a supervision order the court is to be guided by the principle of risk minimisation. Specifically, minimising the risk of reoffending by committing a serious offence to a level that ensures adequate protection of the community, as opposed to elimination of any risk of committing a serious offence.[10]
31 The court should not make a supervision order unless satisfied on the balance of probabilities that the respondent will comply with the standard conditions set out in s 30 of the HRSO Act. The respondent has the onus of proving that he will substantially comply.[11] In respect of this issue, in The State of Western Australia v ACJ, Fiannaca J relevantly pointed out:[12]
In essence, I must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with, and will enable the attainment of, the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious offence.
As I identified in Hart, some matters that will be of relevance are (a) the respondent's attitude to the conditions of the supervision order (in particular whether he is likely to deliberately flout the conditions); (b) his capacity to comply with the conditions; (c) what measures there are in place to ensure he would substantially comply; and (d) the relative importance of any breach that might occur, in terms of the impact it would have on the practical effect of the supervision order in achieving the objects of the HRSO Act. In particular, where engagement in counselling is to be a condition of the supervision order, the respondent's willingness to engage in a meaningful way, rather than just attend the counselling session, will be a relevant consideration, given the significance of counselling as a means of monitoring risk as well as assisting in the reduction of risk. The same may be said of engagement in supervision with the Community Corrections Officer (CCO) allocated to the respondent.
Even where the court is satisfied that the respondent will substantially comply with the standard conditions of a supervision order, the court must make a CDO if it is not satisfied (which includes if it is simply left in doubt) that conditional release under a supervision order will ensure an adequate degree of protection to the community.
3.0 The evidence at the hearing of the application for a restriction order
33 The book of materials dated 26 September 2019 contains:[16]
(a) a copy of Mr Sandwell's Western Australian criminal record;
(b) a chronology of offending prepared by the Office of the Director of Public Prosecutions for Western Australia;
(c) prison records, including substance use test results, a history of Prisoners Review Board decisions, management plans, and medical records;
(d) statements of material facts, transcripts and other relevant documents which relate to the facts and sentencing of Mr Sandwell for serious sexual offences;
(e) treatment reports of programs undertaken by Mr Sandwell whilst in custody; and
(f) psychiatric reports prepared for a div 2 hearing in 2019 by psychiatrists Dr Wojnarowska and Dr Hall, a proposed management plan prepared by Dr Dylan Galloghly in 2019, and a community supervision assessment report prepared by Ms Kimberley Comery in 2019.
34 The first supplementary book of materials contains:[17]
(a) prison records, including a Prisoners Review Board decision made on 29 May 2019 imposing a post‑sentence supervision order for a period of two years (which order did not take effect because of the interim detention order made by Jenkins J on 4 July 2019);
(b) medical records relating to Mr Sandwell's cervical spondylotic myelopathy, rehabilitation post cervical laminectomy, and other related medical conditions;
(c) a copy of the approval by National Disability Insurance Agency (NDIA) dated 11 May 2022 of a plan for Mr Sandwell which started on 3 May 2022;
(d) medical reports obtained from neurologists and surgeons in 2020, 2021 and 2022; and
(e) court ordered psychiatric reports of Dr Hall dated 19 September 2019 and 8 May 2020, and Dr Wojnarowska dated 24 September 2019 and 4 May 2020.
35 The second supplementary book of materials contains:[18]
(a) a post-sentence supervision report prepared for the Prisoners Review Board dated 20 May 2019, and a copy of the post‑sentence supervision order made by the Prisoners Review Board on 29 May 2019;
(b) addendum psychiatric reports of Dr Hall dated 2 June 2022 and Dr Wojnarowska dated 27 May 2022;
(c) updated community supervision assessment report of Ms Cashmore dated 1 June 2022; and
(d) updated proposed management plan of Dr Ben Bannister dated 2 June 2022.
36 At the outset of the hearing, counsel for Mr Sandwell informed the court that:
(a) Mr Sandwell conceded that the court could be satisfied he is a high risk serious offender; and
(b) the risk he would commit a serious offence could be minimised to a level that ensures adequate protection of the community by making a supervision order.
37 Mr Sandwell elected not to give or adduce any evidence.
38 The State submitted that if the court is satisfied that Mr Sandwell is a high risk serious offender, the court should make a restriction order by making a supervision order containing not only the standard conditions required by the HRSO Act, but also additional specified conditions for a period of no less than 10 years.
4.0 The respondent's antecedents and criminal history 4.1 Family and social history
39 Mr Sandwell is now 55 years old, single with no dependents. He was born in the United Kingdom and came to Australia at the age of five. Until he was 18 he lived in the south‑west. The family often moved on account of his father's work in sawmills. As a result he attended a number of different schools due to the transient nature of his family. During his time at high school he was often truant, and was suspended from school on two occasions. The first occurred after throwing a duster at the head of a teacher, and the second for leading a student strike.
40 His parents' relationship was characterised by a high level conflict but not physical violence. They first separated for six months when he was aged 14, and permanently separated when he was aged 18.
41 Mr Sandwell had a troubled relationship with his father during his childhood and adolescence. He told Dr Hall when he was interviewed in 2019 that his father had a short temper, and he had to 'only speak out of turn to cop a hiding'. He was very close to his mother and received a lot of attention, affection and protection relative to his sisters.
42 When he was 18 his father was imprisoned for Centrelink fraud. His mother then terminated the relationship (with his father) and relocated to Perth.
43 Mr Sandwell has worked in hospitality and service stations. He has had significant gaps in his employment history, in part, because of periods of imprisonment. He has a long history of cannabis use.
44 Mr Sandwell first became aware of a sexual interest in males at the age of 15, and a sexual interest in children at the age of 17. He met his wife when he was 18. She was 10 years his senior and had four children, ranging in age from 2 to 12 years. They married when he was 20 years old. Before they were married they and her children lived with his parents for a number of months before his father was imprisoned, and his mother moved to Perth.
45 Mr Sandwell began offending against his stepdaughters when he was 20 years old. The offending continued for seven years. After disclosure of the offending against his stepdaughters, he and his wife separated.
46 In December 1998 and in July 2000, Mr Sandwell was convicted of offences against his stepdaughters, sentenced to substantial periods of immediate imprisonment, and released on parole on 12 October 2002.
47 Following his release from prison he commenced a relationship with a woman who was a friend of his sister who had a 10 year old son. This child also became a victim of his offending. At the time the relationship with the boy's mother commenced he was on parole for offending against his stepdaughters, and on bail for further sexual offences against young boys. He was later imprisoned for sexual offences committed whilst he was on parole. Notwithstanding his imprisonment, this relationship with the boy's mother continued for a period after he was released from prison in 2006.
48 Mr Sandwell has an older sister and a younger sister. He is now estranged from both of his sisters. His mother, who is now 88 years old, resides in a nursing home and continues to be supportive of him. He, however, has no contact with his ex-wife or his former partner.
49 He had a circle of friends but says that they are all cannabis users or dealers.
50 Mr Sandwell recently reported to Dr Wojnarowska, when interviewed on 9 May 2022, that he occupies his time in prison by attending Bible study, playing Xbox and studying business at TAFE one day per week. He intends to remain connected with the church if he is released on a restriction order, as he sees this connection as a protective factor against future offending.[19]
51 Mr Sandwell's record of the offending began with stealing offences in 1985 and 1992, and were followed by offences of cannabis cultivation, and possession of a smoking implement in 1994.
52 His record of sexual offending began in April 1998 when he was convicted of an offence of evil designs, and fined $300 for using a mirror under the side panel of a toilet or change room stall to look at a 10-year-old boy whilst he was urinating.
53 In December 1998, he was convicted of offences against one of his stepdaughters. The offending started in 1987 when the victim was 6 years old and continued until she was 13 years old. The offences commenced with indecent dealing by touching the child's breast area and vagina and asking her to masturbate his penis, then escalated to sexual penetrations which began when the victim was aged between 7 and 9 years old. He had sexual intercourse with the victim twice when she was 12 years old and digitally penetrated her vagina when she was 13. He was convicted of five counts of indecent dealing of a child under 13 years of age, five counts of sexual penetration without consent, and four counts of aggravated sexual penetration without consent. For these offences he was sentenced to a total effective term of 7 years and 6 months' imprisonment.
54 In July 2000, he was convicted of offences against his other stepdaughter. These offences occurred between 1990 and 1991, when the victim had just turned 11. He was convicted of three counts of indecent dealing with a child under the age of 13, and he was sentenced to a total effective term of 18 months' imprisonment. These offences involved rubbing or squeezing the victim's nipples.
55 In September 2004, he was convicted of two counts of indecent dealing with a child under the age of 13. These offences occurred nine months into his parole on 8 July 2003. He indecently dealt with a 12 year old boy in Kmart, by touching his buttocks, then went to a different aisle in Kmart and indecently dealt with a second 12 year old boy by grabbing his penis and testicles. He was sentenced to 12 months' imprisonment for the offences.
56 He was released on parole again on 7 March 2006.
57 On 24 December 2012, Sleight DCJ made a two-year Child Protection Prohibition Order pursuant to s 90(1) and s 95(1) of the Community Protection (Offender Reporting) Act 2004 (WA) that prevented Mr Sandwell from being in the company of any children at his residence and entering a shopping centre or complex unless accompanied by his mother or sister.[20]
58 On 27 November 2015, he was convicted of fast-track pleas of guilty to one count of indecently dealing with a child under the age of 13 years; two counts of indecently recording a child of or over the age of 13 years and under the age of 16 years; one count of indecently dealing with a child of or over the age of 13 years and under the age of 16 years; and two counts of possessing child exploitation material. He was sentenced to a total effective term of 6 years imprisonment, and a fine of $400. The sentences for these offences were backdated to 14 July 2015, and he was made eligible for parole.
59 He was also convicted of four charges on a notice under s 32 of the Sentencing Act 1995 (WA).
60 He appealed against the sentences, the appeal was allowed and he was resentenced to a total effective term of 4 years imprisonment. The facts of this offending was summarised by the Court of Appeal as follows:[21]
On 21 February 2013, police executed a search warrant at the appellant's residential address. During the search, officers located a number of items, including a laptop bag containing a 4 gigabyte thumb drive and a 500 gigabyte hard drive. These items were seized and sent for analysis.
As a result of the analysis, police identified two videos of the victim, J, made by the appellant. The victim was 14 years old at the time of the offending, and the appellant was 44 years old. The first video showed the victim asleep on the appellant's lounge. His underwear was pulled down and his buttocks were being pulled apart by the appellant to expose his anal passage to the camera. The appellant was charged with one count of indecently dealing with a child of or over the age of 13 years and under the age of 16 years, and one count of indecently recording a child of or over the age of 13 years and under the age of 16 years (counts 3 and 1 respectively on indictment 963).
The second video showed the victim lying on the appellant's lounge with his erect penis protruding out of the top of his underwear. The video moved in to focus on the victim's genitalia. The appellant was charged with one count of indecently recording a child of or over the age of 13 years and under the age of 16 years (count 2 on indictment 963). The conduct the subject of these counts occurred in November 2010.
As a result of the analysis, police also located on the devices 381 images and 72 videos categorised as child exploitation material. These included 156 images identified as category 1 child exploitation material; 59 images and 26 videos identified as category 2 child exploitation material; 35 images and one video identified as category 3 child exploitation material; 126 images and 41 videos identified as category 4 child exploitation material; and five images and four videos identified as category 5 child exploitation material. The appellant was charged with one count of possession of child exploitation material (count 4 on indictment 963).
The offence of indecently dealing with a child under the age of 13 years (indictment 457 of 2015) occurred on 1 February 2015, after the seizure of the electronic devices from the appellant's residence, but before the devices were analysed. The incident occurred in a Coles Supermarket. The victim, M, was standing with her mother near a checkout counter. She was eight years of age. The appellant passed the victim as he walked towards the exit to the supermarket, and as he did so, he pressed his fingers between her buttocks over the material of her skirt. The victim alerted her mother, and the appellant was subsequently arrested and charged.
On 8 May 2015, police executed a search warrant at the appellant's residential address. During the search, police officers seized a laptop, which was sent for forensic analysis. The laptop was found to contain two images which were classified as category 1 child exploitation material. The appellant was subsequently arrested, and during an interview with police, he admitted to downloading the images and using them for sexual gratification. The appellant was charged with one count of possession of child exploitation material (count 5 on indictment 963).
Three of the four charges on the s 32 notice related to 0.9 g of cannabis and a plastic smoking implement found during the search of the appellant's residence. The appellant told police that the cannabis and smoking implement were for his personal use. The appellant also told police that he allowed family members and friends to use his residence to smoke cannabis on a regular basis. The remaining charge on the s 32 notice was failing to comply with reporting obligations pursuant to s 29 of the Community Protection (Offender Reporting) Act 2004 (WA). The appellant has been registered on the national child offenders system since March 2006. On 11 March 2015, the appellant activated an iCloud account and an email account to access it but did not report that he had done so to the Sex Offender Management Squad until 21 March 2015, outside the required seven day period under that Act.
61 Mr Sandwell pursued at least four applications for parole between 2017 and 2019. Each application was denied by the Prisoners Review Board.
62 His sentence for the offences for which he was sentenced on 27 November 2015, expired on 13 July 2019.
63 On 29 May 2019, the Prisoners Review Board made a two-year post‑sentence supervision order.[22]
4.3 Relevant medical conditions of the respondent[23]
64 In September 2004, psychiatrist, Dr Srna, diagnosed Mr Sandwell with paedophilia, antisocial personality disorder, and a past history of depressive episodes.[24]
65 In September 2019, Mr Sandwell commenced taking fluoxetine, a selective serotonin reuptake inhibitor (SSRI) antidepressant that is useful for reducing the frequency and intensity of sexual thoughts and urges. He was subsequently assessed by Dr Wynn Owen on 15 October 2019 in relation to his suitability for antilibidinal medication. Dr Wynn Owen considered hormonal antilibidinal treatment to be contraindicated in Mr Sandwell but recommended an increase in the dose of fluoxetine from a starting dose of 20 mg daily to 40 mg daily. For some reason unknown to the court, Dr Hall or Dr Wojnarowska, this increase was not implemented.[25]
66 When Dr Wojnarowska and Dr Hall gave oral evidence, they both stated it was their opinion that Mr Sandwell's dose of fluoxetine should be increased to 40 mg daily. Both Dr Wojnarowska and Dr Hall separately explained the reason why they would recommend an increase in the dose of fluoxetine.
67 Dr Hall said that the current dose taken by Mr Sandwell is well tolerated by him (without side effects), that it is known that higher dosages of fluoxetine are more likely to result in a desired reduction in libido, and Mr Sandwell's self-report that his current dose together with his cervical myelopathy resulting in him having a persistent erectile dysfunction and a decrease in his frequency of fantasising and thinking about sex, needed to be treated with a degree of caution.[26]
68 When Dr Wojnarowska gave oral evidence, she said that she would not expect the level of reduction in Mr Sandwell's libido on a low dose of 20 mg of fluoxetine a day.[27]
69 Mr Sandwell suffers from a degenerative spondylosis at the C3-C5 with superimposed neurological injury, which he sustained during trauma. Dr Wojnarowska in her addendum psychiatric report dated 25 May 2022 reports that his condition is currently stable neurologically but as his condition is degenerative, further degeneration is expected, and is likely that he may develop recurrent problems later on. However, the decompression of his cervical spinal cord surgery in November 2020 has halted or delayed the rapid neurological deterioration.[28]
70 Due to his neurological spinal condition, Mr Sandwell is able to walk a few steps with one elbow crutch. He has residual bladder and bowel disturbances, residual spasticity and sensory disturbances in his hands and fingers and loss of fine motor skills in his hands.
71 Mr Sandwell reported to Dr Wojnarowska when she interviewed him on 9 May 2022 that he was able to walk 10 m with the assistance of a crutch. However, he uses a wheelchair the majority of the time including when he showers. He also reported to Dr Wojnarowska that:
(a) after his surgery his grip has improved but is still very weak; and
(b) he believes that after his operation in November 2020, he is currently at the optimal level of functioning, and no further improvement in his mobility or muscle strength is expected.
72 Mr Sandwell has been granted the National Disability Insurance Scheme ('NDIS') funding for assistance and support for the management of his physical disability. This funding includes being provided with physiotherapy, crutches, a wheelchair, shower facilities, home improvements, occupational therapy, taxi vouchers and adult nappies.[29]
73 Mr Sandwell has also had peripheral oedema of unknown cause since 2016, for which he is treated with diuretic medication. He also has hyperlipidaemia treated with medication, impaired glucose tolerance managed by diet, and a slight heart murmur due to longstanding mild mitral valve prolapse.[30]
74 Mr Sandwell had a history of entrenched pattern of dependence and salience of cannabis use over all other aspects of his life.[31]
75 Mr Sandwell reported to Dr Hall in 2019 that he commenced smoking cannabis when he was aged 15, having been introduced to it by a neighbour. He became dependent on cannabis from the age of 17, by which time he was smoking 10 cones per day and became moody and irritable if unable to obtain cannabis.
76 When he was last in the community he was smoking 30 cones per day. He told Dr Hall in 2019 that when he was smoking: [32]
(a) his worries were gone;
(b) he was in his own world;
(c) he did not have any cares; and
(d) the effect of cannabis was to make it more difficult for him to make use of sex offending relapse prevention strategies and caused him to have less empathy, took away the shame and guilt of offending, and reduced his moral inhibitions.
77 Mr Sandwell made similar reports to Dr Wojnarowska, who states in her addendum report dated 25 May 2022, that Mr Sandwell reported in the past he had been using substances that created an illusion that people around him, including his victims, were happy. He also reported to her that he has now developed a different perspective and has not relapsed into substance use since his imprisonment.[33]
78 Prison records of incidences and occurrences support Mr Sandwell's claim that he has ceased the use of cannabis. Results of frequent substance use testing, ranging over the period of his imprisonment from 14 July 2015, record no instances of use of any illicit drugs or substances, including cannabis.
4.5 Reports prepared under s 74 of the HRSO Act for the hearing of the application and the extent to which the offender cooperated in the examination, and other assessment reports including psychological reports
79 Dr Hall and Dr Wojnarowska both prepared reports under s 74 of the HRSO Act.
80 In 2019, when he prepared his first report, Dr Hall formed the opinion (which opinion he has not departed from) Mr Sandwell is at high risk of committing a serious sexual offence, if not subject to a continuing detention order or a supervision order.[34]
81 In his first report, Dr Hall found that Mr Sandwell does not suffer from a serious mental illness but diagnosed him as having paedophilic disorder with a secondary diagnosis of antisocial personality disorder, cannabis dependence, in remission (whilst in custody) and paraphilia not otherwise specified.
82 In 2019, Dr Hall undertook an assessment of Mr Sandwell's risk of future sexual reoffending utilising the STATIC 99‑R and PCL‑R tools and the RSVP structured clinical guidelines. Dr Hall found that:
(1) Mr Sandwell's score on the STATIC‑99R was 7 which placed him in the well above average risk category. The recidivism rate of sexual offenders with the same score as Mr Sandwell would be expected to be approximately five times higher than that of a typical sex offender.
(2) Mr Sandwell's score on the PCL‑R placed him in the moderate range, thereby indicating that he has some of the features of psychopathy but he sits below the threshold for a diagnosis of psychopathy.
(3) Mr Sandwell had a number of dynamic risk factors under the RSVP including sexual deviance, chronicity of sexual violence, diversity of sexual violence, attitudes that support or condone sexual violence, problems with self awareness, problems with sleep and coping, psychological coercion in sexual violence, extreme minimisation or denial of sexual violence, history of problems with intimate and non-intimate relationships, problems with planning (including no accommodation, no employment prospects, lack of a positive social network and no viable plans for the future), problems with substance abuse, and problems with treatment insofar as he has failed to benefit from intensive interventions and supervision, having previously reoffended on parole.
83 Dr Hall formed the opinion in his first report (which opinion remains unchanged at the time he gave evidence on 7 June 2022) that:[35]
(a) if Mr Sandwell were to sexually reoffend, the type of sexual violence that he would be most likely to commit would be that of a frotteuristic-type (ie rubbing himself against or touching a child's body for sexual gratification) or voyeuristic‑type offence or filming or otherwise recording victims to serve as stimulus for fantasy‑driven masturbation either at that time or a later time. There would be minimal physical harm to a victim of this type of offence in that it was unlikely that sexual violence would escalate to serious or life‑threatening violence but victims would likely suffer acute distress at the time, as well as anxiety and distrust going forward;
(b) another, albeit less likely, offending scenario is that of more serious contact offending against children (indecent dealings or some form of sexual penetration) fuelled by a desire to gratify a deviant sexual urge. This type of offending would require more access to a child over a longer period of time and establishing a level of trust or grooming the child or the child's carers to gain access to the child. A victim of this type of offence would probably suffer more considerable psychological harm, and have problems with their self-esteem, their mood, their emotions, their trust and their ability to form intimate relationships in the future. These problems would manifest themselves as behavioural problems that cascade into their family system with far‑reaching psychological and behavioural consequences;[36]
(c) without intervention, it is likely that Mr Sandwell would engage in offending behaviour as soon as he felt he could get away with it. Warning signs that might signal that the risk increasing or was imminent include the use of cannabis, behaviour reflecting sexual preoccupations such as frequenting 'beats' in lieu of seeking a stable relationship, accessing or attempting to access children even if not unsupervised, attending shopping centres out of school hours, high levels of stress, or accessing child exploitation material; and
(d) serious non-sexual violence remains unlikely, as Mr Sandwell's fantasies generally involve mutuality.
84 Dr Hall formed the opinion in 2019 that Mr Sandwell:
(a) possesses a number of antisocial personality traits including history of aggressiveness, impulsivity, reckless disregard for the safety of himself and others, deceitfulness, irresponsibility, lack of genuine remorse and repeated offending that exploits others for his own personal gain;
(b) has a history of exhibiting an attitude of disobedience to authority. He has a proven capacity for grooming, and ability to gain positive regard from program facilitators despite his inconsistency and reoffending also speaks to underlying antisocial personality traits; and
(c) is an unreliable historian in regard to the extent to which his deviant behaviour and fantasising are active. As such, it is unclear how much stock can be placed in his claim that he does not (now) wish to offend.
85 When Dr Hall gave oral evidence, he informed the court that it is still his opinion that it is not clear how much weight can be placed upon Mr Sandwell's self-reporting of his extent of how much he thinks about sex or engaging in sexual behaviour, and that his self-report about these matters should not be discounted but be treated with some caution.[37]
86 Dr Hall stated in his first report that the key factors contributing to Mr Sandwell's level of risk were as follows:[38]
(a) extensive, longstanding and varied history of sexual offending;
(b) appetitive motivation to offend due to a persistent deviant sexual interest in children;
(c) sexual preoccupation;
(d) antisocial personality traits;
(e) failure to benefit from programmatic intervention despite positive treatment completion reports;
(f) the corollary of the previous factor is that positive completion reports in the future may not necessarily be a reliable indicator of his motivation or intentions;
(g) lack of suitable accommodation; and
(h) history of rapid reinstatement of cannabis dependence in the community following imprisonment.
87 In his report dated 2 June 2022, Dr Hall states that he remains of the opinion that Mr Sandwell remains a high risk of committing a serious offence if not subject to restriction order, and with the exception of current sexual preoccupation, and lack of suitable accommodation, the risk factors identified in the first report remain the same.
88 Dr Hall is now of the opinion that Mr Sandwell's NDIS funding and the fact that if released on a supervision order Mr Sandwell has now secured accommodation at a private rental share house that is overseen by a church group are positive developments with the effect of improving the manageability of the risk of Mr Sandwell committing a serious offence.
89 Dr Hall reported that Mr Sandwell had informed him that he would utilise the NDIS support worker in times of emotional need if he felt depressed and lonely, or found himself having inappropriate thoughts about children, or had urges to use cannabis.
90 As to Mr Sandwell's sexual preoccupation, Dr Hall noted that Mr Sandwell reported having persistent erectile dysfunction and a decrease in the frequency of fantasising and thinking about sex, stating that he might feel briefly attracted to a young person, such as may appear on television about once every two to three weeks. Dr Hall also notes in his report that Mr Sandwell attributed his erectile dysfunction to a combination of the SSRI medication (fluoxetine) and his cervical myelopathy. He told Dr Hall he did not wish to cease the SSRI medication and was concerned that if he ceases the medication he may masturbate more frequently over fantasies and successfully.
91 Dr Hall stated in his report that Mr Sandwell's response to fluoxetine (being a drug useful for reducing the frequency and intensity of sexual thoughts and urges) also has the effect of improving the manageability of the risk of Mr Sandwell committing a serious offence.
92 Finally, in his 2 June 2022 report, Dr Hall stated that Mr Sandwell's risk (of committing a serious offence), the factors contributing to it, and the management steps already taken since his first report (dated 19 September 2019) are such that the risk can be managed in the community under a supervision order.
93 When giving oral evidence, Dr Hall said that if a supervision order is made it should be for a period of not less than five years,[39] but he could not say with confidence that it should be for a period of 10 years because of Mr Sandwell's age and physical condition.
94 In Dr Wojnarowska's first report (dated 24 September 2019), Dr Wojnarowska expressed the opinion that Mr Sandwell's risk of reoffending is high if he is not subject to a detention order or a supervision order. Dr Wojnarowska found that the most important risk factor for sexual offending, namely paedophilic interest in children, was still present, and unlikely to respond to psychological intervention only.
95 When she wrote her first report, Dr Wojnarowska was of the opinion that further incarceration of Mr Sandwell was unlikely to improve the outcome (his risk of sexual offending), because he had successfully completed relevant programs and further participation in programs would not decrease his risk to the community but he could be managed on a supervision order of a length of not less than 10 years with strict standard conditions and possibly additional conditions relating to his treatment.[40]
96 Dr Wojnarowska, like Dr Hall, also diagnosed Mr Sandwell as having paedophilia, non-exclusive type; attracted to female and male children,[41] and cannabis use disorder, currently in remission in prison. However, she did not agree with the earlier diagnosis made by psychiatrist, Dr Srna, that he has antisocial personality disorder, but said instead he has some evidence of avoidant and narcissistic traits, the latter suggested by extreme self‑absorbed and self‑serving behaviours. To this extent, she disagrees with Dr Hall's secondary diagnosis.[42]
97 Dr Wojnarowska interviewed Mr Sandwell on 16 September 2019 before preparing her first report. In her first report she notes that his history of offending has been consistent over the years, and apart from the time when he denied some of his offences and pleaded not guilty, he appeared to have been a truthful and reliable historian, and indicated that there were more victims than his convictions reveal.
98 Mr Sandwell reported to Dr Wojnarowska that he had been preoccupied with sexual fantasies about prepubescent male and female children since his teenage years. He also reported having been exposed to various aspects of sexuality, including pornography, having experimented with male peers and being, at the age of 14 years, a victim of child sexual abuse by an adult male. At the time he did not perceive the act as abuse as he found the experience pleasurable, and was given money.
99 He also reported that his sexual fantasies were diverse and he struggled with defining his sexual identity. Although he has been predominantly interested in young adolescent males, he has also fantasised about female children as well as female and male adults. He reported that he has resolved his identity crisis in recent years and now identifies himself as a homosexual male with a preference to adolescents.
100 Mr Sandwell also reported to Dr Wojnarowska that at the time of offending he did not think he was hurting the children, but that he had started gaining some insight into the long‑term effects of child sexual abuse on its victims and during his current imprisonment has reflected on what he has done. He told Dr Wojnarowska that he used to justify his behaviour by telling himself that he loved the victims, especially his stepdaughters, and he had no understanding until recently of how his viewing of child exploitation material contributed to child maltreatment in general.[43]
101 As to the characteristics of Mr Sandwell's offending, Dr Wojnarowska found that:[44]
(a) there is a frequency in his sexual offending. Mr Sandwell's documented offences and collateral history indicate that there were other offences for which he has never been charged. He reported he had been offending at the time when he was in a stable relationship by frequenting male toilets and watching male children urinating, and he was also a prolific user of child pornography;
(b) he has consistently offended against female and male children, and against an adolescent male (the victim of offences for which he was convicted in 2015). He would always lose interest in female children once they entered puberty, but in relation to males, his sexual interest extends from childhood to adolescence;
(c) Mr Sandwell accepts that he had groomed his victims, especially familiar ones. He bought them presents and food, and took them on excursions, fishing, etc. Some of his offences were predatory and others opportunistic. The latter were conducted against stranger children and could be described as brazen, which is suggestive of Mr Sandwell's impulsivity and disinhibition;
(d) there is no suggestion of Mr Sandwell ever being physically violent towards his victims, and he did not proceed with the abuse when one of his victims specifically told him to desist. However, the fact that he approached two children in a very public place (Kmart) and another child in another shopping centre suggests that should children not be supervised, or are located in isolated areas, the degree of sexual violence towards them could have been greater;
(e) sexual penetration and the presence of stranger victims in shopping centres are perceived as an escalation of his sexual offending;
(f) his cannabis use and lack of meaningful activity are the important factors in Mr Sandwell's offending; and
(g) the presence of an intimate relationship was not protective against his offending.
102 In 2019, Dr Wojnarowska undertook an assessment of Mr Sandwell's future risk of sexual reoffending utilising the STATIC‑99R and PCL‑R tools and the RSVP structured clinical guidelines, and reported her findings in her first report as follows:
(1) On the STATIC‑99R Dr Wojnarowska arrived at the same score 7 for Mr Sandwell as Dr Hall did.
(2) Mr Sandwell scored 12 on the PCL‑R which is below the cut‑off for the presence of psychopathy. Dr Wojnarowska formed the opinion that this is an important finding that mitigates, to some extent, Mr Sandwell's risk to the community.
(3) Dr Wojnarowska identified that Mr Sandwell has a number of dynamic risk factors under the RSVP including sexual deviance, which is the most relevant as its presence is associated strongly and specifically with the risk of sexual violence.
103 Dr Wojnarowska found that Mr Sandwell's offending behaviour is driven by his high sexual drive and interest in children combined with impulsivity facilitated by disinhibition while intoxicated. She is of the opinion that his offending behaviour was not likely to occur within a short period of time after release, as he is unlikely to resume cannabis consumption immediately.
104 It was Dr Wojnarowska's opinion in 2019 (which opinion she still held when giving evidence on 7 June 2022) that if Mr Sandwell was to sexually reoffend, there were two possible scenarios:
(i) he enters into a relationship with a person who has either children or grandchildren in their care and would then start a grooming process, inevitably leading to offending;
(ii) the second scenario is potentially more dangerous and would be more difficult to predict or be prevented. This scenario is after becoming intoxicated with cannabis and watching pornography, he impulsively approaches a child in a public place such as a street, shopping centre, cinema or game zone, culminating in offending. If the child is unsupervised, abduction is not an unlikely outcome.
105 In her first report, Dr Wojnarowska reported on her assessment of Mr Sandwell's attitude towards his risk which was as follows:[45]
(a) Mr Sandwell understood that his sexual interest in children was lifelong and that he would require external resources to manage himself. He understood that without the adequate supports in the community he may potentially relapse into cannabis use and offending. He reported that his sexual preoccupation had significantly decreased over the years in custody, and he did not perceive himself now as having high sexual drive or experiencing deviant sexual fantasies. He agreed, however, with the proposition that the lack of exposure to children was a significant factor in this change;
(b) he reported that cannabis played a significant, but not a causal role in his offending. He also reflected on the fact that being in a relationship had not been a protective factor for him. He said that what he had done was abhorrent and there was no justification for his behaviour. He acknowledged the reason for his offending was that he was a paedophile, and has had a lifelong sexual interest in children;
(c) when questioned about his safety plan in the community he said that it would be intrinsically linked to the supports he has been told would be available to him. He had been preparing himself for the status of dangerous sexual offender and thought it would be beneficial for him to have psychological counselling, being subject to regular urine drug screening, and have access to regular supports from his community corrections officer and the sexual offender management squad. He perceives these measures as necessary to reduce his risk of reoffending; and
(d) he understood that any exposure to children in the community would place him at risk of becoming sexually aroused and sexually preoccupied, and was supportive of being subject to strict conditions, including exclusion zones should he be released on a supervision order. He agreed that his psychological treatment should focus on managing his deviant sexual interest and developing other healthy ways of sexual expression.
106 Dr Wojnarowska interviewed Mr Sandwell again on 9 May 2022. In her second addendum report Dr Wojnarowska states that there is no change in her psychiatric diagnoses of Mr Sandwell since her first report in 2019.[46]
107 In May 2022, Dr Wojnarowska undertook another assessment of Mr Sandwell's risk of serious reoffending utilising the STATIC‑99R and PCL‑R tools and the RSVP structured clinical guide. She found there was no change to her assessment of Mr Sandwell's level of risk, and remained of the opinion that his risk of reoffending in a sexual manner, if not subject to a restriction order, was high. In particular, she is of the opinion that the most important causal risk factor for his sexual offending, paedophilic interest in children was still present and unlikely to abate in the near future. Dr Wojnarowska is also of the opinion that Mr Sandwell's age of 55 is not a protective factor as sexual interest in children is likely to persist into old age.[47]
108 Dr Wojnarowska remains of the opinion that Mr Sandwell is a good candidate for long‑term psychological counselling aiming at consolidation of his treatment gains, developing more strategies to manage his deviant sexual thoughts, and improving his ability to function independently with better communication skills. She does not recommend further group programs. She recommends that Mr Sandwell engage in individual psychological treatment to improve his self‑esteem and self‑management, to strengthen his insight. She is of the opinion that this will provide assistance in reintegrating Mr Sandwell into the community where he is likely to experience adjustment problems given the length of time he has spent in prison.[48]
109 When giving oral evidence, Dr Wojnarowska was asked whether there has been any changes in her assessment of the dynamic risk factors of social adjustment. In reply, Dr Wojnarowska said that it appears that Mr Sandwell now has realistic plans to expand his social circle, is not seeking an intimate relationship and is connected with his church and the Salvation Army.[49]
110 Dr Wojnarowska records in her second addendum report that Mr Sandwell reports his antidepressant medication sufficiently reduces his libido and sexual preoccupation, but she is of the opinion that the veracity of this statement can only be tested once he is released to the community, and is subject to a community‑based order. It is her recommendation that should there be evidence of re‑emergence of sexual preoccupation with children, a different type of antilibidinal treatment should be considered.[50]
111 It is Dr Wojnarowska's opinion that if Mr Sandwell is released on a supervision order, it should be for a period of 10 years, and:[51]
(a) he should be prohibited from accessing any type of pornography (including adult);
(b) his internet access should be restricted, and monitored closely for any re‑emergence of interest in children, for example children's clothing catalogues and toys;
(c) exclusion zones should be as inclusive as possible, and the timing of his access to public places needs to be taken into consideration. For example, an exclusion should extend to outside school hours and holiday periods where the traffic of children in shopping centres is amplified. Prior permission to attend shopping centres should be sought, time restrictions implemented, and Mr Sandwell should be allocated one specific shopping centre to attend for his essentials which has adequate monitored CCTV;
(d) he should be required to keep a diary record to enable the veracity of his reporting of his whereabouts to be cross checked; and
(e) the consequences of any breach, particularly one directly increasing his risk to the community (cannabis use, breach of an exclusion zone) should be immediate.
112 When Dr Wojnarowska gave evidence she was asked whether Mr Sandwell's immobility was a protective factor (against the risk of offending). In response, Dr Wojnarowska said it was her opinion that his problems with immobility did not reduce the risk but increased manageability (managing his risk) because his movements are physically compromised.[52]
113 Dr Bannister is a senior forensic psychologist. He prepared his report by reviewing prison records, a proposed dangerous sexual offender management plan prepared by forensic psychologist, Dr Galloghly, on 9 September 2019, psychiatric reports prepared by Dr Hall and Dr Wojnarowska, and consulting Ms Cashmore.
114 Dr Bannister has not interviewed Mr Sandwell. In his report he summarises Mr Sandwell's intervention history of participation of criminal programs, and the assessments conducted by Dr Hall and Dr Wojnarowska.
115 In his report, he reports that in the event that Mr Sandwell is either made subject to a continuing detention order or a community supervision order, he will be allocated an experienced psychologist from the Corrective Service Forensic Psychological Intervention Team to address his outstanding criminogenic needs.
116 Ms Cashmore is a senior community corrections officer. She has been the allocated community corrections officer for Mr Sandwell for approximately 18 months. Her report provides an update on the respondent's circumstances since a community supervision assessment report was prepared in 2019.
117 Ms Cashmore states in her report that since October 2019 (in effect since he has been subject to an interim detention order) Mr Sandwell has attended appointments with a senior community corrections officer as required, and has consistently engaged with officers to a high standard. She reports discussions with Mr Sandwell have primarily focused on his ongoing medical issues, accommodation options, community supports and likely proposed conditions of a supervision order. She also reports he has confirmed his understanding of the conditions proposed by the State and has not identified any specific concerns with his ability or willingness to comply with a supervision order.[53]
118 Ms Cashmore records in her report that Mr Sandwell has readily identified the importance of engaging with appropriate supports upon release, in addition to establishing structure and a pro‑social routine, inclusive of constructive vocational and leisure pursuits. She is of the opinion that Mr Sandwell presents with a realistic attitude, and recognises the likely difficulties he will face upon release. It is her opinion that he has consistently acknowledged he would benefit from the structure and support of a supervision order.[54]
119 Mr Sandwell has been granted assistance and funding from the NDIS for a 12 month period.
120 Ms Cashmore states in her report that the community offender monitoring unit have been working towards provision of a viable plan for possible release to a supervision order, following Mr Sandwell's registration with the NDIA on 31 March 2022, and that he has received NDIS funding support of $162,767.53 to be utilised as follows:
Core Supports totalling $119,563.52
The NDIS plan indicates that this category is for flexible supports to enable maximum independence in personal activities of daily living and includes funding for personal continence products, prosthetics and orthotics, and low-cost assistive technology to assist with personal mobility. Additionally, funding has been provided for flexible supports to enable Mr Sandwell to '...explore and participate in community based activities of interest and to develop, build and maintain friendships'. This includes funding to build Mr Sandwell's capacity to access his locate community, recreational activities, and develop and utilise his social participation skills in the community, with the assistance of support workers.
It is noted that Mr Sandwell's core support funding also includes funding for transport totalling $1,784.00; to support him in accessing and participating in social, community and recreational activities.
Capacity Building totalling $41, 420.01
Improved Life Choices: $1,485.75
121 Ms Cashmore reports that Mr Sandwell has private accommodation available which has been described as a 'share house' faith-based household, which has oversight by the Salvation Army. It has four bedrooms, has a maximum capacity of four residents, and is a private rental tenanted by a Mr C who is a member of the Salvation Army. Mr C commenced contact with Mr Sandwell in January 2022, and has since that time maintained regular telephone and in‑person contact.
122 Ms Cashmore informed the court that the community offender unit is satisfied that Mr C understands the nature of Mr Sandwell's convictions and associated conditions of a high risk serious offender supervision order, including global positioning system monitoring.
123 The Western Australian Police carried out a desktop spatial analysis of the proposed accommodation. The analysis undertaken by the police indicated that there were currently four residents residing at the address under assessment, these residents have a history of serious offences involving violence, none of which include sexual offences, and there had been three police attendance reports at the property in the last 12 months which related to threats made by one of the occupants.[55] This information is not entirely currently correct.
124 The community offender monitoring unit has established through its enquiries that:[56]
(a) two people's names were listed on the lease for the property as tenants, one of which was Mr C, and the other was another person employed by the Salvation Army who had recently married and moved out of the property to live with his wife;
(b) there was a third person living at the property who had been included in the program run by the house, but who was exited from the program with the assistance of the police. The police attendance reports of threats made by one of the occupants of the premises related to that particular individual;
(c) Mr C admits that he has prior convictions which occurred when he was misusing alcohol, but that he is now a man of faith; and
(d) the Salvation Army has strict rules prohibiting the consumption of alcohol.
125 When Ms Cashmore gave oral evidence she informed the court that (in light of the recent enquiries undertaken by the offender monitoring unit) there were no issues of concern about the proposed residence.[57]
126 The spatial desktop analysis conducted by the police also identifies the locations of places that would be designated as exclusion zones from which Mr Sandwell should be prohibited from entering. These are childcare centres and schools.
127 When Ms Cashmore gave oral evidence she explained that if Mr Sandwell is released on a supervision order, the proposed conditions will enable the community offender monitoring unit to construct GPS exclusion zones that will preclude him from entering or being in the immediate facility of particular areas, which areas will include childcare centres and schools. If Mr Sandwell were to enter an exclusion zone his ankle GPS device would immediately start to vibrate, which would result in an immediate telephone call to him by the electronic monitoring officer, and he would be asked to explain why he is in the exclusion zone and directed to immediately leave the exclusion area.[58]
4.6 Whether or not there is any pattern of offending behaviour by the respondent
128 The evidence clearly establishes that Mr Sandwell has engaged in a pattern of serious sexual offences against children. Based on his criminal history, he has a recurrent way of acting in a sexually inappropriate way towards children.
129 Mr Sandwell's convictions illustrate a pattern of serious sexual offending against both male and female children. Mr Sandwell gained the trust of victims known to him (groomed them) before he offended against them. These offences consisted of his most serious sexual offences. His offending against his younger stepdaughter extended over seven years which included grooming, bribes and threats which enabled his offending to progress to multiple sexual penetrations. Whilst he was offending against this child, he also offended against another stepdaughter.
130 Mr Sandwell has targeted both girls and boys unknown to him in public settings. He has admitted to purposefully visiting public areas with an intent to watch children, and offend against them.
131 Mr Sandwell's conduct also extended to filming (offending against a sleeping 14-year old boy), and he has also repeatedly viewed and masturbated to child exploitation material.
4.7 Whether or not the offender has a propensity to commit serious offences in the future
132 The evidence clearly establishes that Mr Sandwell has a propensity to commit serious offences in the future. He has 25 convictions for serious sexual offences against six children aged between 6 and 14 years, as well as for possession of child exploitation material.
133 Mr Sandwell agrees that he is a paedophile. When interviewed by Dr Wojnarowska, he indicated he understood his sexual interest in children was lifelong, and that he would require external resources to manage his risk of offending.
134 Both Dr Hall and Dr Wojnarowska have diagnosed Mr Sandwell as having paedophilic disorder. Dr Wojnarowska is of the opinion that his paedophilic interest in children is the most important causal risk factor for sexual offending.
4.8 The respondent's efforts to address the cause or causes of his behaviour, and his participation in rehabilitation programs and whether they have had any positive effect
135 In Dr Bannister's proposed high risk serious offender management plan report dated 2 June 2022, Dr Bannister records that Mr Sandwell has participated in several criminogenic programs from 1998 until December 2018 as follows:[59]
(a) In 1998 Mr Sandwell attended seven introductory sessions with the Safecare Program. It was reported that Mr Sandwell had emotional difficulties that may have reduced his capacity to understand what was and was not sexual abuse.
(b) Mr Sandwell completed an Intensive Sex Offender Treatment Program (ISOTP) in 5/11/2001 to 31/05/2002. The Treatment Completion Report (TCR) detailed that Mr Sandwell used significant grooming and coercion in the offending against his step‑daughters; that he disclosed additional offending behaviour including using mirrors to watch boys urinate in public toilets; and that Mr Sandwell had 'an extensive preoccupation which included sexual activity with fantasy about males, females, children, and adults' (p.3). Mr Sandwell purportedly made treatment gains including better understanding of high-risk situations, the nature of consent, and understanding the factors underlying his offending.
(c) Mr Sandwell attended nine sessions of a Sex Offending Maintenance Program (SOMP) in the community between November 2002 and July 2003 and a further five sessions between May and August 2004. Treatment completion/non‑completion reports were not available.
(d) Mr Sandwell completed a Medium Sex Offender Treatment Program on 23/11/2005. The TCR noted his disclosure of deviant sexual fantasises since the age of 17 and ongoing sexual preoccupation behaviour including chronic masturbation and regular visits to 'beats' for impersonal sex with younger and older males. Issues relating to boredom and cannabis use were also noted. He was deemed as having ongoing treatment needs relating to sexual preoccupation, engagement in illegal sexual fantasy, and reinforcement of this by masturbation. Further treatment and management were recommended including an assessment for anti‑androgen therapy.
(e) Mr Sandwell attended a SOMP between March and August 2006. The TCR noted that Mr Sandwell had reported maintaining an awareness of high-risk situations and had a good understanding of relapse prevention strategies.
(f) Mr Sandwell completed a Think First Program on 07/12/2016. Factors discussed by program facilitators as contributing to his offending included boredom, loneliness, cannabis use, seeking comfort and contact, and placing himself in high-risk situations. Mr Sandwell was described as a highly motivated participant who made gains across a number of domains including problem-solving, generating alternatives, consequential thinking and self-management.
(g) Mr Sandwell completed a Pathways Program on 27/04/2017. Treatment facilitators reported that Mr Sandwell engaged well and made treatment gains pertaining to awareness of previous maladaptive emotional states, thought patterns, high-risk situations, peers and exposures. Additionally, he was reportedly able to better understand the link between his cannabis use and offending behaviour.
(h) Mr Sandwell completed another ISOTP on 06/11/2017. During the program Mr Sandwell disclosed attachment difficulties with his father, isolation and loneliness as a child, his own abuse experiences, and confusion about his sexuality. Offending issues addressed included: responding to emotional issues with offending-related behaviour (e.g., frequenting shopping centres and watching pornography); social isolation; using cannabis to cope with stress; believing that children were sexual beings; fantasising about deviant behaviour; using internet chat rooms, and ongoing use of and masturbation to both appropriate and inappropriate pornography. Mr Sandwell was reportedly able to develop a risk management plan including identifying warning signs such as feeling lost/boredom, excessive internet use, cannabis use, negative self-talk/thoughts, and visiting parks. Detailed coping strategies included enrolling in TAFE, volunteer work, challenging negative thoughts, distraction techniques, and communicating better with supports. Mr Sandwell's past reluctance to seek support was also a noted issue.
(i) Mr Sandwell completed 13 sessions of individual psychological intervention with Ms Tania Wilson-Brown between 21/05/2018 and 17/12/2018. This counselling was recommended upon the completion of the 2017 ISOTP. The goals of counselling pertained to: self-esteem issues; distorted thinking and beliefs about children; addressing Mr Sandwell's paedophilic sexual preference; sexual pre‑occupation; substance use relapse prevention, and interpersonal relationship skills. The TCR detailed that Mr Sandwell was a proactive participant who displayed a high level of insight into treatment issues. Reported treatment progress included: working through how to challenge negative psychological processes associated with his low self‑esteem; improving overall emotional management; strengthening Mr Sandwell's insight into behaviours and thought processes that reinforced his sexual preference for children and overall sexual pre-occupation; working through sexual preference issues including his report of being bisexual; identifying triggers and strategies to manage cannabis use, and consolidating release planning. Overall, Mr Sandwell's participation in therapy was viewed as positive and the treatment provider detailed that Mr Sandwell had insight into the major issues associated with his offending (i.e., deviant sexual preference and fantasy; pornography use, justifying offending; issues of boredom and isolation, grooming, and cannabis use) and had appropriate awareness of how to manage his risk (i.e., avoiding pornography and cannabis use, avoiding contact with children, using professional and personal supports, being active/counteracting boredom). It was also noted that Mr Sandwell reported a significant reduction in sexual pre‑occupation and masturbation behaviour and a willingness to continue individual therapy should he be released into the community.
136 As the State points out in its submissions, although Mr Sandwell has repeatedly participated in sex offender programs, both in custodial and community settings, he has continued to sexually offend against children each time in the past when he has been released from prison.
137 Although the authors of the January 2018 Intensive Sex Offender Treatment Program report, and the Senior Counselling Psychologist who prepared a psychological intervention report in January 2019 record that:
(a) he completed the program and individual psychological intervention successfully; and
(b) he was proactive and displayed a high level of insight into issues associated with his offending
Dr Wojnarowska and Dr Hall are of the opinion that Mr Sandwell has ongoing treatment needs.
4.9 Is there a risk that if the respondent were not subject to a restriction order, he would commit a serious offence, and is there a need to protect members of the community from this risk?
138 The evidence establishes, and Mr Sandwell himself concedes, there is a risk that if he is not subject to a restriction order, he would commit a serious offence.
139 It is obvious that there is a need to protect members of the community from this risk because offences involving sexual abuse of children create irreparable harm to highly vulnerable members of the community.
140 Both Dr Hall and Dr Wojnarowska undertook assessments of the risk of Mr Sandwell committing serious sexual offences both in 2019 and 2022. They found that he is at high risk of offending in a sexual manner if he is not subject to a restriction order.
141 Both Dr Hall and Dr Wojnarowska are of the opinion that Mr Sandwell requires ongoing individual psychological counselling to address his treatment needs, to develop more strategies to manage his deviant sexual thoughts. They are also each of the opinion that he should continue antilibidinal treatment (SSRI) to reduce his sexual drive, which Mr Sandwell reports has reduced his libido.
5.0 Is the respondent a high risk serious offender?
142 Having regard to the factors in s 7(3) of the HRSO Act, and to the evidence before the court, I am satisfied to a high degree of probability that it is necessary to make a restriction order in relation to Mr Sandwell to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence.
143 Mr Sandwell's risk of serious offending is unacceptable. Children who are highly vulnerable members of our community must be protected from the serious risk of harm that could be inflicted on them by Mr Sandwell.
144 The evidence of Dr Hall and Dr Wojnarowska is that if Mr Sandwell is not made subject to a restriction order within a reasonable period of time, he would commit a sexual offence with serious consequences for the victim.
145 The most likely scenario would be that he is likely to spend the majority of his days in shopping centres or other public spaces where he will watch children, become aroused and sexually preoccupied - leading to a re‑emergence of sexually deviant impulses. Although he has restrictions in his mobility, I accept Dr Wojnarowska's evidence that his current mobility restrictions are not severe enough to prevent him from inappropriately touching or grabbing a child in public.
146 If the court does not make a restriction order, Mr Sandwell will be released into the community with the only form of structured supervision and monitoring of him being under the Community Protection (Offender Reporting) Act 2004 (WA). Although the Prisoners Review Board made a post-supervision sentence order in relation to Mr Sandwell, this order expired on 13 July 2021.
147 The reporting obligations under the Community Protection (Offender Reporting) Act and monitoring under that legislative regime would not be sufficient to prevent Mr Sandwell from reoffending. This is because, as he properly concedes, he requires ongoing medical and psychological treatment, together with other supports and other restrictions on his movements to restrict his contact with children, and consumption of cannabis.
148 Unlike many respondents to HRSO Act restriction applications, Mr Sandwell welcomes the imposition of restrictions on visits to shopping centres or other places where he is likely to encounter children, and drug testing so as to motivate him to continue his abstinence from cannabis.
149 It is only through a restriction order that the risk Mr Sandwell poses to the community can be managed.
6.0 A supervision order should be made by the court
150 I am satisfied that a supervision order should be made. This is because I am satisfied that the risk Mr Sandwell poses can be managed to an acceptable level in the community.
151 The paramount consideration is the need to ensure the adequate protection of the community. Having weighed all of the evidence, I am satisfied that, combined with Mr Sandwell's willingness to comply with all conditions of a supervision order, the risk that is presented by releasing Mr Sandwell on a supervision order can be reduced or guarded against to a level that is reasonably acceptable, and will ensure the adequate protection of the community by the imposition of appropriate additional conditions.
152 In all the circumstances, Mr Sandwell has satisfied me on the balance of probabilities that he will substantially comply with the standard conditions specified in the HRSO Act. Absent the imposition of the additional proposed conditions, I would not be so satisfied.
153 It should be noted, although the court need only be satisfied that an offender substantially comply with the standard conditions of the supervision order, an offender is required by a supervision order once made to comply with the standard terms and the additional terms. If a police officer or a community corrections officer reasonably suspects that an offender is likely to contravene, or was contravening or had contravened a condition of a supervision order, then he or she may apply to a magistrate for the issue of a warrant of arrest and to bring the offender before this court.[60]
154 When released under a supervision order, Mr Sandwell will be subject to the standard conditions as prescribed in the HRSO Act, together with additional conditions which total 55 conditions for a period of 10 years. The standard conditions, among other conditions, require Mr Sandwell to report to and receive visits from a community corrections officer, notify his place of residence and place of employment, and be under the supervision of a community corrections officer. The standard conditions also require him to be subject to GPS electronic monitoring.
155 The additional conditions are specifically designed to achieve the appropriate management of Mr Sandwell's risk of offending. They are comprehensive and address his specific risk factors, and put in place essential measures for supervision, support and boundaries to manage his risk.
156 The first additional condition requires Mr Sandwell to take up residence at a specified address, and spend each night at that address or at a different address, only if a different address is approved in advance by a community corrections officer. Reliable accommodation for a high risk offender is necessary for supervision and structure.
157 There are additional conditions which require his engagement with services and treatment designed to address his offending behaviour. He will be required to engage with a psychologist or psychiatrist and attend all appointments as directed. He will also be required to undertake and fully comply with any medication regime in accordance with the medical practitioner's direction. Further, he will be required to comply with all testing to monitor his compliance with that medication. He will also be required to permit any medical practitioner, psychologist or support worker to advise the community corrections officer if they become aware or suspect that he has, or intends to cease undergoing pharmaceutical antilibidinal and/or antidepressant medication contrary to the advice of the medical practitioner.
158 These conditions are important as they will put in place management strategies and monitoring of medical treatment that is specifically prescribed to reduce his sexual drive, and thus reduce his risk of serious offending. This is because these conditions contemplate very close supervision and ongoing psychological intervention, medical supervision of medication prescribed to reduce Mr Sandwell's sexual urges, and a requirement that he fully comply with a medical practitioner's directions as to this medication.
159 In particular, I am satisfied that the imposition of these comprehensive conditions proposed by the State in addition to the standard conditions that the court must impose, will reduce the risk posed by Mr Sandwell to a level that is reasonably acceptable and will ensure the adequate protection of the community.
160 The additional conditions also address the risk of Mr Sandwell accessing child exploitation material, and monitor his use of the internet.
161 The additional conditions also put in place strict regimes prohibiting Mr Sandwell from accessing shopping centres and other such places where children frequent outside school hours and during school holidays.
162 Dr Wojnarowska had input into the drafting of the additional conditions proposed by the State.
163 Except for one of the additional conditions proposed by the State, both Dr Hall and Dr Wojnarowska agree the proposed additional conditions are appropriate measures to manage Mr Sandwell's risk of offending.
164 Dr Wojnarowska is of the opinion that Mr Sandwell should be prohibited from accessing any type of pornography,[61] whereas Dr Hall is of the opinion that Mr Sandwell should only be prohibited from accessing child pornography. Dr Hall would not be concerned if Mr Sandwell viewed adult pornography. It is his view that children, and not adults, are the causal triggers to Mr Sandwell's offending behaviour.[62]
165 After having considered the conflicting opinions of Dr Wojnarowska and Dr Hall, and having heard from counsel for each of the parties, the court imposed an express restriction on Mr Sandwell viewing pornography of any kind but provided for an exception to these conditions which will enable him to obtain permission to view adult pornography from a community corrections officer, if a written report is obtained from a psychiatrist supporting Mr Sandwell's access to adult pornography.
166 I formed the opinion the order should be for a period of 10 years. This is because the supervision of Mr Sandwell needs to be long enough to allow his treatment needs to be addressed, and to put in place a lengthy period to enable Mr Sandwell to establish a lifestyle and patterns of behaviour that do not encompass triggers of his offending behaviour.
167 I have made an order suppressing the proposed address of Mr Sandwell. This order was requested by the community offender monitoring unit. I accept that a suppression order of this kind is necessary to protect officers of the community offender monitoring unit, the owner of the premises, Mr C, and Mr Sandwell from vigilante action.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
[6] The State of Western Australia v ZSJ [2020] WASC 330 [5].
[7] Italiano v The State of Western Australia [2009] WASCA 116 [46] (Buss JA); Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63] ‑ [65] (Wheeler JA); Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [26] (Steytler P and Buss JA); The State of Western Australia v Garlett [2021] WASC 387 [128] ‑ [130] (Corboy J).
[8] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [97] (Murray AJA).
[9] Director of Public Prosecutions (WA) v Dal [No 2] [2016] WASC 212 [33] (Beech J); The State of Western Australia v ACJ [2021] WASC 219 [24] (Fiannaca J).
[10] The State of Western Australia v Atkins [No 2] [2022] WASC 45 [19] - [20] (Strk J).
[12] The State of Western Australia v ACJ [2021] WASC 219 [36] ‑ [38] (footnotes omitted).
[21] PNS v The State of Western Australia [2016] WASCA 174 [4] - [10].
[23] See also the evidence of Dr Hall and Dr Wojnarowska in 4.5.1 and 4.5.2 of these reasons.
[34] Exhibit 2, 379, par 99 and Exhibit 2, 444, par 19.
[35] Exhibit 2, 377 ‑ 378, pars 91 ‑ 94.
[40] Exhibit 2, 407, pars 18.1 and 18.2.
[41] ts 82; Dr Wojnarowska explained the diagnosis of non‑exclusive paedophilia as a sexual interest in adult sexual relationships as well as a sexual interest in children.
[42] Exhibit 2, 401(k) - 402, pars 6.1 and 6.2.
[43] Exhibit 2, 389 - 390, pars 7.1 ‑ 7.4.
[44] Exhibit 2, 394 - 395, pars 8.1 ‑ 8.6.
[45] Exhibit 2, 395 ‑ 397, pars 9.1 ‑ 9.7.
(2008) 38 WAR 307
(2007) 35 WAR 297