THE STATE OF WESTERN AUSTRALIA -v- ACJ [2021] WASC 219 (2 July 2021)

3 On 31 December 2019, at a time when the respondent was serving the last term of imprisonment, and within the final year of that sentence, the Director of Public Prosecutions for Western Australia (the DPP) made an application in the name of the State of Western Australia (the applicant) for an order under Division 2 of the Dangerous Sexual Offenders Act 2006 (WA) (the DSO Act) that -

(a) the respondent be detained in custody for an indefinite term for control, care or treatment (a continuing detention order);

(b) alternatively, the respondent be subject to conditions when not in custody (a supervision order).

4 The application was made on the basis that the respondent was, at that time, a serious danger to the community, in that there was an unacceptable risk that, if one of those orders was not made, the respondent would commit a serious sexual offence,[1] in particular, an offence of the kind he has previously committed against female children.[2]

5 The application was filed pursuant to s 8 of the DSO Act, which provided that such an application may be filed in relation to a person, referred to as 'the offender', who, at the time the application was filed, was under a custodial sentence for a serious sexual offence. The sentence the respondent was serving at the time the application was made was in respect of serious sexual offences.

6 At a preliminary hearing of the application on [REDACTED], pursuant to s 11 and s 14 of the DSO Act, [REDACTED] concluded on the balance of probabilities that there were reasonable grounds for believing that the court might find, under s 7(1), that the respondent is a serious danger to the community. Accordingly, his Honour made orders under s 14(2), setting 28 July 2020 as the date for the substantive hearing of the application under Division 2 of the DSO Act, and ordering that the respondent undergo examinations by two qualified experts, namely, Dr Wojnarowska (a forensic consultant psychiatrist), and Ms Hasson (a forensic psychologist) for the purpose of preparing reports as required by s 37 of the DSO Act.

7 The sentence the respondent was serving had been imposed on 26 April 2013, and was to expire on 25 April 2020. Section 14(2)(b)(i) of the DSO Act provided that if the respondent to an application (referred to as 'the offender') was in custody at the time of the application and might otherwise be released from custody before the application was finally decided, the court may order that the respondent be detained in custody for the period stated in the order. In accordance with that provision, [REDACTED] ordered that the respondent be detained in custody until the final determination of this application (the interim detention order).

8 The respondent has remained in custody by virtue of the interim detention order since [REDACTED].

9 The hearing of the application under Division 2 of the DSO Act proceeded on 28 July 2020 before me. At the conclusion of the hearing I reserved my decision.

10 The legislation governing the application has subsequently changed. As I noted at the outset, and will explain further below, the application now comes to be dealt with under the HRSO Act. As it will become apparent, the changes do not substantially affect the issues to be determined or the manner in which I must approach the application. Nevertheless, it is necessary to outline the statutory scheme that now governs the application.

11 The HRSO Act received the Royal Assent on 9 July 2020, as a result of which pt 1 of the HRSO Act came into effect.[3] Although that was before the hearing of this application, the relevant parts of the HRSO Act that affect these proceedings came into force after the hearing, on 26 August 2020 (commencement day)[4] by virtue of proclamation pursuant to s 2(1)(c) of the HRSO Act.[5] Upon commencement of those parts of the HRSO Act, the DSO Act was repealed.[6] Until that time, the DSO Act had effect, so the hearing was conducted under that statute.

12 Although the DSO Act was repealed on 26 August 2020, s 124(1) of the HRSO Act provides that, as the application made under the DSO Act in these proceedings had not been finally determined by the commencement day, the application and these 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. By s 124(2), the application may be continued by the DPP or by the State Solicitor (by or under the authority of the Attorney General as provided in s 11 of the HRSO Act).[7] Further, by s 125, if an order made or direction given under the DSO Act is in effect on commencement day, it continues in effect and is taken to have been made or given under the corresponding provision of the HRSO Act. The interim detention order continues in effect accordingly.

(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.

(1) 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.

(2) The State has the onus of satisfying the court as required by subsection (1).

15 A 'restriction order' is a continuing detention order (CDO) or a supervision order, both of which are defined in terms that are similar to the meaning given to those forms of order in the DSO Act.[9]

16 As I noted in The State of Western Australia v ZSJ, the overall effect of the HRSO Act is to widen the scope of the regime that previously applied in respect of persons who came within the description 'dangerous sexual offenders' in the title of the DSO Act, to other offenders considered to be 'high risk serious offenders', within the definition to which I have just referred.[10] The widening of the previous regime is achieved by the definition of 'serious offence'.[11] In addition to offences that previously came within the definition of 'serious sexual offence' under the DSO Act, Parliament has determined that there are numerous other offences (most of which involve violence or some other particular danger to the community) from which the community requires protection by the making of a restriction order if there is an unacceptable risk the offender will commit such an offence.

17 However, although its scope is wider, the HRSO Act operates largely as the DSO Act did in respect of serious sexual offences.[12] 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. I will deal with those matters in more detail below.

The manner in which the application is to be determined under the HRSO Act

18 The application now comes to be dealt with as an application under s 35 of the HRSO Act, and in accordance with the provisions of s 48. As will appear below, the issues to be determined are essentially the same as were required to be determined under the DSO Act at the Division 2 hearing. The evidence and submissions presented at the hearing address those issues. Therefore, it has not been necessary to invite further submissions on the basis of the legislative change, and neither party has applied to adduce further evidence.[13]

19 As I discussed in ZSJ, given that the HRSO Act operates largely as the DSO Act did in respect of serious sexual offences, the concepts and criteria with which the court is concerned in determining applications under the HRSO Act are substantially the same as they were under the DSO Act.[14] Therefore, the jurisprudence established in respect of the DSO Act remains relevant in construing and applying the HRSO Act, with appropriate adaptation in cases involving non‑sexual offences.[15]

20 At [30] - [63] of ZSJ, I set out my reasons for coming to those conclusions, comparing relevant provisions of the DSO Act and the HRSO Act and referring to the second reading speech made to the Legislative Assembly in respect of the High Risk Offenders Bill 2019 by the Honourable Attorney General, wherein it was noted that the legislation was intended to fully preserve the provisions that applied in respect of dangerous sexual offenders in the DSO Act. I adopt what I said at [30] - [63] of ZSJ. However, for context, it will be necessary to outline the relevant provisions of the HRSO Act and the significant legal principles I must apply.

21 I set out, at [14] above, the provisions of s 7 of the HRSO Act, by which the circumstances in which a person is said to be a high risk serious offender are defined by reference to a finding by the court that it is satisfied of certain matters by acceptable and cogent evidence and to a high degree of probability. The State has the onus of satisfying the court of those matters. The nature of the evidence required, and the onus and standard of satisfaction are the same as under the DSO Act.

22 The matters about which the court must be satisfied under s 7(1) of the HRSO Act are that:

(1) it is necessary to make a restriction order in relation to the offender;

(2) the necessity for the order stems from the need to ensure adequate protection of the community; and

(3) what the community must be protected against is the 'unacceptable risk' that the offender will commit a serious offence.

23 Satisfaction of those matters to a high degree of probability constitutes a finding that the offender is a high risk serious offender.[16]

24 As I explained in ZSJ,[17] s 7(1) of the HRSO Act is to the same effect as the combined effect of s 7 and s 17(1) of the DSO Act, which was the statutory framework affecting these proceedings at the time of the hearing. In particular, when dealing with the risk posed by an offender who was originally before the court pursuant to the DSO Act, s 7 of the HRSO Act does not contain any criterion necessary to find that person to be a high risk serious offender that was absent in the DSO Act for the purposes of determining whether he was a serious danger to the community.[18] Further, a finding that it is necessary to make a restriction order to ensure adequate protection of the community against 'an unacceptable risk that the offender will commit a serious offence' necessarily entails a finding that, if the offender were not subject to a restriction order, there would be an unacceptable risk he would commit a serious offence, which was the formulation in s 7 of the DSO Act.[19]

25 The starting point under the HRSO Act is to determine if there is a risk that the respondent would commit a serious offence.

26 Pursuant to s 3 and s 5(1) of the HRSO Act, a 'serious offence' is an offence that is specified in Schedule 1 of that Act. Offences that were serious sexual offences under the DSO Act come within that definition, in that they are now set out specifically in Division 1, of Schedule 1, being 'offences that are serious offences in all circumstances'. In particular, the respondent's risk is alleged to relate to the types of offences he committed in the past. They included offences of sexually penetrating a child under the age of 13 years, indecently dealing with a child under the age of 13 years, indecently dealing with children over the age of 13 years and under the age of 16 years, and indecently dealing with a child who is a lineal relative. Those offences were contrary to s 320, s 321 and s 329 of the Criminal Code (WA) (Criminal Code), each of which is a specified serious offence in Schedule 1 of the HRSO Act. In addition, the respondent was convicted in earlier years of offences under provisions of the Criminal Code that have since been repealed and replaced with offences that cover the same conduct. They were offences of indecently dealing with a child under the age of 16 years and procuring a child under the age of 16 years to indecently deal with him (both under Criminal Code s 189), aggravated sexual penetration of a child under the age of 16 years (Criminal Code s 324E) and indecently assaulting a child under the age of 16 years (Criminal Code s 324C). Those offences are also serious offences by virtue of s 5(2) of the HRSO Act.

27 The next issue is whether the risk would be unacceptable in the absence of a restriction order. In Director of Public Prosecutions (WA) v Williams, Wheeler JA elucidated what, in her Honour's view, was meant by 'unacceptable risk' under the DSO Act.[20] Her Honour's elucidation of the meaning of that phrase, which was subsequently applied in cases under the DSO Act, also applies to the concept of 'unacceptable risk' under the HRSO Act. Her Honour said:[21]

In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention. (emphasis added)

28 The meaning of 'unacceptable risk' under the DSO Act was considered further in Director of Public Prosecutions (WA)v GTR, where Steytler P and Buss JA said that the word 'unacceptable' connotes a balancing exercise that will take into account the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim), the likelihood of the risk being realised, and the serious consequences for an offender if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order).[22] Again, those principles apply equally to the concept of 'unacceptable risk' as it relates to a 'serious offence' under the HRSO Act.

29 The need for the court to be satisfied 'to a high degree of probability' is a standard that is greater than a finding on the balance of probabilities but less than a finding of beyond reasonable doubt, but is otherwise incapable of further definition.[23] This does not necessarily mean that the risk must be at some high percentage of probability. A risk may be less than 50%, yet still be unacceptable. However, the court must identify what it is that constitutes the risk and makes it unacceptable and then consider whether or not those matters have been proved to a high degree of probability by acceptable and cogent evidence.[24]

30 Section 48 of the HRSO Act, which corresponds to s 17 of the DSO Act, provides:

(1) If the court hearing a restriction order application finds that the offender is a high risk serious offender, the court must -

(a) make a continuing detention order in relation to the offender; or

(b) except as provided in section 29, make a supervision order in relation to the offender.

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

31 It follows that the court must make a restriction order (i.e. either a CDO or a supervision order) if, having been satisfied of the matters set out at [22] above, it finds that the person is a high risk serio[25] offender.25

32 The court should make the order that is least invasive of the respondent's right to liberty, while at the same time ensuring an adequate degree of protection of the community, having regard to the paramount consideration stipulated in s 48(2).[26] As was decided in respect of s 17(2) of the DSO Act, that requirement does not exclude other considerations. Further, the use of the word 'adequate' indicates that a qualitative assessment is required. It cannot simply be assumed that the most assured preventative measure is detention and, therefore, the protection of the community will always favour such an order.[27]

33 However, the proviso in s 48(1)(b), referring to s 29, means that the court cannot make a supervision order, and therefore must make a CDO, unless it is satisfied, on the balance of probabilities, that a respondent will substantially comply with the standard conditions of a supervision order.[28] The respondent has the onus of proving that he will substantially comply.[29] That proviso and the statement of the onus of proof were previously incorporated in s 17 of the DSO Act.

34 The standard conditions referred to in s 29 are those specified in s 30(2) of the HRSO Act, which in the DSO Act were specified in relevantly identical terms in s 18(1).[30] A supervision order must contain conditions that the person who is subject to the order will:

(a) report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender's current name and address; and

(b) report to, and receive visits from, a community corrections officer as directed by the court; and

(c) notify a community corrections officer of every change of the offender's name, place of residence or place of employment at least 2 days before the change happens; and

(d) be under the supervision of a community corrections officer and comply with any reasonable direction of the officer (including a direction for the purposes of s 31 or s 32 [of the HRSO Act]);[31] and

(e) not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and

(f) not commit a serious offence during the period of the order;[32] and

(g) be subject to electronic monitoring under section 31[of the HRSO Act].

35 Therefore, the effect of s 29(1) and (2) of the HRSO Act (as was the case with s 17(3) and (4) of the DSO Act) is that the respondent must satisfy the court that he will substantially comply with those standard conditions before the court can make a supervision order.

36 In Director of Public Prosecutions (WA) v Hart,[33] I expressed views, which have been adopted in subsequent cases, as to the meaning of 'substantially comply with' in the equivalent provisions of the DSO Act. That interpretation applies to s 29(1) of the HRSO Act.[34] Accordingly, the words of that provision should be given their ordinary meaning, consistent with the purposes of the legislation and of the general conditions of a supervision order. 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.

37 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.[35]

38 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.[36]

39 Section 7(3) of the HRSO Act sets out a number of matters that the court must have regard to in considering whether a person is a high risk serious offender, being:

(a) any report prepared under s 74 for the hearing of the application and the extent to which the respondent cooperated in the examination required by that section;

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

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

(d) whether or not there is any pattern of offending behaviour by the respondent;

(e) any efforts by the offender to address the cause or causes of his offending behaviour, including whether he had participated in any rehabilitation programme;

(f) whether or not his participation in any rehabilitation programme has had a positive effect on him;

(g) the respondent's antecedents and criminal record;

(h) the risk that, if he were not subject to a restriction order, he would commit a serious offence;

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

(j) any other relevant matter.

40 This list is not closed and the matters overlap.

41 I note that one of the standard conditions that must be included in a supervision order, and with which the court must be satisfied the respondent would substantially comply, is that he not commit a serious offence during the period of the order (s 30(2)(f)). Although the respondent's risk is alleged to be in respect of sexual offending against children, and the application was brought on that basis, the effect of s 30(2)(f) is to require the court to be satisfied on the balance of probabilities that the respondent will not commit a serious offence of any kind specified in sch 1 of the HRSO Act. It is not an issue that requires further consideration in this case, as there is no suggestion the respondent might commit some other kind of serious offence.

42 In summary there are two matters to be determined in these proceedings:

(1) Is the respondent a high risk serious offender?

(2) If so, is the appropriate order a CDO or release into the community on a supervision order?

43 The applicant's case is that the court can be satisfied to the requisite standard that the respondent is a high risk serious offender, and that, having regard to all the circumstances, the court cannot be satisfied that a supervision order will ensure the adequate protection of the community against the unacceptable risk that the respondent would commit a serious offence, being a serious sexual offence against a girl under the age of 16 years (and potentially under the age of 13 years) of the kind he has committed previously. Therefore, the applicant's case is that the appropriate restriction order is a CDO.

44 The respondent's case is that he has undertaken programmes to address the factors that led to his past offending, that his sexual interest is in adult women and he does not have an ongoing sexual interest in girls under the age of 16 years, and, therefore, the court should not be satisfied that there is an unacceptable risk that he would commit a serious offence of the kind I have mentioned if he is not subject to a restriction order. In the alternative, the respondent's case is that the court can be satisfied to the requisite standard that he would substantially comply with the standard conditions of a supervision order and that such an order would provide adequate protection of the community, having regard to the conditions that have been proposed. Therefore, the respondent submits in the alternative, that the appropriate order is a supervision order, and he should be released to reside at a proposed residence where he would be living with his current adult partner.

45 In an application for a restriction order, the court must hear any admissible evidence called by the State and, if he elects to give or call evidence, any admissible evidence given by or on behalf of the respondent.[37] The rules of evidence apply, but are modified to permit the court to receive in evidence:[38]

(a) any document relevant to the antecedents or criminal record of the respondent; or

(b) anything relevant contained in the official transcript of any relevant proceeding against the respondent; or

(c) any relevant material that was tendered to the court, or that informed the court, in a relevant proceeding against the respondent; or

(d) any relevant material of the kind mentioned in s 7(3) relating to the respondent.

46 The evidence adduced by the applicant in these proceedings consisted of a Book of Materials (BOM), which was tendered by the applicant without objection, an email with additional information from the Community Offender Monitoring Unit (COMU) tendered at the hearing[39] and oral evidence given by:

(1) Dr Wojnarowska, Consultant Forensic Psychiatrist;

(2) Ms Hasson, Forensic Psychologist; and

(3) Ms Comery, Senior Community Corrections Officer (SCCO), who prepared a Community Supervision Assessment report.

47 A report titled Proposed Management Plan was prepared by Dr Bannister, Senior Clinical and Forensic Psychologist with the Forensic Psychological Services of the Department of Justice. That report, which was included in the BOM, reviewed the respondent's psychological treatment and identified factors that needed to be addressed in the further management of the respondent, whether in the community or in custody, in particular in respect of psychological treatment. Dr Bannister was unable to give evidence during the proceedings.

48 The BOM includes the reports of each of the witnesses and Dr Bannister, and comprehensive documentary materials concerning:[40]

(1) the respondent's antecedents, including his criminal records from Western Australia, New South Wales and South Australia, a chronology of his offending prepared by the DPP, and information from the Department of Corrective Services about the respondent's behaviour in prison;

(2) the offences the subject of Supreme Court proceedings INS 239 of 1990, including relevant witness statements, reports, and transcripts of the police interview with the respondent and the sentencing hearing;

(3) the offence the subject of Supreme Court proceedings INS 241 of 1994, including the statement of material facts, statements by the victim, investigating officer and the respondent, the sentencing transcript and reports relied upon by the court in sentencing;

(4) the offences the subject of District Court proceedings IND 590 of 2012, including the statements of material facts, transcript of the police interview with the respondent, statements by the victims, submissions for sentencing, transcript of the sentencing and reports relied upon by the court in sentencing; and

(5) the post-sentence reports prepared with respect to the respondent, including treatment programme reports, and reports prepared as part of his parole assessment.

49 The respondent did not give evidence at the hearing.

Consideration of the matters under s 7(3) of the HRSO Act

50 As I noted earlier, the matters listed in s 7(3) of the HRSO Act, to which the court must have regard, overlap. The matters in paragraphs (h) and (i), concerning the respondent's risk and the need to protect the community, involve conclusions that directly inform the question of whether the respondent is a high risk serious offender. Those matters are informed by the information and findings in respect of all of the other matters listed in s 7(3). Consideration of the questions concerning propensity and any pattern of offending behaviour (paragraphs (c) and (d)) will be informed by the respondent's antecedents and criminal record (paragraph (g)) and the findings in the reports and assessments referred to in paragraphs (a) and (b). Those findings will also inform the matters in paragraphs (e) and (f) concerning the respondent's efforts at rehabilitation and the effect of his participation in rehabilitation programmes.

51 It is convenient to start with the respondent's antecedents, including his criminal history, in particular the offending that is most relevant to the assessment of his risk of serious sexual reoffending.

Respondent's antecedents and criminal history Social history

52 The summary of the respondent's history, which follows, is collated from various materials in the BOM, including pre-sentence, psychological and psychiatric reports prepared for criminal proceedings, reports from sex offender treatment programmes in which the respondent has engaged, and the reports prepared for these proceedings, in particular the reports of Dr Wojnarowska and Ms Hasson.

53 The respondent is the eldest of five children. His parents migrated from Malta to Australia, but he was born here. The respondent was born in New South Wales in 1958 but moved to Western Australia as a young adult. His parents are now deceased, as is his youngest brother, who died in his thirties.

54 The respondent told Ms Hasson that, as at the time of his interview with her, he was not maintaining contact with his siblings, due to shame and embarrassment associated with his offending and imprisonment.[41] However, Dr Wojnarowska noted that the respondent's siblings were supportive of him, although they live in the eastern states.[42]

55 The respondent told Ms Hasson that his home life when he was growing up was happy and stable, and that his parents were loving and kind.[43] He said his father worked hard to support the family, and engaged with him and his siblings as much as possible.[44] The respondent told Ms Hasson that his parents had rules and boundaries, and instilled in the children pro-social attitudes, values and beliefs. The respondent also enjoyed a lot of contact with his extended family.[45] However, in contrast to his happy and stable home life, the respondent described a stressful and negative school and community experience, marked by bullying, both verbal and physical, because of his Maltese ethnicity.[46] Despite the very positive depiction of his parents, the respondent was critical of them for not doing enough to deal with the bullying he suffered. Similarly, despite the general impression of a happy home life, the respondent told Ms Hasson that he was sexually abused as a child by an uncle, and that his parents did not report it to the police when he disclosed the abuse to them, although, on reflection, he believed they became more protective of him.[47] The respondent told Ms Hasson that his 'dislike [of] his parents' lack of assertiveness', which he developed over the years, did not make him love them any less, but he had 'resolved not to be like them'.[48]

56 The respondent's description of his upbringing to Dr Wojnarowska was in similar terms to that given to Ms Hasson, but he identified some grievances not mentioned to Ms Hasson, and there were some inconsistencies between his account to Dr Wojnarowska and his account to Ms Hasson. The respondent told Dr Wojnarowska that he felt nurtured by his parents, despite his father being absent most of the time because he worked long hours.[49] However, he also told her that he received frequent physical punishment for misbehaviour, and that his parents lacked emotional warmth.[50] Further, he said he was never praised for his achievements in school, and felt his brother was favoured by his parents.[51] He said this led to him feeling angry and resentful during his formative years, and most of his childhood.[52] The grievance in respect of favouritism towards his brother appears to be at odds with the respondent's statement to Ms Hasson that his mother treated them all equally.

57 Also in contrast to the respondent's description to Ms Hasson of a happy and stable childhood, was the account he gave to Dr Wojnarowska of multiple traumatic childhood events. It is apparent that the respondent held grievances against his parents for inaction in respect of trauma suffered by one of his siblings and by him separately.[53] However, the most significant trauma, in terms of matters affecting his risk of reoffending, was the sexual abuse to which he was subjected by his uncle, which the respondent also described to Ms Hasson, although the account he gave to Ms Hasson differed from the account he gave to told Dr Wojnarowska, as I will discuss shortly. The respondent told Dr Wojnarowska that, when he disclosed the sexual abuse, his mother did not believe him.[54]

58 It is difficult to reconcile a number of the discrepancies in the respondent's accounts about his childhood, including the different perspectives about the way he felt towards his parents. Ultimately, there does not appear to be anything in the way he was raised that would explain his sexual offending. The most significant factor from his childhood that is relevant to his risk of reoffending is the sexual abuse, as will appear in my discussion of the expert evidence below. The other factor that may be relevant is the respondent's relationship history, which I will discuss next.

59 The respondent told Ms Hasson that he had his first intimate relationship was when he was 16 years old. It lasted for two years and included his first experience of sexual intercourse.[55] The relationship ended amicably.[56] He then had an emotionally intimate relationship with a woman who tragically passed away when he was 19 years old, which caused him much sadness.[57]

60 The respondent's account to Dr Wojnarowska of his relationship history differed to some extent and provides some insight into his attitudes, expressed at various times, towards sexual relationships with adult women. He told Dr Wojnarowska that he had a series of mostly long term girlfriends from the age of 17.[58] He said that, at the age of 18, he had a relationship which lasted for two years until his partner was unfaithful.[59] He said that all his girlfriends were unfaithful, and he started to believe that all women were unfaithful.[60]

61 The respondent was married for 12 years to a woman he met when he was 20 years old and she was 19. They had four children together, three daughters and a son.

62 While they were together, the respondent's wife commenced a relationship with a woman. It seems there was an initial period of separation, during which she left the respondent for that woman. At the sentencing hearing for the respondent's first series of sexual offences, which were committed against his oldest daughter, his counsel said that it was during that period of separation that the respondent first commenced offending against his daughter.[61] However, that appears to be contrary to the evidence, including the respondent's confession at the time, which suggests that the offending commenced earlier, at a time when the girl's mother was babysitting at a relative's home (and her relationship was still ongoing with the respondent).[62] The discrepancy is not important, as it appears that at least some of the offending occurred when the respondent had access to the children on weekends during the period of initial separation.[63] In any event, the respondent and his ex-wife subsequently reconciled for a brief period, but when she became aware of his sexual offending against their oldest daughter, she ended the marriage. The divorce was finalised while the respondent was serving a term of imprisonment for that sexual offending.

63 In his interview with Ms Hasson, the respondent described the end of his marriage as 'catastrophic' and said he was devastated by it.[64] He said that he lost contact with his children.[65] It also appears that part of the adverse impact on him was the fact that his ex-wife had left him for a woman.[66] The respondent told Dr Wojnarowska that it was humiliating his ex-wife had chosen female partners over him.[67]

64 The respondent was then alone for a few years and met his sexual needs by visiting sex workers.[68] During that time, he was in other relationships, but they were not serious or long-term.[69] One of his later victims was the daughter of one of those partners, although the respondent has denied specifically targeting that partner to gain access to her daughter.[70]

65 The respondent is currently in a de facto relationship which has lasted almost 18 years. At the time of the hearing, his partner, Ms K, was 62 years old.[71] The respondent had known Ms K for many years prior to becoming a couple, as he was friends with Ms K's deceased husband. They reconnected when they were working on the same mine site. Although the respondent's relationship with Ms K was previously an intimate relationship, she has indicated that she is not sure whether it will resume on that basis, and she has told the respondent that she will have him back in her home as a companion at this stage.[72]

66 Ms K is aware of the respondent's offending and the present application, and has indicated that she is prepared to be a part of the respondent's supervision and management team, if he is released.[73] She appears to be a prosocial influence, although it has been noted that the respondent was in a relationship with her at the time he committed his most recent offences, and Ms K expressed views questioning the respondent's guilt of some of his offences when she was interviewed for the purposes of the respondent's parole assessment.[74] In terms of ensuring the respondent avoids contact with children, Ms K told Ms Hasson that, even prior to the respondent's incarceration, her children did not visit her and the respondent on their property, which is in a rural location a considerable distance from Perth, and that the respondent will not have access to her granddaughters if he is released.[75]

67 The respondent's time at school was affected by the bullying I referred to earlier. The victimisation by his peers stemmed from ethnic prejudice and included name-calling, frequent assaults and humiliating experiences, both at school and away from school.[76] It resulted in the respondent being in a number of physical altercations while he was in high school.[77]

68 The respondent was an average student overall, but excelled in practical skills,[78] which led ultimately to his occupation as a mechanic.

69 Prior to the respondent's last term of imprisonment, he had had a stable history of employment, having worked since he left school in Year 10, predominately as a mechanic in the mining industry. He has also been self-employed, owning and operating service stations[79] and a bait and tackle shop, which was the location of one of his offences.[80] His employment history is seen to reflect 'a strong work ethic instilled in him by his parents'.[81]

70 The respondent has previously been re-employed following periods in prison, so he is confident of his capacity to gain work in his area of expertise if released.

71 The respondent reported no significant history of alcohol or illicit substance abuse. As will appear later, the opinion of the expert witnesses is that there does not appear to be any association between substance use and the respondent's sexual offending.[82]

72 However, I note that, at the hearing in November 1990 in respect of the respondent's first series of sexual offences, his counsel informed the court that, after the breakdown of the respondent's marriage, he was drinking heavily and using marijuana excessively, which were said not to be his regular or normal lifestyle. His counsel seemed to suggest that his offending occurred in the context of a somewhat self-destructive and maudlin time in his life.[83] On the other hand, when interviewed by Dr Wojnarowska, the respondent said that he drank excessively after his offending against R, as he became depressed, devastated by his actions.[84]

73 Alcohol and illicit substance abuse were not identified as relevant issues in the sentencing proceedings in 1994 or 2013.

74 The respondent has no previous history of major mental illness. Dr Wojnarowska notes that despite the respondent stating that he has had a previous admission to Graylands Hospital, there is no evidence that he has had contact with the psychiatric services in Western Australia.[85]

75 The respondent has said that he has had three suicide attempts in the past in the context of relationship breakdowns and being charged with sexual offending.[86] He has previously been treated with antidepressant medication during his second period of imprisonment.

76 I note that when the respondent was sentenced in 2013, the court was informed of a number of traumatic events in his life as an adult, in particular his involvement in rescue efforts after the Granville train accident and an incident in which he assisted the victim of a road accident, who died while the respondent was attending to him.[87] However, there is no evidence that these events have had an enduring impact that is relevant to the respondent's risk assessment or treatment needs.

77 The respondent has had a number of health issues in the past and continues to suffer from type 2 diabetes and the effects of a hernia, for which he has had surgery. Both matters may have relevance in the present context. For instance, in his interview with Ms Hasson, the respondent referred to his hernia as creating some impediment to masturbation, because it can be painful.[88] Dr Wojnarowska referred to the possibility of type 2 diabetes causing erectile dysfunction.[89] However, as will emerge, neither of those matters affects the final assessment of the respondent's risk of committing a further serious offence. I will return below to what the respondent said about his current sexual drive at the time he was interviewed by Dr Wojnarowska and Ms Hasson.

78 As I mentioned earlier, the respondent spoke to both Dr Wojnarowska and Ms Hasson about the sexual abuse he suffered as a child at the hands of his uncle. He also told both of them about an incident that happened years earlier, when he was in primary school, which he recalled as an abusive episode (and which he had characterised as such as a young child).[90] The incident occurred during a medical examination by a nurse at school which occurred in front of other children. Although this detail was missing from his account to Ms Hasson, the respondent told Dr Wojnarowska that he was the only boy in the room and there were a number of girls.[91] He said that his pants were pulled down in front of the other children. He told Dr Wojnarowska that the nurse touched his testicles.[92] He said he was laughed at and teased by the other children; indeed, he told Ms Hasson the teasing continued for years. The respondent told Ms Hasson that he wanted his parents to take action in relation to that incident, but they refused, believing that medical professionals were above reproach.[93]

79 While the incident was perceived by the respondent as having a sexual character, he said he experienced it as abuse, as I noted earlier, and clearly it was traumatic for him, beyond the short-lived nature of the incident. While it may be regarded as part of his history of sexual development, it does not appear to have any relevance to his sexual offending against girls under the age of 16 years, including girls who were under the age of 13 years, all of which, in any event, occurred in private.

80 The sexual abuse by the respondent's uncle, on the other hand, is relevant.

81 The respondent told Dr Wojnarowska that he was raped and indecently assaulted on numerous occasions by his maternal uncle over a period of 3 years.[94] However, he told Ms Hasson that the abuse occurred over a period of 3 months, commencing when he was aged 7 or 8 years old. His recollection when he described the incident to Ms Hasson was of his uncle 'rubbing himself against [the respondent].'[95]

82 The respondent told both Dr Wojnarowska and Ms Hasson that he reported the abuse by his uncle to his parents, but that they did not go to the police.[96] I have referred earlier to the respondent's grievance in that regard, as described by him to Ms Hasson.

83 The respondent also told Dr Wojnarowska that, at the age of 12, he received the 'sex talk' from his friend's mother, while with her sons. He also said that she taught him how to masturbate when she was alone with him.[97]

84 The respondent said that he was exposed to his father's pornographic magazines as a child. He admitted viewing pornography as an adult in the past, but denied ever watching child pornography.[98]

85 The respondent became sexually interested in similar aged girls in his mid-teens and had a series of relationships as described above.

86 The respondent told Dr Wojnarowska that his sexual drive has always been in the average range.[99] However, he told Ms Hasson that he experienced sexual dysfunction around the age of 27, during his first marriage, and that it had placed a strain on the relationship.[100] He told Ms Hasson that he considered his current level of sexual drive (i.e. as at the time of the interview) to be normal for a man of his age and circumstances.[101]

87 The respondent told Dr Wojnarowska that he had never been unfaithful to his partners.[102] However, that needs to be assessed against the fact that his sexual offending occurred while he was in relationships. He told Dr Wojnarowska that he previously thought that women were 'manipulative, deceitful and could not be trusted', but that he has modified his views since he met his current partner.[103]

88 Ms Hasson noted that there was no clear indication that, as at the time of the interview, the respondent engaged in sexual fantasy or masturbated more frequently when he was feeling stressed or experiencing low mood, so 'sexual activity [did] not appear to be a maladaptive coping mechanism to self-soothe or ameliorate dysphoric emotions'.[104] However, Ms Hasson was of the view that there is some evidence historically that this may have been an issue related to the respondent's offending.[105]

89 In terms of deviancy, Ms Hasson noted that the respondent acknowledged that 'exhibitionism and showing his penis to others is thrilling and exciting for him as he likes to see the look of shock and surprise on the faces of those he exposes himself [to]'.[106]

90 During his interview with Ms Hasson, the respondent denied a specific sexual interest in children, claiming he had never fantasised about children. During his interview with Dr Wojnarowska, he hesitated when asked whether he thought he was a paedophile, eventually saying that 'although his actions could suggest that he was, he knew that his primary sexual interest was of adult women'.[107] I note that, as the respondent did not give evidence in these proceedings, his denial of (or hesitation in admitting) a sexual interest in children must be assessed against his history of offending, to which I will turn shortly.

91 The respondent told both Ms Hasson and Dr Wojnarowska that, as at the time of his interviews, he rarely masturbated and, when he did so, he fantasised about his current partner.[108]

92 The respondent's criminal history consists predominantly of his sexual offending, although he also has convictions for some relatively minor traffic offences, which occurred from 1985 to 2000 in Western Australia, South Australia and New South Wales, and for an offence of possessing an unlicensed firearm in Western Australia in December 1990, for which he was fined $50.

93 Although the respondent's offending against female children, involving serious sexual offences, commenced in 1990, he has an earlier conviction, in 1986, of 'wilful exposure', which, as will appear later in these reasons, was an instance of respondent's long-standing sexual deviance of exhibitionism, which is relevant to the assessment of his risk of committing further sexual offences against female children.

94 The respondent was convicted of the offence of wilful exposure on 6 October 1986. That was his first criminal conviction. He was fined $200 and placed on a good behaviour bond for 12 months.[109]

95 The facts referred to in the Chronology of Sexual Offending in the BOM in respect of this offence simply state that the respondent was driving in Palmyra and initially drove past the complainant. He then stopped his vehicle and exposed his genitals to the complainant by lying on his back and spreading his legs.[110] The age and gender of the complainant are not stated in the available materials. When the respondent was sentenced in 1990 for subsequent offences, his counsel informed the court that the respondent claimed the exposure occurred accidentally, while he was fixing a car. Nevertheless, the magistrate convicted him after trial.

96 Notwithstanding the respondent's claim at the time, he has subsequently admitted that he has had a problem with exhibitionism for a long time.

Offences committed between 4 April 1990 to 30 June 1990

97 On 9 November 1990, in the District Court, the respondent was convicted, on his pleas of guilty, of 10 sexual offences committed against his oldest daughter, R, who was 9 years old at the time of the offences.[111] The offences consisted of four counts of aggravated sexual assault of a child under the age of 16 years, four counts of aggravated indecent assault of a child under the age of 16 years and two counts of procuring a child under the age of 16 years to indecently deal with him. He committed the offences between 4 April 1990 and 30 June 1990. The counts on the indictment were said to be representative of the respondent's persistent sexual abuse of R.

98 Most of the offending occurred when the respondent's ex-wife was babysitting at another home or when the respondent had access to the children on the weekends during a period when he was separated from his ex-wife, and he was alone with the children. However, on other occasions, when the respondent's ex-wife was home, he would manipulate circumstances to be alone with R, including outside their house at the bins.

99 The first four counts were for offences of aggravated sexual assault. The first two counts involved the respondent calling R into his bedroom in the evening while the other children were in the bath. On the first occasion, with the door closed, he made R perform oral sex on him by placing his hand on her head and pushing his penis in and out of her mouth. On the second occasion, he did the same thing, although it seems the door was open on that occasion. The third count related to an occasion when the respondent's ex-wife was home and he asked R to take rubbish out the back of the house. He followed her, put his penis in her mouth, and told her to suck it, making her perform oral sex on him by pushing on her head. The fourth count related to an incident when the respondent was in the bathroom, having come out of the shower, and was wearing a robe. R came in to cuddle him and he again made her perform oral sex on him.

100 The next four counts were for offences of aggravated indecent assault. The fifth count consisted of the respondent calling R into his bedroom, putting her on the bed and biting her in the area of her vagina. Counts 6 to 8 consisted of incidents in which the respondent rubbed R on her genitals. The prosecution proceeded, in respect of these offences, on the basis that the rubbing was on the outside of R's underpants.[112] It seems the offences occurred both inside the house and outside at the bins.

101 The last two counts, being offences of procuring R to indecently deal with him, consisted of the respondent exposing his penis and having R masturbate him. The first of those offences occurred in the kitchen of the family home, while the respondent's ex-wife was watching television in the living room and the other children were in bed. The last count occurred at the bins, and the respondent had R masturbate him until he ejaculated.

102 The offending came to light when R wrote a note to her mother, who reported the matter to the police. After some initial hesitancy, the respondent admitted the offending to the police.

103 The respondent was sentenced on 9 November 1990 in the Supreme Court to a total effective sentence of 3 years' imprisonment. He was released on parole on 3 October 1991, after serving approximately 11 months in prison.[113]

104 On 8 February 1994, the respondent was convicted in the District Court, on his plea of guilty, of a single count of indecently dealing with a child under the age of 13 years.[114]

105 The offending occurred on 24 September 1993 in the respondent's bait and tackle shop. He had been in the community for almost two years since his release on parole. However, as will appear below, the respondent had committed other sexual offences against another victim during that period, for which he was charged in 2011 and eventually dealt with in 2013.

106 The victim in this instance, DP, was an 11-year-old girl who was known to the respondent. He was friends with her mother. On 24 September 1993, as DP was walking past the respondent's shop, on her way to another shop, he called out to her to come into the shop and asked to read the newspaper she had just bought. Having left the newspaper with the respondent, DP went to the other shop and then returned to the respondent's shop alone. She sat on his lap. As she did so, the respondent placed his hand between her legs and rubbed her vagina over her pants. The respondent subsequently grabbed DP's hand and placed it on his groin area, squeezing her hand to stimulate himself. DP was frightened and deliberately dropped a lolly bag so she could climb off the respondent's knee and get away. She then left the shop and told her mother what had happened.

107 The respondent was sentenced to 18 months' imprisonment with parole eligibility. The sentencing judge requested that the respondent receive treatment and counselling from the Sex Offenders Treatment team during his imprisonment.[115]

108 The respondent was released on parole on 29 July 1994.[116]

The respondent's participation in the Community Based Sex Offender Treatment Program

109 The respondent was interviewed by a psychologist at the Sex Offender Treatment Branch, Ms Zuin, on 1 March 1994. He was assessed to be in need of treatment and to be suitable for the Sex Offender Treatment Programme (SOTP) at Karnet Prison.[117] The plan was that the respondent would complete that programme and then follow on and complete the Community Based Sex Offender Treatment Program (CBSOTP).[118] However, he was not able to be transferred to Karnet Prison in time for him to complete the SOTP before his release from prison.[119] In those circumstances, another psychologist, Mr Wehner, subsequently supported the respondent's release on parole, after an interview on 12 July 1994, on condition that he attend the CBSOTP[120].

110 Accordingly, after he was released on parole, the respondent participated in the CBSOTP from 4 August 1994 until the termination of his parole order on 19 January 1995.[121]

111 I note that, in her report of 8 March 1994, Ms Zuin observed that, while the respondent accepted responsibility for his offending, he tended to minimise the extent of his behaviour, displaying cognitive distortion and a degree of immaturity in respect of the offending. Further, although the respondent had expressed a willingness to take part in the SOTP, his scores on psychological testing indicated that he was dishonest about sexually deviant interests and was not motivated towards treatment.[122]

112 On the other hand, in his report of 14 July 1994, Mr Wehner was of the view that the respondent generally had good insight into the nature of his sexual deviancy and positive motivation to engage in treatment.

113 The post‑treatment report, by another psychologist in the Sex Offender Treatment Unit, Ms Cull, recorded that, by the time the parole order expired, the respondent had completed all modules of the programme except for Relapse Prevention.[123] Further, due to the early termination of the programme, the respondent did not complete the post‑treatment test.[124] Ms Hasson has noted that the respondent would have completed modules in Anger Management, Victim Empathy and Human Relationships and Sexuality.[125]

114 The respondent initially sought permission to continue with the programme voluntarily to complete all the modules, but his work commitments interfered with his intention to do so.[126]

115 The post‑treatment report noted that the respondent participated well in the programme despite some disruptive challenges to group facilitators and some 'inappropriate testing of their professional boundaries'.[127]

116 The respondent expressed positive views about the CBSOTP to Ms Hasson.[128] However, he told Dr Bannister that he had not made any treatment gains from participating in that programme and that he was 'thrown out' by the facilitator after completing just over half of it, which he said angered him. As Dr Bannister pointed out, that is contrary to the objective evidence that the respondent completed a majority of the programme.[129] Dr Wojnarowska noted in her report that the respondent could not recall what he learnt in the CBSOTP.[130]

117 No specific treatment gains were identified in the post-treatment report. Given the respondent's varied and inconsistent accounts about the CBSOTP, it is questionable whether he made any significant gains. History indicates that any gains were not enduring, in any event, given his later offending. Indeed, one of the subsequent offences occurred within a year or two of the end of the parole order. It is unfortunate, however, that he did not complete the module which, by its name, would appear to have been of particular significance to preventing relapse.

118 The last series of sexual offences of which the respondent was convicted occurred from 1992 to 2011. On 22 February 2013, he was convicted in the District Court, on his pleas of guilty, of 14 sexual offences committed by him against 6 victims during that period. The offences have been referred to in these proceedings as the 'index offences', in that they were the offences for which the respondent was serving a sentence of imprisonment at the time this application was commenced, and which provided the foundation for the application.

119 The respondent was originally charged with 22 offences, but, on the date of the pre-recording of the evidence of the youngest victim, and after negotiations with the State, he pleaded guilty to 14 counts on a new indictment, the State agreeing to discontinue the balance of the charges. In summary, the charges of which the respondent was convicted consisted of eight counts of indecently dealing with a child under the age of 13 years, one count of sexually penetrating a child under the age of 13 years, 3 counts 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 indecently dealing with a child who he knew to be his lineal relative. The victims were another of the respondent's daughters, the daughter of a de facto partner, friends of the respondent's daughter, and the daughter of a friend of the respondent.

120 The first two counts (indecently dealing with a child under the age of 13 years) occurred on dates unknown between 13 August 1992 and 15 August 1993 when the respondent was either 33 or 34 years old. Notably, the offences were committed before the offences against DP, which occurred on 24 September 1993. Potentially, they were significantly closer in time to when he was released on parole after his first sentence. The offences were committed against the victim RK, who was aged between 9 and 11 years. She was the daughter of his de facto partner at the time. Count one was in respect of an incident that occurred when the respondent took RK fishing on the bank of a river. He exposed his penis to RK and asked her if she wanted to lick it. She refused to do so. The respondent told her not to tell her mother, as she would not be believed. Count two occurred on another fishing trip, this time on the respondent's boat. The respondent again exposed his penis to RK and told her to hold it, which she did for a short time. Again, the respondent told the victim not to tell her mother as she would not be believed.

121 Counts 3 to 5 were offences that occurred on dates unknown between 31 December 1994 and 1 March 1997 when the respondent was 36 to 38 years old. He committed the offences against NF, who was aged 12 and was the daughter of one of the respondent's friends. In respect of count 3 (indecently dealing with a child under the age of 13 years), NF was in the lounge room of the respondent's home. The respondent walked past her and exposed his penis to her, by pulling his shorts aside. This count was representative of regular instances of similar offending. Counts 4 and 5 related to an occasion when the respondent took the victim fishing on his boat. He anchored the boat on the river and exposed his penis to the victim, telling her to touch it and suck it. The victim refused, but the respondent took her hand and placed it on his penis. That conduct was the subject of count 4 (indecently dealing with a child under the age of 13 years). After a short time, NF pulled her hand away. In respect of count 5 (sexual penetration of a child under the age of 13 years), the respondent then placed his hand down NF's pants, touched her on the vagina and penetrated her vagina with his finger. She asked him to stop and to take her home, which he did. She did not tell her parents but called the Kids Helpline.

122 Counts 6 to 8, all of which were offences of indecently dealing with a child of or over the age of 13 years and under the age of 16 years, occurred on unknown dates between 31 January 1997 and 1 January 1999 when the respondent was aged 38 to 40 years old. The victim, BG, who was 14 years old, was a friend of the respondent's second-oldest daughter, K. The respondent had gotten to know BG when she stayed over at his home with K. He met BG's parents and chatted with them when BG's mother said she wanted to meet the respondent if BG was going to stay over on other occasions. The respondent created an employment opportunity for BG in his delivery business and suggested that she stay at his house, as they would sometimes have to start early. He had managed to gain the confidence of BG's parents sufficiently at that stage that they agreed to the arrangement.

123 Count 6 related to an incident that occurred about a week after BG had started working with the respondent. They had finished deliveries for the day and were heading home in the respondent's truck. While they were both seated in the vehicle, the respondent asked BG to rub his groin as he had pain there. BG leant over and began to rub the inside of the respondent's leg. The respondent then grabbed her hand and placed it on his testicles underneath his shorts. He was not wearing underwear. She tried to remove her hand, but he held it there and caused her hand to squeeze his testicles. He kept her hand there for a number of minutes. When BG eventually took her hand away, the respondent told her she could keep going, if she wanted to. She said she did not want to.

124 Count 7 related to another occasion in the same truck when the respondent again asked BG to rub his leg, which he said was sore. As she did so, he again put her hand on his testicles underneath his shorts. Again he was not wearing underwear. A short time later, the victim pulled her hand away. Count 8 related to another occasion when the respondent and BG were sitting in the respondent's truck and he told her to rub his groin because it was sore. BG said she did not want to. The respondent yelled at her, saying she had to help him out. The yelling frightened her, so she rubbed his thigh. Again the respondent grabbed her hand and placed it on his testicles under his shorts. Again he was not wearing underwear. She tried to remove her hand, but the respondent kept placing her hand there. Eventually she was able to remove her hand, and she refused his invitation to keep going.

125 BG said in her statement that she did not tell the respondent's daughters about the first incident, because she did not think they would believe her,[131] and she did not tell her parents about any of the incidents because she was scared of how they would react.[132] She said that she complied with the respondent's demands because she was frightened of not being paid by the respondent or losing her job. She also described that, from an early stage when she was staying at the respondent's home, he would walk around with only a towel on or naked, and would remove his shorts in the presence of his daughters and BG. She also described an occasion when the respondent purported to assist her with back pain, when he came into the bathroom naked while she was naked in the shower.

126 Counts 9 and 10, which were offences of indecently dealing with a child under the age of 13 years, occurred on unknown dates between 31 December 1998 and 6 June 2000 when the respondent was either 40 or 41 years old. He committed the offences against CF, the sister of NF, and, therefore, also daughter of one of the respondent's friends. She was 12 years old at the time. Count 9 occurred when the CF was sleeping at the respondent's house overnight with her brother. She woke up to find the respondent's penis exposed and pushed into her face. She pushed him away and he left. Count 10 occurred on a different occasion, when CF was at the respondent's house helping her father repair his truck. The respondent caught CF removing money from her father's wallet and told her, 'If you don't touch, it I will tell your dad.'[133] The respondent then took CF's hand and placed it under his shorts on his penis. CF then pulled her hand away and left the house.

127 Counts 11 and 12 were offences of indecently dealing with a child who the respondent knew to be his lineal relative. He committed the offences on dates unknown between 31 December 1998 and 1 January 2000 against the youngest of his daughters, E, who was 16 to 17 years old at the time. The respondent 40 or 41 years old. In relation to count 11, E was lying on her bed watching a movie with the respondent, when he placed his hand on her genital area over her clothing and rubbed her vagina. E moved away and asked him why he was doing that. The respondent said, 'I don't know what's come over me, I haven't done that for a long time.'[134] The victim told him not to do it again. Count 12 related to a different occasion when E had friends sleeping over and, therefore, was sleeping in the respondent's bed with him. During the night, the respondent placed his hand under her knickers and rubbed her on the vagina. She pushed him away and left the room.

128 The respondent was interviewed by police in relation to counts 1, 2, 6 and 7 on 30 March 2011. He denied all of those offences.

129 Less than two weeks after that interview, between 7 and 11 April 2011, the respondent committed counts 13 and 14, being two counts of indecently dealing with a child under the age of 13 years. The respondent was aged 52 years, and the victim, GB, was aged 10 years old. The respondent was a friend of the GB's parents and, at the relevant time, he was staying at their house, sleeping on a sofa in the lounge. Count 13 occurred when GB got up in the night to go to the toilet and walked past the respondent. He called out to her and then pulled out his penis as she approached. He told her to touch it. GB put both of her hands on his penis, until he removed them after a short time and she went back to bed. Count 14 occurred the following morning. GB was getting dressed in her bedroom with her older sister. The respondent entered the room while GB was naked and touched her bottom. He then sat on the bed and watched her get dressed. GB's older sister told the respondent to leave, but he did not leave until the victim had finished dressing.

130 The respondent was again interviewed by the police on 26 August 2011. Again he denied all of the offences.

131 The respondent was charged in respect of the offences I have outlined above on 14 September 2011, although, as I noted earlier, at that stage there were additional charges that were subsequently discontinued.

132 Having pleaded guilty on 22 February 2013, the respondent was sentenced on 26 April 2013 by Bowden DCJ. His Honour imposed individual sentences for the 14 counts ranging from 12 months' imprisonment to 24 months' imprisonment. His Honour ordered that the sentences for four of the counts were to be served cumulatively upon each other. The balance of the sentences were ordered to be served concurrently. This resulted in a total effective sentence of 7 years' imprisonment. His Honour also ordered that the respondent be eligible for parole.[135]

133 In sentencing the respondent, Bowden DCJ noted that the reports that had been obtained, which included a psychological report, spoke about the respondent's lack of ability to think beyond the present and to consider the consequences of his actions, as well as the fact that he was prone to undertake risky behaviour and behave irresponsibly. His Honour noted that the reports also referred to the respondent's lack of insight and the fact that his previous participation in a treatment programme had not curtailed his offending. A connection between the respondent's offending and his own sexual abuse had also been noted. Other factors that had been identified as contributing to his offending included unmet sexual and emotional needs, poor social skills, poor interpersonal boundaries, poor emotional regulation and impulsivity. His Honour noted that the respondent was considered to be a moderate to high risk of re-offending if untreated. The respondent was considered to be paedophilic in his behaviour, with distorted attitudes towards his victims, including a lack of empathy and understanding of the effects of his abuse on children.[136] His Honour noted that it had been assessed in the reports that the respondent should be closely monitored on release and should never have unsupervised contact with minors.[137]

134 Whilst in prison since he was sentenced in 2013, the respondent has exhibited good behaviour. He has not been subject to any prison charges, and the Individual Management Plans prepared in April 2018 and June 2019 stated he had not come to the attention of unit staff for any adverse reasons. Indeed they recorded that the respondent 'abides by the unit rules and routines and appears to interact appropriately with staff and his peers'.[138] He has never returned a positive test result for illicit substances. In short, he has not posed any management issues.[139]

135 It also appears he has been in regular employment within the prison, which has included employment as a senior worker in a mechanical workshop and as a cook. The respondent's supervisor in the mechanical workshop reported that he was a good worker 'who is punctual and regular in attendance, is respectful towards staff and appears to get on well with his fellow workers.'[140]

136 I note that the Parole Review Report from February 2018 recorded that the respondent had been approved for and completed 13 'external activities',[141] although the activities are not described, so it is not possible to draw any conclusions from that information about where the activities were undertaken or the extent to which they required management of his risk of reoffending.

137 I will deal separately, below, with the respondent's participation in treatment programmes while he has been in prison since he was sentenced in 2013.

138 Although the respondent was made eligible for parole, he was denied release on parole on 7 March 2018.

139 The Parole Assessment, dated 14 February 2018,[142] which was prepared by an SCCO, Ms Dabala, noted that the respondent has previously demonstrated his ability to comply with the requirements on parole. The materials in the BOM indicate that, while the respondent reoffended on each occasion after his first two sentences of imprisonment, none of the offending was alleged to have occurred while he was on parole. I note that count 3 for which the respondent was sentenced on 26 April 2013 was particularised as having been committed on a date unknown between 31 December 1994 and 1 January 1996. That meant that potentially the offence was committed while the respondent was on parole after his second sentence of imprisonment, from which he was released on 29 July 1994, but that was not alleged at the time of sentencing, and is not alleged in these proceedings. Moreover, the respondent was recorded by the Department of Justice as having completed parole satisfactorily on each occasion he was released on parole, being on 3 October 1991 and 29 July 1994.[143] I will proceed on that basis.

140 Ms Dabala also noted that the respondent had completed the Intensive Sex Offenders Treatment Program (ISOTP) in 2015, which I will discuss below. However, despite being able to identify a number of risk factors, there were indications that the respondent blamed the victims for his offending. He also denied being aroused at the time of the offences or by young females. Ms Dabala thought that it was of some concern that the respondent did not appear to have retained what he had learned in the programme a little over two years earlier.

141 In addition, it was proposed that the respondent would live with his long-term partner, Ms K, on their rural property, if released on parole. Ms Dabala spoke with Ms K and recorded the following in respect of Ms K's views about the respondent's offending:[144]

She stated she was surprised at the current offences and believed 'something was wrong' and when asked to clarify this she said she thought it 'was a bit of a set up' between the victims and did not believe he had committed the offences. Ms [K] said 'if' he was guilty of the offence is she hoped he had learned his lesson. She added she would not hesitate to contact police if "he put one foot out of place".

142 Ms Dabala noted that such an attitude was not perceived to be protective of the community and any potential victims.

143 In light of these matters and the fact that previous periods of imprisonment had not had a deterrent effect, Ms Dabala did not support the respondent's release on parole.

Respondent's sexual offending ‑ propensity and pattern

144 As I said earlier, the questions of whether the respondent has a propensity to commit a serious offence in the future and whether there is a pattern to his offending are informed by his antecedents, in particular his past offending, and by the assessments that have been made by the experts who have assessed his risk of reoffending.

145 In respect of its use in the DSO Act, the word 'propensity' was taken to have its ordinary meaning in the context of the criminal law. Its use in the HRSO Act is in precisely the same context, so the same principles are applicable. What is meant by 'propensity' in this context was encapsulated by Murray AJA in GTR:[145]

[Propensity] means that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his make up or personality which may or may not be of a quality of a diagnosable mental illness or personality disorder.

146 Even before one considers the expert opinions in this case, the respondent's history of sexual offending provides strong evidence that he has a propensity to commit sexual offences against girls who are under the age of 16 years, including prepubescent girls. He has sexually abused eight girls over a period of 21 years. Even if the offences consisted of manipulation of vulnerable victims for his own sexual gratification, without any sexual attraction to the victims, the respondent's propensity to commit such offences renders him a serious danger to the community, given the significant potential harm to such victims and others, as identified by Bowden DCJ. However, the circumstances of the respondent's offending in a number of instances indicate that he does have a sexual interest in girls under the age of 16 years, including prepubescent girls, despite his denials of such interest. In relation to R (his daughter, who was 9 years old), DP (11 years old), NF (12 years old) and GB (10 years old), he touched or rubbed their genitals or bottom, which suggests a sexual interest in the child in each case. In relation to GB, he entered the bedroom where she was getting changed, while she was naked. Having touched her on her bottom, he then watched her get dressed.

147 The inclination or tendency I have identified, both in respect of the ages of the respondent's victims and his sexual interest in prepubescent and underage adolescent girls, is an identifiable characteristic of the respondent's offending. As Murray AJA said in GTR, it matters not whether that characteristic has the quality of a diagnosable mental illness or personality disorder. However, as will appear later in these reasons, both Dr Wojnarowska and Ms Hasson diagnosed the respondent with paedophilia[146] and exhibitionism.[147] The first of those diagnoses underscores the finding I have made in respect of the respondent's sexual interest in prepubescent and underage adolescent girls and is considered to be causally linked to the respondent's sexual offending.[148]

148 Based on the respondent's history of offending and the diagnosis of paedophilia, I am satisfied, therefore, that the respondent has a propensity to commit serious sexual offences against girls under the age of 16 years.

149 The extent of the risk that the respondent will act on that propensity at this point in time and in the future is informed by the assessments that have been made by Dr Wojnarowska and Ms Hasson, considered with the information from Ms Comery and Dr Bannister concerning the respondent's progress in treatment and other evidence of the attitudes evinced since his most recent incarceration.

150 Of course, to identify the respondent's propensity in respect of girls under the age of 16 years is not to diminish the significance of his offending against his daughter E, who was 16 or 17 years old at the time of his offending against her. That offending also included touching E on her vagina, which find to be evidence of his sexual attraction towards her. That offending is an example of two of the patterns of his offending, namely that he does not observe familial boundaries and he takes advantage of his victim's emotional connection or sense of obligation. Sexual offences against a lineal relative or de facto child who is under the age of 18 years are also serious offences for the purposes of the HRSO Act.[149]

151 The most obvious pattern to the respondent's sexual offending has been that his victims have been children who are known to him and to whom he has had access through family or friends. The offender has not offended against strangers in public places. When asked in cross‑examination whether she agreed that the respondent is unlikely to seek out a child, Ms Hasson noted that the respondent has not had to seek out a child, because children have always been present around him.[150] Dr Wojnarowska noted that the respondent is not likely to seek children on the street but, if the opportunity for grooming arises, he is likely to engage in such conduct.[151]

152 That identifies another pattern in the respondent's offending. Most of his offending involved grooming of the victim. Whether it was in the family context, or in relation to friends of his daughters, or such a friend who had become an employee, or the daughters of his friends, there were elements of emotional grooming, the building of familiarity and confidence, including through activities such as going fishing, and even the enticement of paid employment, in the case of BG. The grooming extended to building confidence in the parent or parents of the child, and the offending involved a betrayal of trust. In some instances, in particular in respect of BG and CF, the respondent's conduct can be described as involving psychological coercion of his victim.

153 The pattern in most instances was that the respondent would create situations in which he could be alone with the victim, but there were some occasions when his offending was brazen, for instance when he sexually abused R in the kitchen while her mother was watching television in the living room.

154 As I have mentioned above, the respondent has undertaken two sex offender treatment programmes. He has also undertaken a cognitive skills programme during his most recent incarceration.

155 At [113] to [117] above, I have discussed the respondent's participation in the CBSOTP in 1994, while he was on parole in respect of the offence against DP. As I noted earlier, the respondent did not complete the programme, through no fault of his own, missing out on the module that would appear to be key to relapse prevention.

156 In any event, the respondent's participation in that programme did not prevent him from going on to commit further offences.

Consideration of treatment needs after index offending

157 Prior to the respondent being sentenced for the index offences in 2013, his treatment needs were again assessed and the psychological report prepared for those proceedings recommended further sex offender treatment.[152]

158 After commencing his sentence, the respondent was assessed for specific programmes in custody to address his criminogenic factors. He took part in the following programmes.

159 The respondent participated in the Cognitive Skills Think First Program (the Think First Program) from 15 September 2014 to 10 December 2014. It is a 60‑hour programme designed to teach cognitive skills, consequential thinking relating to offending behaviour and problem solving in a group setting. He attended 29 of the 30 sessions offered. It is not clear why he was absent from one of the sessions.[153]

160 The Think First Program Completion Report (Think First Report) noted that there was 'some discrepancy' between the respondent's criminal history and the account he gave to facilitators about his offending history. While he accepted culpability for some offences, he denied his involvement in others.[154] He also minimised his offending and suggested that he was approached by the victims and they started the physical contact, which he then allowed to continue.[155] He described himself as 'just a flasher'.[156] The respondent told the facilitators that he experienced high levels of stress prior to the offending behaviour and felt mentally unstable, describing himself as 'stuffed'.[157] The respondent considered that his relationship with his ex-wife was devoid of physical intimacy and affection, and that may have been a trigger for him seeking affection from his victims.[158] The facilitators considered that this may indicate that the respondent had a propensity to cope with stress in an inappropriate manner, and that exploring alternative coping measures, as well as victim empathy, could assist the respondent to reduce his risk of reoffending.[159] The facilitators also considered that the circumstances of the respondent's offending appeared to be 'situational' and the offending, opportunistic, impulsive and lacking in consequential thinking.[160] While those descriptions may be apt in respect of much of the offending, they are prone to obscure the fact that the opportunities arose largely as a result of grooming and, at times, manipulation of the circumstances.

161 The Think First Report noted that the respondent was initially concerned about discussing his sexual offending behaviour within the prison environment and amongst offenders, but subsequently, through dialogue with the facilitators, there was a notable shift and he became one of the more outspoken and honest group members.[161]

162 Further, while he initially minimised his offending and shifted blame, as the programme progressed, the respondent 'increasingly relinquished defensiveness around the assignment of blame he associated to victims' and instead started to examine the role of consequential thinking, acknowledging that he had not had consequential thoughts at the time of his offending and that the absence of such thinking had enabled his offending.[162] He was able to reflect on the types of thoughts that may have operated to prevent his offending, such as: 'This situation is not right, I remember how bad it felt for me so it won't be good for her if I let this happen.'[163] While this appears to have been a positive step towards gaining insight, I note that the notion of 'letting this happen' appears to fix on an external locus of control, rather than fully accepting responsibility for his conduct.

163 In any event, the facilitators were of the view that, by the end of the programme, apart from developing an understanding about consequential thinking, the respondent also had begun to develop an understanding of past triggers for his offending, and the likely future triggers.[164]

164 Although the facilitators considered that the respondent had started to alter his attitude towards his offending, they considered that he required further treatment in respect of that factor, along with victim empathy, alternative coping strategies and emotional regulation, all of which required further exploration in a sex offender treatment programme.[165]

165 In his report for these proceedings, Dr Bannister noted that the respondent was able to recall various concepts discussed in the Think First Program, specifically in the modules relating to decision-making, problem-solving and consequential thinking.[166] The respondent told Dr Bannister that the programme has assisted him to 'realise [when is] the right and wrong time to get involved', and gave an example of being able to de-escalate a physical conflict in his unit,[167] although it is not clear that any of the retained knowledge will assist the respondent in the management of his risk of sexual re-offending.

166 The respondent undertook the ISOTP in 2015. The ISOTP is a group programme that targets 'High Risk/High Needs' male offenders, focusing intensively on their sex offending behaviour, victim issues, identifying offence pathways and developing detailed self-management plans to assist in reducing the risk of reoffending.[168]

167 The ISOTP Program Completion Report (ISOTP Report) noted that, based on information provided by the respondent, combined with other information on file, a number of factors had been identified as contributing to the respondent's sexual abuse of children and being suitable targets for treatment.[169] They included a number of attitudinal and cognitive distortions. For instance, he had hostile and negative views about women, which made it difficult for him to form appropriate relationships with adult females. I note that the respondent's beliefs (to which I referred earlier) included that women were deceitful and manipulative. As I have indicated, those were characteristics of the respondent's offending, and it seems to me that his failure to recognise that in his own behaviour has been a serious flaw in his cognition. The facilitators also identified that the respondent had distorted beliefs that were said to be supportive of child abuse, which included emotional identification with children, the belief that children could consent to sex, a sense of sexual entitlement and viewing himself as posing a low risk of reoffending.

168 Other criminogenic factors identified by the facilitators were the respondent's deviant sexual interest, issues with self-regulation, problems with relationships, including a lack of 'empathy/perspective taking skills', poor coping and problem-solving skills, and deficits in his self-esteem.[170]

169 During the ISOTP, it was also noted that the respondent 'expressed a "victim stance" indicative of an external locus of control', whereby he believes that his decisions in life are controlled by environmental factors which he cannot influence, or are controlled by chance or fate.[171] This tends to suggest that the apparent progress the respondent had made in the Think First Program in that regard was superficial or not enduring.

170 The respondent presented with a mistrust of others (including the facilitators and prison staff), which initially had a negative impact on his ability to identify issues pertinent to his offending and led to him adopting a rigid comprehensive non-disclosure approach.[172] However, this appears to have moderated during the programme. Similarly, while the respondent initially displayed domineering behaviour, with an aggressive communication style, which included being critical of others and being defensive,[173] it appears that behaviour 'dissipated somewhat'.[174]

171 The facilitators reported that the respondent was 'adamant he did not want to discuss any aspects of his current offending within the group setting'.[175] Eventually he was able to discuss the precipitating factors for one offence (which appears to be an offence against RK).[176] The ISOTP Report indicates that the respondent told facilitators that he found the victim 'attractive' but had no feelings towards her.[177] Overall, however, it appears the respondent was 'observed to be closed and defensive when [discussing] his sexual issues and sexual offending behaviour'.[178] The respondent attributed his offending to intimacy deficits at the time and claimed that his sexual interest was in adult females.[179] As he did during the Think First Program, he minimised his offending behaviour significantly, often referring to himself as 'just a flasher'.[180] He denied a deviant attraction to prepubescent and pubescent girls.[181]

172 Of particular significance, in my opinion, are the following observations in relation to the discussion during the ISOTP 'aimed to develop an understanding of the long and short-term impact of sexual abuse on victims':[182]

During his participation in this exercise [the respondent] was heard commenting on the positive effects of sexual abuse not being discussed, however he would not raise them when challenged.

173 It is apparent from the ISOTP Report that the progress made by the respondent during the ISOTP was largely in respect of collateral factors that bear upon his risk of reoffending, with little, if any, insight into his sexual deviancy or understanding the impact of his offending on his victims. The facilitators noted that the respondent displayed limited acknowledgement of the impact of his offending on his victims, mainly noting the breach of trust and that victims may become overprotective of their children.[183]

174 The respondent's progress in other respects was summarised as follows:[184]

During treatment [the respondent] was observed to develop greater awareness and understanding of his thoughts, feelings and behaviours and the cognitive structures that underpin his thinking including schema and beliefs. He has become more practiced in identifying and expressing his emotions. He was observed to increase his emotional regulation and adopt self-soothing strategies. He appeared to have increased his skills and knowledge regarding self-regulation. He has identified many of his problematic schema, belief and cognitive distortions; however, he continues to struggle with implementing strategies to challenge them. [The respondent] noted past relationship issues that contributed to his offending noting lack of intimacy, insecure attachment, distrust of others, poor work life balance, neglecting his relationships or forming inappropriate relationships such as with a single mother.

175 When one examines the detail of the 'problematic schema, belief and cognitive distortions' identified by the respondent, they related to:[185]

(1) a constant worry about being abandoned by others;

(2) his sexual abuse (in respect of which the facilitators commented that the respondent had received mixed messages as a child about appropriate and inappropriate behaviour);[186]

(3) mistrust, especially of women, about whom he spoke in derogatory terms (including making sexual jokes about female facilitators);

(4) feelings of defectiveness and shame stemming from childhood experiences, which have led to behaviours indicating a need for a high level of control (including in his relationships);

(5) insufficient self-control and self-discipline, leading to poor boundaries, which the facilitators said was evidenced by his offending; and

(6) various 'cognitive distorted thinking styles pertaining to him', such as 'catastrophizing', 'assumptions', 'black and white' thinking, 'filtering' and 'generalisations'.

176 The last group of 'distorted thinking styles' was not explained further. However, apart from the identification of his own sexual abuse as a relevant factor, the other schema and distortions are not specific to the type of sexual offending in which the respondent has engaged, although identifying them and implementing strategies to deal with them may well reduce the risk that the respondent will act on his sexually deviant interest in female children (which he did not acknowledge during the ISOTP). As the ISOTP Report notes, raising awareness is 'not enough to enact behaviour change'; 'practice and rehearsal of skills is important in internalising change'.[187] It was emphasised that, if the respondent is to achieve the skills and attitudes sought to be instilled in treatment, he must ensure he practises the skills and expresses the attitudes in his daily life outside of treatment.[188]

177 During the programme, the respondent developed a self‑management plan to address the risk factors that had been identified.[189] The facilitators noted that the plan covers a wide range of goals and plans for the future, which they considered to be prosocial in nature and realistic.[190] It included strategies to deal with the problematic schema the respondent had identified. For instance, it referred to: engaging in self‑awareness and self-reflection; acceptance and allowing feelings to pass; having open discussions with his de facto partner; relying on his current relationships to fulfil emotional and sexual needs; and engaging in 'perspective taking' by listening to others.[191] The respondent acknowledged the need to have no unsupervised contact with female children under the age of 16 years, and there was discussion about the respondent placing signage around his workplace, stating that children are to be supervised at all times by their parents, which, it was envisaged, may assist in preventing any unanticipated contact with children in his workplace.[192] The respondent's self-management plan also identified goals relating to work, relaxation and a healthy lifestyle to assist him to maintain a 'good life'. He intended to reconnect with friends and family and continue to earn an income from his own business. He indicated that he intended to build friendships 'based on acceptance and understanding in the community (through honest disclosure about his past and where he has been, prison)'.[193]

178 A significant part of the respondent's plan was to continue his relationship with Ms K, which the facilitators understood to be a long‑term stable relationship. The respondent described the relationship as loving and loyal, and as 'having intimacy and providing sexual outlets'.[194] He also generally described Ms K in positive terms, including the fact that she was able to contribute financially to the relationship. However, the ISOTP Report notes that the respondent also made unflattering comments about Ms K.[195] I am inclined to regard those comments as a manifestation of an obnoxious aspect of the respondent's personality, and an intrusion of his general misogyny into his thinking about a woman who he has acknowledged to be loyal and about whom he has otherwise spoken in affectionate terms. On balance, I accept that the respondent views his relationship with Ms K as a positive foundation for a life after incarceration. The facilitators of the ISOTP noted that, compared to earlier times, the period during which the respondent had been in a relationship with Ms K in the community had involved a relative hiatus in his sexual offending,[196] the only offences being those against GB, which it appears the respondent denied, despite his pleas of guilty.

179 While the respondent's goals and the means to achieve them, forged in the context of a treatment programme, were laudable, it remains to be seen whether they have endured. In particular, the respondent's aspiration for acceptance and understanding in the community through honest disclosure now needs to be assessed in light of negative views he has expressed about the DSO Act scheme and these proceedings, to which I will return.

180 The facilitators of the ISOTP concluded that the respondent's gains are in the early stages, and that he will require continued monitoring and support to reinforce what he has learned. They recognised that his plans may require adjustment, given that the respondent was still two years away from consideration of parole. At the time of the hearing in these proceedings, approximately four and a half years had passed since the respondent completed the ISOTP.

181 In her report for these proceedings, Ms Hasson found that the respondent's attitude towards the ISOTP was much more contrary than the ISOTP Report would suggest. There was one facilitator in respect of whom he held 'quite sort of negative and hostile views'.[197] He did not like many of the scenarios in which he participated, and he indicated to Ms Hasson that he thought that part of the ISOTP report had been written about somebody else, and that it was not applicable to him.[198] However, Ms Hasson noted that, overall, despite being quite negative about certain aspects of the ISOTP, the respondent accepted that he had gained some insights, and appeared to have retained an ability to recall much of the programme content.[199]

182 Dr Bannister also noted that the respondent reported having had a conflict with one of the facilitators, and that the respondent thought the facilitator's opinion towards him was 'almost like it was vindictive.'[200] The respondent told Dr Bannister that he recalled having disagreements with the facilitators about the extent to which he acknowledged aspects of his offending, 'disputing their position about the degree of responsibility he took in this regard'.[201] The particular context appears to have been that the respondent was of the view that the extent to which he admitted specific elements of his offending would make little difference, as he had already been sentenced for the offending.[202] However, despite those frustrations, the respondent told Dr Bannister that he responded positively to the section of the programme dealing with 'thinking errors' and felt he had significantly improved in that regard.[203] He told Dr Bannister that he had learnt to behave in a way that would reduce the likelihood of him being accused of inappropriate or illegal behaviour.[204]

183 The respondent told Dr Wojnarowska that the ISOTP had taught him what situations he should be avoiding, and not to 'catastrophize'.[205] She noted that he struggled to provide specific examples to her, saying that he had never looked for victims, and that things just happened. He agreed that he had always been impulsive, and that would be something he would need to work on.[206] He told Dr Wojnarowska there were times when he restrained himself from progressing his offending to sexual intercourse, and he felt that this was an example of him being able to contain his impulses.[207] He identified that he had learnt that depression and fear of loss were triggers for him.[208]

184 The respondent acknowledged to Dr Wojnarowska that, at times, he could be aggressive and domineering, but said that he was aware of it and making a conscience effort to correct it.[209]

Psychiatric and psychological evidence General observations

185 As indicated earlier in these reasons, the respondent was ordered at the preliminary hearing to undergo examinations by two qualified experts,[210] namely, Dr Wojnarowska and Ms Hasson for the purpose of preparing reports as required by s 37 of the DSO Act. The reports are now to be taken into account under s 7(3)(a) of the HRSO Act, having regard to s 74 of that Act.

186 There was no issue taken with the expertise of Dr Wojnarowska or Ms Hasson. Both are skilled and experienced experts in the assessment of risk of sexual recidivism, and their evidence was cogent and credible.

187 The general purpose of expert reports ordered under the DSO Act was to indicate the qualified expert's assessment of the level of risk that, if the 'subject' were not subject to a CDO or supervision order, the subject would commit a serious sexual offence, and to provide the expert's reasons for that assessment.[211] The same general purpose applies under the HRSO Act, except that the assessment is in respect of 'the level of risk that, without a restriction order, the subject will commit a serious offence'. As explained earlier, there is no difference in the practical effect of the provisions in this case.[212]

188 However, the assessment of a person's risk of sexual reoffending cannot be exact. Further, the reports and oral evidence of the qualified experts are part of the broader body of evidence a judge must take into account in arriving, ultimately, at his or her own decision about whether a person is a high risk serious offender.[213]

189 Similarly, in the event a judge finds a person to be a high risk serious offender, it is for the judge alone to determine, on the whole of the evidence, which restriction order is necessary to ensure the adequate protection of the community. Of course, the risk assessments made by the qualified experts may be important in that determination. Those assessments are concerned with the level of risk that the person will commit a serious offence 'without a restriction order'. Arguably, that invites consideration by the expert of the level of risk absent one or other of the two forms of restriction order, and it is common for a qualified expert to be asked what effect the proposed conditions of a supervision order would have on the level of risk. The question is usually put in terms of whether, in the expert's opinion, the risk could be managed adequately if the person were subject to such conditions. That occurred in this case. It is a legitimate enquiry, given that the assessment of risk includes consideration of the steps that could be taken to minimise the risk,[214] and the opinions of the qualified experts will usually inform the conditions that are included in a supervision order to minimise risk. Further, whether a supervision order will ensure adequate protection of the community will depend in part on the imminence of reoffending, which again is a matter upon which the qualified expert is able to give an opinion as part of the risk assessment. However, having taken the opinions of the qualified experts into account, it remains that case that, before a supervision order can be made, the judge must be satisfied to the requisite standard that the respondent will substantially comply with the standard conditions of a supervision order, and, more generally, that such an order will ensure the adequate protection of the community.

190 In making their assessments of the respondent's risk of committing a serious sexual offence (which remains relevant in determining his risk of committing a serious offence for the purposes of the HRSO Act), both Dr Wojnarowska and Ms Hasson had regard to:

(a) the large volume of material in the BOM concerning the respondent's history of offending;

(b) previous psychological and other reports prepared for the respondent's various sentencing proceedings;

(c) the reports from the CBSOTP, the Think First Program and the ISOTP; and

(c) records in respect of the respondent's time in custody.

191 They also had regard to their interviews with the respondent and to the results of administering actuarial instruments and applying clinical guides and clinical judgment during those interviews. Ms Hasson also obtained information by telephone from Ms Comery, Dr Bannister and Ms K. Dr Wojnarowska obtained information by telephone from Ms Comery.

192 Dr Wojnarowska interviewed the respondent once, on 29 May 2020, for three hours. Ms Hasson interviewed the respondent on two occasions (consisting of four sessions) on 4 June 2020 and 5 June 2020 for a total of seven hours.

193 The actuarial instruments used by both experts were the STATIC‑99R and the Hare Psychopathy Checklist-Revised (PCL-R). The STATIC‑99R relies mainly on historical factors (although age is also a factor) to assess the long‑term potential for sexual recidivism among adult male sex offenders. The PCL‑R assesses the extent to which an individual's personality structure conforms to the clinical construct of psychopathy.

194 The structured clinical guide used by both experts was the Risk of Sexual Violence Protocol (RSVP), which requires clinicians to consider a large number of factors, both static and dynamic, which have an impact upon the assessment of risk.

195 The validity of the instruments and clinical guides used by both experts in the assessment of the respondent's risk was not in dispute. Further, although the respondent did not concede that the court should find he is a serious danger to the community under the DSO Act (now a high risk serious offender under the HRSO), he did not dispute the findings made by the experts as a result of applying the instruments and clinical guides, and acknowledged that, on the basis of those findings, it was open to the court to be satisfied that the respondent met the criteria for being a serious danger to the community (now a high risk serious offender). In those circumstances, it is not necessary to go into detail in respect of each of the factors considered by Dr Wojnarowska and Ms Hasson in arriving at their conclusions, although I will outline the key findings.

196 I have set out in detail earlier in these reasons the information provided by the respondent to both Dr Wojnarowska and Ms Hasson in respect of his personal background, his sexual development, his substance use and some aspects of his offending.

197 Both Dr Wojnarowska and Ms Hasson explored with the respondent his recollection and understanding of his offending, as well as his explanation for the offending.

198 When he was interviewed by Dr Wojnarowska, the respondent denied or minimised much of his offending. It is evident he has continued to engage in distorted thinking about his offending. In summary:

(1) he admitted only one occasion on which he offended against his daughter, R (he was convicted of 10 counts);

(2) he admitted no touching offences in respect of NF, CF or E, claiming he was guilty only of indecently exposing himself to them (while one of the indecent dealings against NF involved exposing his penis, the other six counts of which he was convicted in respect of these victims involved him putting the victim's hand on his penis, touching the victim on her vagina and, in the case of NF, digitally penetrating her vagina); and

(3) he denied the truck incidents with BG, instead alleging other sexual behaviour which he said occurred in his bedroom, and in respect of which he minimised his responsibility.

199 In relation to R, the respondent claimed the offending occurred only once, after his ex-wife left him.[215] As I noted earlier, the respondent was sentenced on the factual basis that the offending commenced when his ex-wife was still living at the house, but was out babysitting, although it is possible some of the later offending against R occurred during a period when the respondent was separated from his ex-wife. The respondent's claim that he offended against R only once is contrary to the instructions he gave his counsel at the time of sentencing.[216] The respondent told Dr Wojnarowska that he behaved inappropriately because he thought R loved him. He denied thinking of R in a sexual manner, and said 'he immediately knew it was wrong and was devastated by his actions' and that while in prison he thought about how he destroyed her life.[217] He also claimed that, after committing the offence, he became depressed, drank excessively and attempted suicide. At sentencing his counsel referred to the suicide attempt and informed the court that the respondent had received treatment from a psychiatrist (whose report appears to have been before the court, but was not available for these proceedings), but those events were said to have occurred after the respondent was apprehended (although not because of the apprehension).[218]

200 In relation to the offending against BG, the respondent denied, when speaking with Dr Wojnarowska, that he ever sexually abused her while she was working with him in his truck. He claimed instead that she had touched his penis on three occasions inside his home, in his bedroom, on two occasions coming into his bedroom of her own accord. He said that on one occasion he touched her breast.[219] The respondent's account in respect of BG would appear to be an attempt to distort history to minimise his own responsibility. It echoes statements made by him during the Think First Program, when he suggested that his victims had made the sexual approaches and he had simply allowed them to continue to touch him.

201 Dr Wojnarowska noted that the respondent's account of the offences he committed against RK was largely consistent with the known facts, but he denied telling RK that she would not be believed if she told her mother.[220] He also denied Dr Wojnarowska's suggestion that he entered the relationship with RK's mother because she had a young child.[221]

202 I have referred above to the respondent's account to Dr Wojnarowska in respect of NF, CF and his daughter, E. The respondent specifically denied sexually penetrating NF, despite pleading guilty to that offence.[222]

203 In relation to the offending against GB, which occurred while the respondent was in a relationship with Ms K, the respondent told Dr Wojnarowska that it was an opportunistic act, 'a slip and one-off event that would never occur again.'[223] Dr Wojnarowska said she believed that the offending was indeed opportunistic (describing it as 'highly opportunistic'), accepting the respondent's account that the offence occurred when he visited GB's house and she sat on his lap. Dr Wojnarowska was of the view that the event triggered the respondent's deviant sexual interest in children.[224] The context in which Dr Wojnarowska gave that evidence was when she was considering why the respondent's relationship with Ms K was not a protective factor against offending at that time. The difficulty is that the respondent's account was not consistent with the facts of his offending, as stated at the time he was sentenced,[225] and failed to refer to the fact that there was a second offence the following morning. It will be recalled that the respondent was staying at GB's home at the time (not just visiting). The second offence occurred when the respondent went into the bedroom where GB was getting dressed, touched her bottom while she was naked and then watched her get dressed. In my opinion, it is difficult to regard that offence as opportunistic, in the sense of the respondent taking advantage of an unexpected opportunity, as it involved a deliberate decision to enter a private bedroom where, it can be inferred, he knew there were girls getting dressed, after which he touched GB indecently and then engaged in voyeuristic behaviour by remaining in the room and watching the child as she dressed.

204 The respondent acknowledged the offending against GB did not happen at a time when he was depressed, lonely or frustrated, and said he could not understand 'how it all happened, why [he] did it'.[226] Nevertheless, the respondent's account to Dr Wojnarowska appears to be an attempt to minimise the seriousness of his offending. As noted earlier, it would appear that during the ISOTP, he had denied that the offences had happened at all.

205 However, Dr Wojnarowska noted that the respondent now acknowledged his offending had been deviant and was 'not normal',[227] although he would not acknowledge that he was currently sexually attracted to children.[228] He told Dr Wojnarowska that, in the past, he had not felt his offending was 'that bad', and he had thought that 'seeing someone naked wasn't as bad as rape'.[229] He also said he had not been concerned that he would be caught whilst offending. He denied grooming the victims and said he had never gone 'to look for the girls.'[230]

206 When questioned about the impact of his offending on the victims, the respondent told Dr Wojnarowska that he did not know to what extent they were affected and that he never wanted to hurt the children.[231] At most, he was able to compare their experiences to his own, and suggested his victims would have problems with relationships and trusting others.

207 The respondent told Dr Wojnarowska that he did not fantasise about his victims at any point in time.[232] He denied he was motivated by sexual desire, claiming that he was looking for love and affection, and that he found children less intimidating than adult women.[233] He also said he was not sexually aroused when he committed the offences. As I discussed earlier, I have found otherwise, in light of all of the circumstances of his offending. I note in particular that at least on one occasion, during an offence against R, he ejaculated.

208 Ms Hasson said that, in her interview with the respondent, he acknowledged much of his offending history, with some notable exceptions. He was adamant (despite pleading guilty to the offence) that he did not offend against NF and expressed anger at the allegation that he digitally penetrated her.[234] The respondent also categorically denied any offences against his daughter, E, and said that the only reason he pleaded guilty was so E may be eligible for criminal injuries compensation, as he had been less financially generous towards her, compared to her siblings.[235] In light of the respondent's pleas of guilty, the submissions made on his behalf at the time of sentencing, and the fact that the respondent has not given evidence in these proceedings, I give no weight to those claims.

209 Ms Hasson noted that the respondent did not dispute any of the facts in relation to R, and he expressed considerable regret and remorse for those offences. While that is a commendable shift in his position less than a week after he had claimed to Dr Wojnarowska that there had only been the one offence against R, it highlights the respondent's unreliability as a historian and the need to approach cautiously any assessment of treatment gains related to the respondent's acceptance of responsibility for his offending.

210 Ms Hasson noted that overall there was a tendency by the respondent to be 'matter of fact' in his acknowledgement of his offending, to minimise his actions and displace blame onto the victims, and that he possessed limited victim empathy.[236] He had indicated that he believed he was targeted by police who went 'searching' for victims.[237]

211 Ms Hasson also noted that the respondent denied a sexual interest in children and did not consider himself to be a child sex offender. He denied being sexually aroused during the offending and tended to compare himself to other offenders he considered 'worse' than himself.[238] Ms Hasson noted that the respondent did not acknowledge any history of deviant sexual thoughts or deviant sexual motivation for his behaviour.[239] She noted that this was inconsistent with his attitude recorded in previous reports, where, at times, he has acknowledged such an interest.[240]

The respondent's account of his current sexual interests

212 At [86], [88], [90] and [91] above, I outlined what the respondent said to Dr Wojnarowska and Ms Hasson about his sexual interests and sexual drive as at the time of their interviews with him.

213 In essence, the respondent maintained that his sexual interest was in adult females and that he did not have a sexual interest in female children. However, as I noted at [90] above, when asked by Dr Wojnarowska whether he thought he was a paedophile, the respondent hesitated in his answer before stating that his actions could suggest that, but that he knew his primary sexual interest was in adult women.

214 As for his sexual drive, the respondent considered it to be normal for a man of his age and circumstances, although he said he rarely masturbated in prison. There was some suggestion that his hernia may be an impediment to sexual intercourse with his partner in the future. Dr Wojnarowska did not know whether the respondent's physical health was a factor in his frequency of masturbation, but she did not think that would affect his libido, as libido is about sexual thoughts and desires.[241]

215 As I noted above, Ms Hasson observed that the respondent did not seem to be sexually preoccupied and sexual activity did not appear to be a maladaptive coping mechanism around the time of his interview, although there is some evidence that it may have been a factor contributing to some of his offending. As I indicated in the course of dealing with the respondent's treatment programmes, poor coping was identified as one of a myriad of criminogenic factors contributing to the respondent's sexual offending.

216 Both experts conducted a mental state examination of the respondent and found that he does not suffer from any cognitive impairment.[242]

217 Ms Hasson said that it took time to build rapport with the respondent, and that there 'was certainly ... defensiveness or protectiveness about [him] that he is very worried about how he is perceived and portrayed'.[243] However, she found that after the period of time she spent with the respondent, a good rapport was built.[244] Overall, she found that, apart from not acknowledging any sexual deviance, the respondent was quite open and candid, answered all her questions, was completely appropriate and responded well when she challenged him on things.[245]

218 Dr Wojnarowska said that the respondent engaged well in her interview and that some degree of rapport was established, despite the respondent being challenged over inconsistencies in his account of events.[246] In her opinion, there was nothing to suggest, on the information she had and from the respondent's presentation, that the respondent was antisocial in nature,[247] although in discussing her assessment of his personality traits, she did note that he had some antisocial attitudes.[248] However, she noted that there was evidence of cognitive distortions in his presentation, which will be elaborated upon below.[249]

219 The question of whether the respondent has antisocial attitudes and, if so, how that would impact on whether he would comply with the conditions of a supervision order, if he is found to be a high risk serious offender, is a matter I will return to later. It will be necessary to have regard to views expressed by the respondent to Dr Bannister, and to what Dr Wojnarowska and Ms Hasson had to say about them when those views were brought to their attention.

220 Both experts used the internationally recognised diagnostic system of the Diagnostic Statistical Manual of Mental Disorders, Fifth Edition (DSM-V) to determine if the respondent met the criteria for any mental disorder.

221 Both Dr Wojnarowska and Ms Hasson found that the respondent met the diagnostic criteria of 'Paedophilia, non-exclusive type - attracted to female children and adults'.[250] Dr Wojnarowska diagnosed the respondent accordingly.

222 Paedophilia is a psychiatric disorder in which an adult or older adolescent experiences a primary or exclusive sexual attraction to prepubescent children. 'Non-exclusive type' refers to the fact that the respondent is attracted to both adults and children. A diagnosis of paedophilia, a form of sexual deviance, is important, because sexual deviance can provide a motivation for sexual offending[251] and its presence is associated strongly and specifically with the risk of sexual offending.[252]

223 The basis of Dr Wojnarowska's diagnosis was the chronic pattern of the respondent's deviant sexual arousal, which had been repeated and persistent, as was evident from his offending.[253] Similarly, Ms Hasson found that the respondent met the diagnostic criteria because of his 'history of sexual offending behaviour against pre-pubescent/pubescent females over many years [which] confirms the presence of sexual deviance, in particular a deviant sexual interest in female children'.[254]

224 Dr Wojnarowska noted that, in her interview, the respondent confirmed that he had been attracted to children in the past, but denied any current sexual thoughts about, or attraction to, female children.[255]

225 Paedophilia is generally regarded as being a lifelong disorder.[256] Dr Wojnarowska noted that paedophiles are likely to persist with offending much longer than other types of sexual offenders.[257] Further, health conditions, including a condition such as type 2 diabetes, which can cause erectile dysfunction,[258] will not necessarily diminish sexual offending by a person with paedophilia, because the deviant sexual interest can be fulfilled by sexual acts other than penile penetration, for instance by digital penetration,[259] or, it might be thought, any form of indecent dealing.

226 On the other hand, Ms Hasson explained that, because the paedophilia is 'non-exclusive', the respondent's sexual needs can be met appropriately and legally in his relationship with his current partner.[260] However, the difficulty with that, as will appear below, is whether his partner regards the relationship as a sexual relationship.

227 A sexual deviance that the respondent has admitted consistently is exhibitionism, acknowledging it was thrilling and exciting.[261] Ms Hasson found the respondent 'absolutely meets the criteria for exhibitionism'.[262] Dr Wojnarowska also found the respondent fulfilled the criteria for 'exhibitionism' and noted that it had been present even prior to the respondent's sexual interest in children.[263] She was of the opinion that the respondent's exhibitionism 'is definitely on the spectrum of compulsion'.[264]

228 Dr Wojnarowska did not find that the respondent had any specific personality disorder, but was of the opinion that he did present with Cluster B personality traits, including emotional instability, fear of abandonment, impulsivity and some antisocial attitudes.[265]

229 The PCL-R is a '20-item scale which uses both historical and dynamic data for the assessment of psychopathy in research, clinical and forensic settings'.[266] Both Ms Hasson and Dr Wojnarowska found that the respondent's score on the PCL-R was below that required to achieve a diagnosis of psychopathy.[267]

230 Ms Hasson noted that examination of both facet and factor scores reveals no significant concerns.[268] Dr Wojnarowska noted that the respondent does not possess many psychopathic features, and his score of 14 on the PCL-R placed him in the low range.[269]

231 The STATIC-99R is an internationally recognised risk assessment measure that combines 10 static (unchanging) risk factors that have been shown to be associated with increased risk of re-offending.[270] It is intended to position offenders in terms of their relative degree of risk of sexual recidivism based on those 10 items.[271]

232 Both Dr Wojnarowska and Ms Hasson found the respondent's score on the STATIC-99R to be '2'.[272] Dr Wojnarowska mentioned that the score was arrived at after taking into consideration the respondent's age, which resulted in two points being deducted from his overall score.[273] Although Ms Hasson did not mention that specifically, it would appear she arrived at her score in the same manner, as the factors she relied on were the same as those relied on by Dr Wojnarowska, namely the respondent's number of previous charges and convictions for sexual offences, the fact that his offending involved both contact and non-contact[274] offences, and the fact that his victims included girls who were not related to him as well as girls who were related to him.[275]

233 There was a difference between Dr Wojnarowska and Ms Hasson in their characterisation of the respondent's risk of committing another sexual offence on the basis of the STATIC-99R assessment, however it would appear that was the result of a change in terminology between editions of the instrument.[276] Accordingly, Dr Wojnarowska said the respondent's risk was in the 'medium-low' category,[277] whereas Ms Hasson said it was in the 'average' category.[278]

234 In the routine sample of sexual offenders (based on the data on which STATIC-99R relies), the average rate of sexual recidivism over a 5‑year period is between 5% and 15%.[279] This means that, 'out of 100 sexual offenders of mixed risk levels, between 5 and 15 would be charged or convicted of a new sexual offence after 5 years in the community'.[280] However, for offenders who scored 2 on STATIC-99R, the sexual recidivism rate at the 5-year mark in a routine sample, on average, was 5.6% (between 4.8% and 6.5%).[281] For offenders with the same score who came within the 'High Risk/High Needs' sample (being those who have received indeterminate sentences[282] or indefinite detention[283]) the average recidivism rate is 11.3% within the first 5 years and 19% within 10 years.[284] Dr Wojnarowska used the 11.3% figure, placing the respondent within the High Risk/High Need category, although she did not specifically refer to that consideration. Ms Hasson referred to both sets of figures for offenders with a score of 2, noting that the difference between the respondent and sexual offenders in the High Risk/High Need category is that the latter have already received indeterminate sentences (or, it would seem, indefinite detention).[285] However, as the respondent is subject to these proceedings, Ms Hasson said she would err towards the High Risk/High Need category rate of recidivism, rather than the routine sample.[286] Ultimately, therefore, she was in agreement with Dr Wojnarowska in respect of the 11.3% figure.

235 The research that resulted in STATIC-99R did not draw a distinction between sexual offenders who may have been under supervision upon their release and those who were not under supervision.[287]

236 Ms Hasson provided the following helpful context for the consideration of the STATIC-99R assessment:[288]

The Static-99R does not measure all relevant risk factors. [The respondent's] risk may be higher or lower than that indicated based on dynamic risk factors which will be considered using the RSVP. Reduced recidivism is associated with high-quality release plans that support accommodation, positive social connections, employment or hobbies, and prosocial, personally meaningful goals. It is quite plausible then that a gradual, multiyear decline in risk is linked to an individual developing increasingly effective, prosocial ways of achieving a satisfying life.

237 Utilising the RSVP structured clinical guidelines, both Dr Wojnarowska and Ms Hasson identified a number of historical and dynamic risk factors that are present in the respondent's case which are known to increase the likelihood of future sexual offending and which will require management. The dynamic risk factors identified by each of them were largely the same. The bases for identifying those factors were the historical information and information obtained from the respondent at the interview in each case, most of which is substantially outlined above. The factors are grouped into five domains:

(1) Sexual violence history;

(2) Psychological adjustment;

(3) Mental disorder;

(4) Social adjustment; and

(5) Manageability.

238 In their oral evidence, Dr Wojnarowska and Ms Hasson did not diverge in any significant way from their reports. It will be convenient to refer mainly to the contents of their reports in respect of their findings on the RSVP, and I will refer only to those factors that were found to be present.

239 In the domain of sexual violence history, both Dr Wojnarowska and Ms Hasson found the following factors present:

(1) Chronicity of sexual violence: This refers to the persistence and frequency of sexual offending. Both experts explained that it is not a causal factor, rather a marker for the presence of other important risk factors, particularly attitudes that support or condone sexual violence and sexual deviation.[289] The frequency of past sexual violence is one of the most reliable factors associated with recidivistic sexual offending.[290]

(2) Diversity of sexual violence: This was found by both experts to be partially present. There was some diversity in the respondent's deviant sexual behaviour in that it reflected both exhibitionism and paedophilia.[291] Further, both experts took into account that the offending had escalated to include the offence of digital penetration. Ms Hasson also took into account that the offending was against family members as well as victims who were not family members. However, all of the respondent's victims were female.[292]

240 I note that Dr Wojnarowska described most of the offences as being 'of an indecent exposure nature'. With respect, in my view that does not accurately reflect the fact that much of the early offending involved oral penetration of R with his penis and having her masturbate him, and all but one of the offences for which he was sentenced in the Supreme Court and District Court involved some form of touching, either by placing and holding the victim's hand on his penis or rubbing the victim's genitals. Ms Hasson also appears to have regarded the incident involving digital penetration as the only instance of sexual penetration, which she thought evinced an escalation. However, all of the sexual assaults involving oral penetration of the victim were instances of sexual penetration, as serious as the digital penetration.

241 Whereas Dr Wojnarowska considered that the factor of escalation of sexual violence was partially present,[293] Ms Hasson did not, because most of the respondent's offending had a similar pattern, whereas this factor is concerned with a pattern in which the acts of sexual violence become progressively more frequent, serious or diverse.[294] In my opinion, simply from a chronological perspective, it would be difficult to satisfy those criteria, because the last of the respondent's offending (in 2011) occurred after a significant period during which he did not sexually offend against female children, and those offences were by no means the most serious he committed. On the other hand, it could be said that his sexual offending against female children was of a very serious kind from the start, and involved different forms of touching and penetration.

242 Dr Wojnarowska found the factor of psychological coercion in sexual violence to be present. She referred to the fact that the respondent had utilised grooming behaviour by telling the victims not to tell their parents, as they would not be believed, and by offering goods, favours or accommodation to the victims and their parents.[295] He also threatened one of the victims by shouting at her when she did not comply.[296] Ms Hasson thought there was some evidence for the presence of the factor, also referring to grooming, including the fact that the respondent told the complainants not to tell anyone because they would not be believed.[297] She noted that the respondent also told one of his victims that he would tell her father she had stolen money if she did not comply. Ms Hasson noted, however, that there was no evidence of the respondent doing physical harm, or threatening such harm, to secure compliance.[298]

243 In the domain of psychological adjustment, both Dr Wojnarowska and Ms Hasson found that extreme minimisation or denial of sexual violence was present.[299] Dr Wojnarowska noted that the respondent engages in minimisation of his behaviour as he does not accept full responsibility for the extent of his behaviour; for example, he still denies a number of the offences of which he was convicted, particularly those relating to his daughters and the offence involving digital penetration.[300] As I noted earlier, Ms Hasson's perception was that the respondent acknowledged the majority of his offending behaviour, particularly pertaining to those against his oldest daughter. However, she noted that he had a tendency to minimise the seriousness of his conduct and to blame his victims.[301] She also noted the respondent's outright denial of his offending against some victims, including his younger daughter and NF.[302]

244 Ms Hasson found that there was 'some evidence' of attitudes that support or condone sexual violence, in that the respondent does not view himself as a 'sex offender' or 'paedophile'; he compares himself to other offenders and deems himself as 'not as bad'.[303] However, Dr Wojnarowska did not find this factor to be present, as she found that the respondent was aware that his offending behaviour against children is unacceptable.[304] As I have already indicated, the respondent's inconsistency on issues of this kind make it difficult to know precisely where he stands. The views expressed to Ms Hasson are consistent with views he indicated during the ISOTP.

245 I queried with Dr Wojnarowska what significance might be placed on the statement attributed to the respondent in the ISOTP Report, namely that, in the context of discussion about the impact of child sexual abuse on victims, the respondent was heard to comment that the positive effects of sexual abuse were not being discussed, although he did not elaborate when challenged.[305] Dr Wojnarowska had read the passage, but admitted that it had escaped her attention to discuss it with the respondent, so she did not have the opportunity to challenge him about it.[306] She said that the respondent had never indicated to her that he would perceive sexual offending against a child as being in any way positive for the child.[307] However, in discussing another factor in the RSVP, namely problems arising from child abuse, which I will discuss below, Dr Wojnarowska had said that there is clear evidence in the research that sexual abuse of a male child around puberty is most likely to lead to that person becoming a sexual offender.[308] While the reasons for that are 'not exactly known', the hypothesis is that the sexual abuse is associated with sexual arousal at the time it occurred, and there is 'some degree of fixation on that period of time'.[309] Dr Wojnarowska proffered the opinion that the kind of attitude underlying the comment attributed to the respondent in the ISOTP Report, may be related to the respondent's association with pleasurable sexual experience at the time he was sexually abused, if there was no additional physical violence involved in that abuse.[310]

246 Of course, the significance of possible distorted thinking of the kind outlined by Dr Wojnarowska is its potential contribution to the risk of the respondent re-offending. There may be little difference in that regard whether the thinking is due to a morally culpable belief system or the product of corruption of the respondent as a child. I am inclined to accept the opinion of Ms Hasson that there is some evidence to support the presence of this factor within the RSVP.

247 Dr Wojnarowska found that the factor of problems with self‑awareness was present.[311] She said it is an important factor and will need to be a focus of future treatment. In essence, it relates to the respondent's insight into why he has offended and the triggers for the offending.[312] Dr Wojnarowska was of the opinion that the respondent has very limited insight in respect of those matters, notwithstanding his apparent gains in the ISOTP and his acknowledgment to Dr Wojnarowska that previously he had been sexually interested in female children and that his offending was unacceptable.[313] Dr Wojnarowska noted that the respondent fluctuates in his acceptance of being a paedophile, he does not really understand the importance of his sexual interest in children and he has difficulties in making a connection between those urges and his past offences.[314] An indication of his limited insight is the fact that he believes his current relationship will protect him (sufficiently) from further offending.[315] Dr Wojnarowska was also of the view that the respondent showed little understanding of the consequences of his sexual behaviour.[316]

248 Ms Hasson was of the view that the factor of problems with self‑awareness had been present historically and there remained 'some or partial evidence' that it was a current factor.[317] She had a more positive view of the respondent's progress in respect of this factor, noting that, while there were occasions during her assessment when the respondent appeared unaware of his processes, reactions and beliefs, when they were brought to his attention and challenged he was able to reflect and reconsider his point of view and consider the point of view of others.[318] She found that the respondent had the ability to self-soothe and quickly diffuse situations in which he became emotionally volatile during her assessment, which suggested to her he had made some gains in the treatment programmes.[319] Further, Ms Hasson found that the respondent could outline, and appeared to have an understanding of, the broader underlying factors relating to his offending. However, there were some areas in which he continued to have problems with self‑awareness and lack of insight, in particular in respect of his interpersonal style and the way he presents to others or is perceived by them.[320]

249 Dr Wojnarowska found the factor of problems with stress or coping to be present.[321] As an example of its relationship to his offending, she referred to the respondent's failure to cope with his marital breakdown and the fact that he had sexually offended against R around that time.[322] As with the previous factor, Ms Hasson was of the view that, while this factor was present historically, the respondent had improved in this area of his functioning during his participation in the ISOTP.[323] She noted that the respondent had not attracted any adverse incident reports while in custody, even when experiencing stress, which suggested an improvement in his coping mechanisms.[324] The respondent said to both experts that, in the past, when he had not been coping, or had been experiencing negative emotions, he retreated or immersed himself in work, as it gave him self-esteem and self‑confidence and made him feel good.[325] However, it seems that, in his interview with Dr Wojnarowska, he also recognised that feelings of loneliness and his other negative emotions may have been triggers for his offending, because he finds it difficult to cope with them.[326]

250 Dr Wojnarowska was of the opinion that the factor of problems resulting from child abuse was 'definitely' present.[327] Ms Hasson found it to be 'partially present.'[328] Both experts were of the view that the respondent's perception of the responses of adults around him to his own sexual abuse as a child led to the development of maladaptive coping strategies.[329] In his interview with Dr Wojnarowska, the respondent recognised that his failure to receive an adequate or positive response when he reported being sexually abused created in him a false belief that the victims of child sexual abuse would not be believed, so that provided him with some sort of sense of security.[330] Similarly, Ms Hasson noted that the inaction of those around the respondent, created in him an underlying belief that it was fine to commit such acts, as there would be no repercussions.[331]

251 Ms Hasson said that, during her assessment, the respondent acknowledged the role his own experiences may have played in the formation of his attitudes and beliefs about offending, and he was able to be more positive and adopt a more nuanced view about his parents' actions, resulting in less hurt and anger.[332] This suggested that the respondent has the ability to take perspective and keep check of negative beliefs.[333]

252 In the domain of mental disorder, the respondent presents with the risk factor of sexual deviance, because of his paedophilia, which manifests as a deviant sexual interest in pre-pubescent/pubescent female children. I have outlined the significance of this factor at [222] and [225] above. In Dr Wojnarowska's opinion, this is the most important risk factor in assessing the ris[334]f sexual reoffending.334

253 In the same domain, Dr Wojnarowska found that violent ideation was partially present because, although the respondent does not have a history of non-sexual violent offending, and despite lacking an intention to hurt his victims, he does have a history of behaving in an aggressive manner during some of his sexual offending in a way that causes his victims fear.[335]

254 In the domain of social adjustment, Dr Wojnarowska and Ms Hasson considered whether the factor of problems with intimate and non-intimate relationships was present. Problems with intimate relationships are considered an important factor for sexual offending for a variety of reasons related to emotional coping and having appropriate or healthy outlets for sexual gratification.[336] Problems with non-intimate relationships are also important, and repeat sexual offenders are more likely to have deficits in 'socioaffective' functioning than non‑repeat sexual offenders.

255 Dr Wojnarowska found that the factor of problems with intimate and non-intimate relationships is partially present in the respondent's case.[337] She did not specify either in her report or in oral evidence whether both forms of relationship were affected, but her comments (bot in her report and in oral evidence) focussed on the respondent's problems with intimate relationships. Dr Wojnarowska noted that, at times, the respondent has been unable to meet his emotional and sexual needs in an appropriate relationship, due to his poor social and relationship skills and his history of being victimised in peer relationships.[338] One might have thought that those poor skills and history of victimisation would affect the respondent's ability to form non-intimate relationships as well. However, Dr Wojnarowska did not make particular mention of that, and Ms Hasson, in her report, was of the view that the respondent does not have problems establishing friendships and other non-intimate relationships.[339]

256 Dr Wojnarowska acknowledged that, at the time of assessment, the respondent had been and continued to be in a long-term stable relationship, which he said would fulfil his physical, psychological and sexual needs upon release from custody. However, Dr Wojnarowska considered it a problem that the last of the respondent's offences, in 2011, were committed by him while he was in that relationship.[340] Dr Wojnarowska also referred to the occasion during the ISOTP, which I have discussed above, when the respondent referred to his partner in negative terms.[341] I have already indicated that, on balance, I would not regard those comments by the respondent as detracting from the positive view he had expressed generally about the relationship. Of greater significance, it seems to me, is Ms K's indication to Ms Comery, to which I will return, questioning whether in the future her relationship with the respondent will be a romantic one. When I questioned Dr Wojnarowska about the significance of that, in light of the respondent's belief that the relationship will prevent him from re‑offending, she thought that it would have some relevance to risk if the relationship is not intimate. However, in her opinion, the presence of a supportive non-sexual relationship is still a protective factor, even if not as protective as a sexual relationship.[342]

257 Ms Hasson was of the opinion that, while the respondent had difficulties with intimate relationships in the past, he did not seem to have such issues at the time of her assessment, based on the respondent's relationship with Ms K.[343] Ms Hasson was aware of the possibility that Ms K may not want a romantic relationship with the respondent. Further, she had considered that the sexual aspect of the relationship may not be present in the way it had been before, given that the respondent has a number of health concerns and Ms K is now older.[344] She said she had discussed these issues with the respondent and Ms K. She said:[345]

[The respondent] expressed himself he's not sure how sexually they're going to be. They seem to have a nice basis for a relationship from his point of view, and also when I spoke to [Ms K] there seems to be more to their relationship than just a sexual component. So that should in itself be a protective factor, as long as they're both on the same page about their requirement to be sexually intimate together, and how that might pan out in the future.

258 Ms Hasson confirmed her agreement with Dr Wojnarowska that a stable, supportive relationship provides a protective factor, even without the romantic aspect.[346]

259 In relation to the offending in 2011, that occurred while the respondent was in his current relationship, Ms Hasson noted that the offending occurred within a week or two of the respondent being interviewed in respect of historical offending, after a prolonged period during which he had not offended.[347] She suggested that being interviewed about those matters in those circumstances may have been an emotionally unsettling experience, resulting in dysregulation, which provides context for the 2011 offending.[348] The difficulty I have with that explanation is that there is no evidence that the respondent was in a state of dysregulation at that time. His explanation to Dr Wojnarowska appears to be to the contrary, indicating it was opportunistic offending (although I have found otherwise) which did not happen at a time when he was depressed, lonely or frustrated.[349] Further, one might have thought that being interviewed about historical sexual offences might have provided a significant degree of deterrence from further sexual offending by the respondent in the short term.

260 In my opinion, the 2011 offending shows that the respondent's relationship with Ms K is not a sufficient protective factor against sexual reoffending by the respondent, notwithstanding the lengthy period during which the respondent had not committed a sexual offence. In fairness, Ms Hasson did not suggest otherwise. The point is that I do not find her contextual explanation for the 2011 offences persuasive.

261 In the domain of manageability Dr Wojnarowska found that the factor of problems with treatment was present.[350] In her opinion the respondent's past treatment has been ineffective, in that it appears the respondent did not benefit from his participation in the treatment programmes in relation to the majority of the factors in the psychological domain.[351] Although his engagement in the ISOTP was more meaningful than in previous programmes, his level of engagement fluctuated over the course.[352] Dr Wojnarowska noted that the respondent expressed willingness to engage in further treatment as required, but was not sure what else he could achieve. Further, the respondent's proposed residential location may make it difficult for him to access treatment of the intensity required by him in the community.[353]

262 In contrast to Dr Wojnarowska's opinion about this factor, Ms Hasson was of the view that it was not present. She said that while the respondent had strong views about certain parts of the ISOTP, and was 'far more contrary' about it than he was about earlier programmes,[354] overall he was 'reasonably positive' in what he told her about the programme.[355] Further, the fact that he participated in the programme and received a report that, overall, was positive, also militated against finding the factor to be present.[356] As he had done with Dr Wojnarowska, the respondent told Ms Hasson that he was willing to continue engaging in treatment in the future.[357]

263 Further, although the respondent expressed negative views to Ms Hasson about psychologists, she was of the opinion, from the manner in which he engaged during her assessment, that those views were not rigidly held and she did not believe there would be any issues with him engaging in individual treatment with a psychologist.[358] Ms Hasson was of the view that the respondent's negative views of psychologists stemmed from a belief that he had received negative appraisals from psychologists in the past, and he did not like that.[359] However, some challenging of his views elicited a more balanced view.[360]

264 In identifying problems with treatment as a relevant risk factor, Dr Wojnarowska focussed on the relative failure of the respondent to benefit from treatment so far, which means there are outstanding treatment needs that need to be addressed if the respondent's risk of reoffending is to be adequately managed. Dr Wojnarowska did not suggest that the respondent cannot be treated. To the contrary, she recommended that he undergo individual treatment with a psychologist.

265 Similarly, while Ms Hasson formed a different opinion about the benefits gained by the respondent from past treatment, she also identified that the respondent has outstanding treatment needs which should be addressed in individual treatment.

266 Dr Wojnarowska was of the view that the areas that require 'assertive treatment' and management include the presence of sexual deviance (which is a priority), impulsivity, poor stress tolerance and limited interpersonal skills,[361] but, more generally, the respondent's treatment needs are as outlined in the ISOTP Report.[362] There is a need to address the respondent's problem with self-awareness,[363] as that is critical to the respondent understanding his risk factors, including the pathways to his offending, and how to avoid and manage those factors.[364]

267 Ms Hasson identified similar treatment needs. In particular, she was of the view that, given the respondent's failure to acknowledge any history of deviant sexual thoughts or deviant sexual motivation for his behaviour (on the basis of what he had said to her), that risk factor will need to remain a focus of treatment, supervision, and management.[365] A further significant issue to be addressed is the respondent's denial and minimisation of his offending, which includes a failure to accept that his offending is 'part of who he is'.[366] Ms Hasson noted that the respondent is not going to develop self-awareness spontaneously; it is a matter that will need to be drawn to his attention, reinforced and challenged in treatment.[367]

268 As at the time of the hearing, the respondent had not had the opportunity to engage in further treatment since completing the ISOTP in 2015. As I said during the hearing, it is a matter of concern (and one that has been raised in previous cases)[368] that offenders in respect of whom an application has been made under the DSO Act (now the HRSO Act), where outstanding treatment needs have been identified, are not provided with suitable treatment before proceedings are determined. As Quinlan CJ said in Rao:[369]

It is, in my view, in the interests of the community, and its protection from offending, that an offender with known treatment needs have those treatment needs addressed before consideration is given to their release under supervision not, as is the case, afterwards. Logically, it might also be thought that the benefits of such treatment might be manifest the sooner the treatment commences. It is not in the interests of the community that the risks of a person such as Mr Rao should stagnate, and potentially worsen, as a consequence of a lack of treatment.

It is also, obviously, in Mr Rao's interests that treatment commences as soon as possible.

269 While in Mr Rao's case, the Chief Justice was referring to a group treatment programme, the same may be said of individual treatment where that has been identified as necessary. In the present case it was in the interests of both the community and the respondent to have such treatment start as soon as possible, particularly given that the respondent was denied parole and several years had passed since his participation in the ISOTP. Ms Comery gave evidence that there are circumstances in which prisoners (who are not, or not yet, subject to proceedings under the DSO Act (now the HRSO Act)) are referred to the Department's Forensic Psychological Service to be considered for individual counselling, which can then be provided, but that tends to occur where the prisoner has been assessed to be unsuitable for group treatment.[370] As the respondent had participated in the ISOTP, he did not fall into that category.[371] However, that ignores the fact that some considerable time had passed since his participation in the ISOTP, outstanding treatment needs had been identified at the end of the ISOTP (his gains were seen to be in the early stages and there was a need for 'continued monitoring and support to reinforce his learning'), and it was recommended the respondent attend psychological counselling as directed if he was released on parole.[372] There is an obvious lacuna in the system in respect of prisoners who have done the right thing by participating in group treatment, for which they were assessed to be suitable, but who have a need for continuing individual treatment.

270 Quinlan CJ described the situation in Rao as a Catch‑22 for the respondent in that case. In my respectful opinion, it is also an apt description for the respondent's situation in this case.

271 At the very least, once a decision is made at a preliminary hearing that the court might find the respondent is a high risk serious offender (previously a serious danger to the community), and that decision relies in part on evidence that the offender requires further treatment by way of individual psychological counselling, such counselling should be made available to the offender as part of their rehabilitation and with a view to assisting the court in its assessment of the offender's risk of reoffending at the time of the substantive hearing. Such counselling may not affect the determination of whether the person is a high risk serious offender, but it may well affect the decision as to what order should be made if he is found to be a high risk serious offender. Ultimately, however, the court must decide those issues on the evidence available, having regard to the risk presented by an offender in light of any outstanding treatment needs.

272 As will appear below, both Dr Wojnarowska and Ms Hasson were of the view that the respondent's individual treatment could commence in the community as part of a regime to manage his risk under a supervision order.

273 The question of whether the respondent presents an unacceptable risk to the community that he would commit a serious offence, such that it is necessary to make a restriction order to ensure adequate protection of the community against that risk, requires consideration of the type of offence the respondent is likely to commit, the characteristics of the victim/s against whom he is likely to offend and the likely impact of such offending on his victim/s. I have already addressed those matters to some extent in finding that the respondent has a propensity to commit serious sexual offences against prepubescent and pubescent girls. I have also referred to the respondent's patterns of offending.

274 The requirement that the court must have regard to whether or not there is any pattern of offending behaviour recognises that such patterns will ordinarily predict the likely pattern of future offending, where a propensity exists. As part of the RSVP assessment, both Dr Wojnarowska and Ms Hasson considered the likely scenarios for future offending by the respondent. Not surprisingly they drew on elements of his past offending, although there was a difference in their opinions about the most likely scenario.

275 In Dr Wojnarowska's opinion, the most likely offence scenario would be one in which the respondent would expose his genitals to female children and force them to touch him.[373] She noted that this may escalate to sexual penetration involving digital or penile penetration.[374] I note that, in the past, the latter has taken the form of oral penetration, rather than any other form of penile penetration.

276 The most likely scenario postulated by Dr Wojnarowska was one in which the offending would be highly impulsive and opportunistic against a prepubescent girl with whom he has come into close contact, and who is trusting of him because he has some relationship with her either directly or indirectly through the girl's parents.[375] She may not be very well known to him and the behaviour would be unexpected to her. It is a scenario that is similar to the offending in 2011.

277 The offending would be opportunistic, in that there would not be any specific triggers or warning signs, and he may still be in a relationship with his current partner, have fulfilling employment and be engaged in psychological treatment.[376] In other words, the respondent could be functioning normally and not experiencing any stressors at the time, and just the very contact with a child would be the trigger for sexual offending.[377]

278 Dr Wojnarowska considered that another likely risk scenario would be similar to the above, but the victim would be a prepubescent girl the respondent has been able to groom through longer-standing access and a position of trust, and the offending would occur when the respondent is depressed or lonely and is experiencing stressors.[378] In that case, there would likely be warning signs, such as the respondent isolating himself, being irritable or angry, a deterioration of his relationship with his partner or ceasing to communicate with his family.[379]

279 Ms Hasson was of the view that the respondent's most likely future offending would be against a female child known to him in a home environment or a setting with which the respondent is familiar, or in which he is comfortable.[380] She considered that the most likely form of offending would be the respondent exposing his penis and encouraging or facilitating the child to touch his penis, thereafter touching the child on the vagina.[381] Ms Hasson considered it likely that the respondent would engage in some grooming of the child prior to committing the offence, and that he might use some psychological coercion, as well as telling the child not to tell anyone about what happened.[382] She did not think that force or physical coercion would be an element.[383] She noted that the offending would likely be repeated until such time as the respondent's behaviour is exposed.[384]

280 Ms Hasson considered that an escalation of the respondent's offending would involve a similar pattern to the above scenario, but would progress to oral or digital penetration, and that he might show anger and yell at the child to gain compliance.[385]

281 Although the scenarios identified by both experts involved children with whom the respondent would have some familiarity, neither of them ruled out the possibility of the respondent 'seeking out a child', Ms Hasson noting that the respondent had not had to do so previously.[386]

282 In my opinion, there is a real risk that the respondent could commit a sexual offence in any of the scenarios described by Dr Wojnarowska and Ms Hasson. I am inclined to think that the respondent's offending has more often reflected the first scenario described by Ms Hasson, except that his offending against R, which was the first in time, commenced with offences of oral penetration, so such acts could be perpetrated at an early stage rather than by way of escalation. However, they would likely involve grooming and significant trust, as was the case with R.

283 On the other hand, Dr Wojnarowska is correct to point out that the respondent's last offences, in 2011, did not involve any triggers or warning signs (on the respondent's own admission to her) and occurred simply because he was in close contact with the girl, which caused him to act on his deviant sexual interest. As I will discuss below, the conditions of the supervision order proposed by the applicant (as an alternative to its primary position that a CDO should be made) are designed to minimise the prospect of any of the scenarios arising, and to allow for early intervention if it is a scenario in which there are warning signs.

284 I should note, finally, on the question of the likely form of sexual offending, that Ms Hasson considered, as a possibility, a further escalation of offending involving penile penetration of a child's vagina.[387] On the evidence before me, that would appear to be an unlikely scenario. In any event, it was considered as conduct that would involve a significant escalation of the respondent's offending. If the respondent were subject to a supervision order, it would be expected that the conditions would operate to enable intervention to occur before any escalation of that kind.

285 In assessing the risk to the community, a significant factor is the likely harm to a victim caused by offending fitting any of the scenarios. The various ways in which harm to a child victim of sexual offending is manifested are well known to courts which deal with such offending. They were clearly stated by Bowden DCJ when his Honour sentenced the respondent in 2013:[388]

Now, whilst the reports refer to you lacking empathy and not understanding the effects of your abuse on children, the courts do have an understanding of the effect of this abuse on children. Although I haven't been provided with victim impact statements, the courts recognise that this sort of abuse causes real difficulties for the victims. It quite often affects their ability to trust other people. It can affect their ability to trust other family members. It affects their own questions of self esteem and their own questions of identity. It can affect their friends. It can affect their ability at school and it has a very long ranging and dramatic effect and impact on their life.

286 Both Dr Wojnarowska and Ms Hasson confirmed that significant and enduring psychological harm would be suffered by the victims.[389] As Ms Hasson pointed out, the harm can manifest immediately in terms of behavioural or emotional problems, or it can be years before the effects are known.[390] Further, exposure and touching offences can be just as devastating to an individual as more serious sexual abuse.[391]

287 The RSVP requires a clinician to make an assessment of the imminence of a person committing a sexual offence if the person is in the community without intervention or support.

288 Dr Wojnarowska was of the opinion that the single most important factor that would affect the imminence of the risk that the respondent would sexually re-offend, would be close physical proximity to a child. If he were subject to a supervision order and had no opportunity to see children or be in their presence, then the risk would not be imminent.[392]

289 Ms Hasson also identified access to children to be the most significant factor affecting imminence of the respondent's risk of re‑offending, but more generally she considered that the imminence of re-offending would depend on whether the dynamic risk factors identified in the RSVP assessment are present.[393] So, if the respondent was feeling lonely, isolated or stressed, he might initiate contact with a child, and might then progress towards offending.[394] In Ms Hasson's view, exposure behaviour would happen sooner than a contact offence, as the exposure behaviour appears to have been a chronic pattern of behaviour, whereas the contact offending occurred in circumstances where there had been a build-up of a relationship over a period of time and a certain level of familiarity.[395] Dr Wojnarowska expressed a similar view.[396]

290 In Ms Hasson's opinion, if the respondent were released without being subject to restrictions, the imminent risk of offending may emerge after a period of weeks or months post‑release.[397] Further, based on past behaviour, if the respondent commenced offending, it is likely to continue if he did not get caught or the child was not removed.[398]

291 Based on her formal assessment and clinical judgment, Dr Wojnarowska concluded that, once the dynamic risk factors are added to the score on the STATIC-99R, the respondent's risk of sexual re-offending if he is not subject to a restriction order is elevated to 'high'. In other words, for the purposes of the HRSO Act, his risk of committing a serious offence in those circumstances is high, because the sexual offences that Dr Wojnarowska has in mind are offences of the kind previously committed by the respondent, which mainly constituted serious offences.[399] Dr Wojnarowska was of the opinion that the respondent's risk would be unmanageable if he were not subject to a supervision order or a CDO.[400]

292 Having considered all of the findings from the STATIC-99R, RSVP and her clinical assessment of the respondent, Ms Hasson's assessment was that the respondent presents an 'average risk' of reoffending if he is not subject to a supervision order or a CDO.[401] 'Average' is used here by reference to persons who have previously sexually offended, not by reference to persons in the community at large.[402]

293 Ms Hasson explained that the difference between her description of the level of risk and Dr Wojnarowska's description stems from a change in the language used in the STATIC 99-R. The 2016 version of STATIC 99-R used by Ms Hasson eschews terms such as 'low', 'moderate' and 'high' for the terms 'average', 'above average' and 'well above average'.[403] She noted that it is more important to look at the recidivism rates, rather than the wording used to describe the level of risk.[404] Despite the difference in terminology, Ms Hasson was also of the opinion that the level of the respondent's risk of re-offending was such that a restriction order would be necessary to ensure the adequate protection of the community.

294 Ultimately, the question for me is whether there is an unacceptable risk that the respondent will commit a serious offence, and whether a restriction order is necessary to ensure adequate protection of the community against that risk. As I noted earlier in these reasons, for a risk to be unacceptable it need not be at some high percentage of probability; it may be unacceptable at less than 50%.[405] It is necessary to identify what it is that constitutes the risk and makes it unacceptable. Both Dr Wojnarowska and Ms Hasson did those things in their assessments, both in their reports and in their detailed oral evidence. I consider that I should give significant weight to their opinions in determining the ultimate issues.

295 Dr Wojnarowska recommended that the respondent undergo intensive individual psychological intervention and treatment with medication.[406] She recommended 'assertive treatment', in that the respondent should have as many professional supports in the community as possible, with a high frequency of contact.[407] In her view, psychological treatment would need to continue for at least five years and should target the treatment needs outlined in the ISOTP Report.[408]

296 At the time of the hearing, current and prospective restrictions within the community as a result of the COVID-19 pandemic, put in doubt the ability of a psychologist to see the respondent in person on a regular basis. Those restrictions were lifted some time ago, but have been re-imposed in various degrees sporadically and for short periods when a risk of community infections has arisen, and there remains the possibility of future restrictions if such a risk were to arise again. That possibility was realised in the week leading up to the delivery of this judgment, when the State Government re-imposed restrictions and then a 'lockdown' for the Perth and the Peel regions as a result of two community infections. Therefore, the potential remains that psychological treatment might have to be delivered by means other than in person from time to time.

297 In any event, the respondent intends to reside with Ms K at a property in a rural location. The significant geographical distance of that property from the Perth metropolitan area may make it difficult for regular psychological counselling to be conducted in person. Dr Wojnarowska said that psychological counselling could occur by electronic audio-visual means (in other words, a video link by means of a suitable internet platform), although generally it is not desirable because of the intimate nature of the discussion, and its effectiveness would depend on the individual.[409] She thought that the respondent would benefit initially from an in-person session, at least once, and then subsequent sessions could be conducted by audio-visual means if the respondent is comfortable with that.

298 Dr Wojnarowska said that, if the respondent were being released on a supervision order to live in the metropolitan area, she would also recommend, in addition to individual psychological counselling, that the respondent take part in a community based sex offender maintenance programme. However, she did not consider that such a maintenance programme would be necessary for adequate management of the respondent within the community under such an order.[410]

299 What is necessary, however, in Dr Wojnarowska's opinion, is treatment with anti-depressant medication, in particular Selective Serotonin Reuptake Inhibitor (SSRI) medication, which should be a necessary condition of the respondent's release into the community.[411] SSRI medication can have an anti-libidinal effect without the deleterious physical side effects associated with hormonal anti-libidinal medication, which, understandably, appear to have been a matter of concern to the respondent.[412] To be clear, Dr Wojnarowska did not recommend hormonal (anti-testosterone) treatment.[413] SSRI medication, which can be prescribed by a general practitioner, is a first line of treatment for sexual offending.[414] In high doses, it is effective to treat dysregulation, which includes impulsiveness and a poor ability to manage (regulate) emotional responses, and is the only treatment known to be effective to treat exhibitionism, which is highly impulsive behaviour, suggestive of a problem with impulse control.[415]

300 In Dr Wojnarowska's view, high dose SSRI treatment is particularly important in the respondent's case because his exhibitionism may be regarded as a first step in his pathway to sexual offending against children.[416] Dr Wojnarowska said there is no evidence in the research that exhibitionism is amenable to psychological treatment, in the way that paedophilia, for example, might be.[417]

301 Further, SSRI treatment will assist the respondent more generally with self-regulation in the context of a number of his dynamic risk factors associated with poor coping mechanisms.[418]

302 Dr Wojnarowska considered SSRI treatment to be appropriate for the respondent, having regard to his age and physical condition. She said it would take at least three months for the anti-depressants to achieve their desired effect, because the desired dosage cannot be prescribed immediately; it must be increased over a period of time.[419] Ideally, such treatment should commence, and the required dosage be attained, while the respondent is in prison.[420] However, Dr Wojnarowska did not suggest that the respondent's risk could not be managed in the community under a suitable supervision order while the effects of SSRI medication took effect, if he commenced to take the medication immediately after release into the community. She agreed that, if the respondent is released on a supervision order without having commenced SSRI treatment, then requiring him to remain at his residence during the initial stages of SSRI treatment in the community, if that is possible, would assist in risk prevention.[421]

303 A further recommendation from Dr Wojnarowska was that the respondent should not have any contact with children in the future, whether supervised or not.[422] In her opinion, even supervised access could lead to a psychological trigger for the respondent, which could lead to fantasising and an increase in his risk of reoffending.[423]

304 Ms Hasson also recommended that the respondent should not be alone with children under the age of 16 years, and that he should avoid places where children are known to frequent without sufficient supervision, such as schools, playgrounds, leisure centres, parks, and swimming pools.[424]

305 Like Dr Wojnarowska, Ms Hasson thought that the respondent's treatment needs would best be met through individual counselling, to commence as soon as possible.[425] However, she did not think that the respondent's risk would be increased if counselling could not be started until he is released on the supervision order.[426]

306 On the question of conducting counselling by means other than in‑person, Ms Hasson said that, generally, a psychologist needs to be able to see the individual receiving treatment, to see how they are coping and managing.[427] She was of the view that conducting counselling by audio-visual means, for instance by Skype, Zoom or similar platforms, can be effective, but her preference is always face‑to‑face, with audio-visual means being a second preference.[428] Ms Hasson said that using audio-visual means is very different to sitting in a room with someone. She identified a number of disadvantages of using audio-visual sessions that would affect the therapist's ability to assess the person's demeanour and psychological state, and to build rapport with them.[429] However, she said that in exceptional circumstances it can be done, when people are geographically distant or in the event of Covid-19 restrictions as were in place in 2020.[430] She thought telephone contact would be inadequate and should only be used if the respondent had a question or wanted to check in with something that could be dealt with quickly.[431]

307 In Ms Hasson's view, the psychologist providing counselling to the respondent would be expected to have a lot of experience and skill to be able to keep the respondent focused (on risk prevention strategies) and to challenge his views and attitudes where necessary,[432] in particular to identify and address inappropriate thoughts, desires, and behaviours,[433] including, by way of example, his pattern of exposing himself to others both deliberately and passively (for example by wearing shorts without underwear).[434] Counselling should also assist the respondent to manage any problems, difficulties or conflicts that may arise in his current relationship.[435]

308 Ms Hasson believes counselling will be a long-term process.[436]

309 She said that the focus of the respondent's engagement on an order should be to develop a lifestyle and community engagement consistent with his age by seeking meaningful employment, engaging in age appropriate hobbies, interests, and leisure pursuits, and re-establishing his intimate relationship and prosocial friendships and supports.[437] It will be important for those involved in monitoring, supervising and treating the respondent to monitor his emotional regulation and psychological wellbeing, and to obtain information regarding his current relationship, his employment and engagement in hobbies and social activities.[438]

Whether the respondent's risk can be managed on a supervision order

310 Dr Wojnarowska was of the opinion that the respondent's risk could be adequately managed on a supervision order with conditions such as those that were proposed in the Community Supervision Assessment report, which she considered to be appropriate.[439] Those conditions were largely in accordance with the conditions in the Annexure to these reasons.

311 In arriving at her opinion, Dr Wojnarowska placed significance on the respondent's history of compliance on parole orders, and the fact that, in her opinion, he does not present with antisocial attitudes.[440] Dr Wojnarowska also placed emphasis on the fact that the respondent 'has a supportive partner who is well informed about his offending history and [has] declared her readiness to have no tolerance for [the respondent's] reoffending' and that he has stable accommodation and job prospects.[441] As I said earlier, Dr Wojnarowska was of the opinion that the respondent's risk could be managed in the community under a supervision order, even if psychological and pharmacological treatment is not initiated until his release.[442] She noted that psychological treatment would not result in a drastic decrease in the respondent's level of risk within the first three to six months; the period over which a significant decrease would occur would be closer to two years.[443]

312 Dr Wojnarowska was of the view that, while the relatively isolated location of the proposed accommodation would present a logistical challenge, it would not prevent the adequate management of the respondent's risk if he were released subject to a supervision order, particularly as he is willing and able to travel whatever distance may be necessary to attend for reporting and counselling sessions.[444] Dr Wojnarowska maintained that view, notwithstanding the concerns raised by the police about managing the respondent's risk, having regard to where he would be residing, which I will discuss below.

313 Ms Hasson also was of the opinion that the respondent's risk could be managed in the community under a supervision order with conditions as proposed in the Community Supervision Assessment report.[445] Ms Hasson relied on a number of factors, including that:

(1) the respondent would be relocating to his own property, with Ms K;

(2) he has sufficient supports in place, being his partner and a small group of friends who have been visiting him in custody and are broadly aware of his offending;

(3) he has a number of hobbies and interests to occupy him;

(4) he has possible employment prospects; and

(5) he has made some treatment gains (though he still has some way to go), and has expressed a willingness to participate in further treatment.[446]

314 As I noted earlier, Ms Hasson did not think that the supportive nature of the respondent's relationship with Ms K was dependent on it being a romantic relationship. When Ms Hasson spoke with her, Ms K accepted that the respondent had committed sexual offences against children.[447] Moreover, she had adopted a long-term strategy of not allowing children to be around the respondent. That strategy pre-dated the respondent's most recent imprisonment. Ms K told Ms Hasson that children would not be coming to their property.[448]

315 Ms Hasson thought that the risk of the respondent coming into contract with children can be managed effectively with the proposed conditions outlined in the Community Supervision Assessment.[449]

316 Ms Hasson was asked whether she thought the respondent would cope with contact from police officers from the Sex Offender Management Squad (SOMS), given that the offences in 2011 occurred a short period after he was interviewed by police in respect of historical offences, and Ms Hasson seemed to think that provided context for the last two offences.[450] Ms Hasson was of the view that the two situations are different, and the contact the respondent would have to have with officers from SOMS would not necessarily be stressful for him.[451]

317 The proposed conditions in effect would prevent the respondent from having any contact, without prior approval (with narrow exceptions, for instance to enable him to go shopping), with any child under the age of 18 years, male or female. Apart from the offences against his daughter, E, who was over the age of 16 years, the respondent's offending has been against female children under the age of 16 years. Ms Hasson noted that there is no indication that the respondent has offended against male children but it is easier to manage and supervise him if there is a blanket prevention against contact with all children.[452] She thought references in the conditions to 'children under 18' was appropriate.[453]

318 Ms Hasson quite properly indicated that, as she is not a medical practitioner, she could not comment on the appropriateness of prescribing SSRI medication to the respondent, or requiring him to take it, but she was of the opinion that SSRI medication can be a useful form of treatment, in particular for compulsive type behaviour and impulsivity, as suggested by Dr Wojnarowska, and she has worked with individuals in the past who have used such medication for such behaviour.[454]

319 Like Dr Wojnarowska, Ms Hasson thought the respondent's risk could be managed adequately if he were released on a supervision order to live at the proposed accommodation in the rural location, notwithstanding the concerns expressed by WA Police. Ms Hasson said that, after considering the Community Supervision Assessment report of Ms Comery, which I will discuss below, her view was that the risks identified by the police could be managed.[455]

320 Both experts believed that a supervision order should be for a period of at least five years, having regard to the respondent's risk.[456]

321 As will appear below, when interviewed by Dr Bannister, the respondent expressed resentment towards the DSO Act and these proceedings. When asked whether that evidence would affect her opinion about the likelihood that the respondent would comply with the conditions of a supervision order, Dr Wojnarowska said she had not had the opportunity to consider those comments by the respondent.[457] She said that the comments would suggest that the respondent has an anti-authoritarian attitude, which is very different to the views he portrayed to her during her interview, in which he assured her that he would comply with any orders made.[458] However, while Dr Wojnarowska considered the respondent's comments to Dr Bannister to be important, she was of the view that, ultimately, it was the respondent's past behaviour, in terms of compliance with parole orders, that mattered most in predicting whether he would comply with the conditions of a supervision order:[459]

[When] your Honour looks at these points, the previous orders, there is no evidence that he breached them. And that's what he's telling me ... he may be - he is unhappy, obviously, because he expressed this sentiment to Dr Bannister, but he certainly assured me that, should he be subject to any orders, he would comply. Again, this is a matter - the person may think something, but what is really important for us is the [past] behaviour.

322 Ms Hasson was aware of the comments made by the respondent to Dr Bannister. She had also spoken with the respondent about his attitude towards the DSO Act process and was able to provide further insight into the respondent's thought processes. It is necessary to set out Ms Hasson's answer in full to give the full flavour of her assessment:[460]

[I]nitially when I met him we spoke about the process. He does, he comes across with lots of grievances thinking he doesn't like the whole process; he doesn't like being subjected to that. And that was one of those things where allowing him to vent his frustrations and his irritations about it, and, 'Why can't I get out?' and all of that. He then sort of came round to, 'Well, if you - it's a choice staying in or getting out, if that's how it's done,' he's able to process and re-think and re‑evaluate. He saw that there were some benefits about getting further support. So he does come out with all of those very negative beliefs and, 'I'm going to do this, and I'm going to do that, and I'm going to, you know, appeal,' and that comes up first. He doesn't - he didn't want to be under this; he doesn't see himself under that. But then he acknowledges, 'All right, if it has to be that way I will comply and I will do that.' And I agree with Dr Wojnarowska that he has complied with supervision and monitoring in the past. But this is the sorts of attitudes and beliefs that any person supervising and managing him will probably have to deal with from time to time and - but he does settle and change his views.

323 Perhaps of greater concern is the fact that the respondent expressed a grievance about staff at the Adult Community Corrections (ACC) office to which he will need to report if he is released and lives at his proposed residence. A brief reference to that grievance appears in Ms Comery's Community Supervision Assessment report, although she did not give oral evidence about it.[461] Ms Hasson indicated that she had been provided information about the issue during her discussions with Dr Bannister and Ms Comery.[462] I am not able to find any reference to it in Dr Bannister's report, but I will assume for present purposes that the information related by Ms Hasson, which goes beyond what was reported by Ms Comery, reflects the views expressed by the respondent to either or both of Dr Bannister and Ms Comery. The respondent felt that previous assessments of him by the CCOs at the relevant ACC office were not an accurate reflection of him, and that they were biased and out to get him.[463] The respondent expressed some concern that if the same people were working at that office, it might be 'problematic' for him.[464] Ms Hasson did not go on to consider whether that would affect her assessment of the respondent's manageability under a supervision order. However, Ms Comery noted in her report:[465]

It was discussed with [the respondent] that continuing to harbour negative thoughts about a particular ACC office following an interaction with one staff member could have a detrimental impact upon his engagement with a [supervision order], should he be made subject to the Act. He agreed and indicated he would 'start afresh with no negative feelings' should he be required to report to [the relevant] ACC.

324 This would appear to be an example of the process described by Ms Hasson, referred to at [322] above, whereby the respondent may be shifted from a negative attitude by appropriate challenging and reasoning. I do not give the respondent's initial negative comments any weight in determining whether he would substantially comply with a supervision order. However, they fall into category of 'the sorts of attitudes and beliefs that any person supervising and managing him will probably have to deal with from time to time', referred to by Ms Hasson.

Protective nature of the respondent's relationship with Ms K

325 In relation to whether Ms K's relationship with the respondent will be a protective factor in reducing his risk of re-offending, it will be recalled that, at the time of the parole assessment in respect of the respondent's most recent sentence, Ms K indicated to the SCCO, Ms Dabala, that she did not believe the respondent had committed some of the sexual offences. Ms Dabala thought such an attitude would not be protective of the community and any potential victims.[466] The evidence indicates that Ms K has not maintained that view. As I noted earlier, she told Ms Hasson that she accepted the respondent had committed sexual offences against children.[467] Further, as I will discuss below, what Ms K said to Ms Comery also indicates acceptance of the respondent's guilt of his offences.

326 Nevertheless, Dr Wojnarowska was asked about the potential significance of the attitude evinced by Ms K's comment to Ms Dabala. Dr Wojnarowska was of the view that it did not prevent the relationship from being a protective factor in the management of the respondent's risk. She said that what is important is whether Ms K is likely to behave in a protective way.[468] In that regard, Dr Wojnarowska noted that Ms K had indicated she would never allow the respondent to have access to her grandchildren.[469] I note also that Ms K told Ms Dabala that she would not hesitate to contact police if the respondent 'put one foot out of place'.[470]

327 Ms Hasson was asked if she had any comment to make about Ms K's statement to Ms Dabala. She suggested that Ms K may simply have been reflecting the fact that the respondent does not accept he committed all of the offences of which he has been convicted, as he indicated in his interview with Ms Hasson. She did not think that it reflected a failure by Ms K overall to accept that the respondent has sexually offended against female children. Ms Hasson believed the indications in the evidence are to the contrary, and Ms K's expressions of intent to ensure the respondent has no contact with female children appear to be genuine.

Condition not to commit further sexual offences

328 The proposed conditions for a supervision order, should I find that the respondent is a high risk serious offender and that a supervision order is otherwise appropriate, include a condition that the respondent must not commit offences of a sexual nature that are not serious offences, including doing an obscene act in public (Criminal Code s 202), doing an indecent act in public (Criminal Code s 203) and doing an indecent act with intent to offend (Criminal Code s 204).[471] The respondent's propensity to indecently expose himself would put him at risk of committing an offence contrary to any one or more of those provisions. Given the link between his exhibitionism and his sexual offending against children, it is appropriate that such a condition be included, as offending involving obscene or indecent acts would be a red flag for elevated risk that the respondent will commit a serious offence. Given the somewhat compulsive nature of the respondent's disorder of exhibitionism, it is necessary to consider whether he is likely to substantially comply with the proposed condition of a supervision order that prohibits 'exhibitionist' type offending.

329 Dr Wojnarowska said she took these matters into account,[472] and she remained of the opinion that, with the supervision, monitoring and treatment structures in place, the respondent is likely to comply with the proposed conditions.[473]

330 Ms Hasson acknowledged that the respondent has a 'chronic pattern of exposing himself to those around him', usually in his home environment, and that 'might' happen.[474] She thought that there were protective measures that could be put in place, and that was something that could be addressed by the respondent's psychologist.[475] She, too, remained of the view that the respondent is likely to comply with the proposed conditions of the supervision order.

Other reports Report of Dr Bannister - Proposed Dangerous Sex Offender Treatment Plan

331 Dr Bannister is a forensic psychologist with the Department of Justice. It was not the purpose of his report to make an assessment of the respondent's risk of future sexual offending. Rather, the purpose was to make an assessment of the respondent's ongoing treatment needs, if any, and how they can be met. Dr Bannister made that assessment on the basis of the materials in the BOM, consultation with Ms Comery and a three hour interview conducted with the respondent on 15 June 2020.

332 As I noted earlier, Dr Bannister did not give oral evidence.

333 Earlier in these reasons I outlined Dr Bannister's comments about the respondent's participation in the Think First Program and the ISOTP.[476]

334 Dr Bannister identified the factors relevant to respondent's sexual offending by reference to the STABLE-2007 assessment instrument, which measures dynamic risk factors relevant to sexual offending, 'in order to assist stakeholders to formulate a case management plan or to identify treatment and supervision targets for individual offenders'.[477] Although the instrument can be used to assess (or 'score') future risk, Dr Bannister did not use it for that purpose. Rather, he used it as an aide-memoire to identify outstanding treatment targets that may warrant either further intervention or the development of risk management strategies.

335 Many of the dynamic risk factors in the STABLE-2007 instrument correlate with factors in the RSVP, and Dr Bannister's findings were similar in respect of some of those factors to the findings made by Dr Wojnarowska and Ms Hasson.

336 Dr Bannister identified the following items in the STABLE-2007 as being relevant to the respondent's future treatment and management:

(1) Significant social influences: Although the respondent is in a relationship with Ms K and has two other friends who he said are prosocial, he had concerns about making friends in the future if he is on a supervision order, because he will have to disclose his status as a dangerous sex offender.

(2) Capacity for relationship stability: Dr Bannister noted that the respondent had been in a relationship with his current partner since 2008. When questioned by Dr Bannister about the two offences that occurred while he was in this relationship with Ms K, the respondent provided an account which was inconsistent with the known facts of the offending.[478] Obviously the issue is relevant to whether the relationship will be a protective factor against re-offending, as I have discussed above. It appears that the respondent's answer does not assist in that assessment.

(3) Hostility towards women: This had been noted in the ISOTP Report. Dr Bannister said that an element of such hostility was evident during his assessment, when the respondent discussed his ex-wife.[479]

(4) Emotional identification with children: This had been postulated in the ISOTP Report. Although Dr Bannister regarded it as a factor to be considered, he noted that, during his assessment, the respondent said he preferred the company of older people.[480]

(5) General social rejection/loneliness: Dr Bannister considered this to be a factor evident from what the respondent said about his upbringing and about his mental state around the time of his offending. The respondent referred to only a few genuine and lasting connections with other people. He said he was lonely in custody, but did not think that the loneliness would persist in the community. He said that he found it easy to make friends, if he chose to do so.[481]

(6) Lack of concern for others: Dr Bannister noted that the respondent had previously shown deficits in empathy, especially when discussing his victims. Despite this being a relevant consideration, Dr Bannister did not find any clear evidence that lack of concern for others is a 'broad, multi-domain personality trait' in the respondent.[482]

(7) Impulsivity: Dr Bannister found this factor to be somewhat relevant to the respondent, based on collateral evidence, and that, to some extent, it was evident in elements of his offending. The respondent told Dr Bannister that he did not consider himself impulsive though he acted spontaneously at times.[483]

(8) Poor problem solving: This has been identified as a problem in previous assessments. During his assessment, Dr Bannister found that, while the respondent was able to recognise some of the likely problems he will face, he was of the view that the degree to which such issues could be solved would be dependent on the actions of others. Overall, Dr Bannister thought the respondent needs some assistance with generating and evaluating alternative actions and outcomes.[484]

(9) Negative emotionality/hostility: Dr Bannister found this to be a key issue for the respondent. The respondent displays a tendency to feel victimised and mistreated by others and often responds with anger and hostility. This generalised grievance manifests as an angry and resentful presentation and an unwillingness or inability to cope constructively.[485]

(10) Deviant sexual interest: Despite his sexual offending, the respondent maintained that he had never had paedophilic interest. He told Dr Bannister that his offending was primarily motivated by 'sexual gratification brought about through exhibitionism'.[486]

(11) Sex drive/preoccupation: The respondent denied an excessive sex drive or a preoccupation with sex. He said he was concerned about his capacity to function sexually in the future due to his health issues.[487]

(12) Sex as coping: The respondent acknowledged that some of his offending was preceded by high stress levels and poor management of negative thoughts and emotions (particularly in relation to the 2011 offending). Dr Bannister was of the view, on the basis of collateral materials, that such factors appeared to be present in some of the respondent's earlier offending as well. In his view, this suggested that, at least to some extent, the respondent may rely on sex to self-soothe or mitigate unwelcome feelings of tension, anger, hostility or anxiety.[488]

(13) Co-operation with supervision: Dr Bannister noted that the respondent has previously complied with supervision while on parole. However, when asked about the current proceedings, the respondent said that the DSO Act was 'illegal' and he was resentful about being considered under it.[489] He said he would seek to challenge any supervision order conditions with which he was not happy.[490] (I have understood this to mean that he would challenge such conditions in these proceedings, not after release, if they were in fact made conditions of a supervision order.[491] The applicant did not suggest otherwise).

337 I note in relation to item (1) that the respondent's obligation would be to make full disclosure about his past offending and the supervision order, as directed by a CCO. That qualification is unlikely to make any difference to the respondent's concern, expressed to Dr Bannister. However, the concern appears to be at odds with the attitude the respondent expressed during the ISOTP that he intended to build friendships 'based on acceptance and understanding in the community (through honest disclosure about his past and where he has been, prison)'.[492] On the other hand, it may be that the respondent was expressing to Dr Bannister his realistic assessment of taking that approach.

338 I note that the respondent's acknowledgement in respect of item (12) that his offending in 2011 was preceded by high stress levels is contrary to what he said to Dr Wojnarowska about those offences.[493]

339 Overall, Dr Bannister found that the respondent had outstanding treatment needs that required attention, as follows:[494]

(1) As a priority, '[the respondent] will ideally need to make improvements in the areas of emotional regulation, adaptive problem solving, consequential thinking and task-focussed coping'. Dr Bannister considered that the respondent's 'enhancement' in these areas will assist to provide 'scaffolding' for meaningful attention to be paid to underlying issues.

(2) The respondent also needs to address various factors categorised as 'intimacy deficits', so as to maximise the prospect that his current relationship will act as a protective factor. Dr Bannister said that, specifically, this should include therapy aimed at reducing the respondent's generalised hostility and resentment, as well as addressing 'negative/unhelpful schemas' pertaining to himself and others.

(3) Treatment should also focus on 'emotion identification' and perspective-taking, with particular emphasis on challenging the respondent's 'negative emotionality', with a view to improving his insight and encouraging him to internalise his locus of control. Dr Bannister was of the view that, in turn, this may result in the respondent having an 'increased sense of mastery and empowerment', with improvement in his self-esteem and 'personal agency'.

(4) Treatment will also need to deal with the respondent's deviant sexual interest, which remains unaddressed. Dr Bannister noted that '[the respondent's] denial of any paedophilic interest is supported by cognitive distortions, which will need to be addressed first, in order to lay the clinical groundwork to allow meaningful and open discussion of his deviancy'.

(5) Finally, it will also be necessary to work on further development of the respondent's future risk management strategies.

340 As with the recommendations of Dr Wojnarowska and Ms Hasson, Dr Bannister was of the view that the respondent's treatment should take an individualised approach, which would allow treatment to be more targeted to his specific needs and would facilitate greater accountability on his part.[495] Dr Bannister noted that the treating clinician assigned to the respondent should be someone who is experienced at working with challenging clients, as it may be difficult to establish a robust and genuine therapeutic relationship with him due to his external locus of control and his tendency to engage in 'ruminative grievance thinking'.[496]

341 Dr Bannister also noted that the respondent's therapeutic gains are likely to be made incrementally, because of the impact that his character and his manner of interacting with others are likely to have on any therapeutic relationship, and because the respondent is likely to find it difficult to engage in sustained and honest self-reflection.[497]

342 In the event that the respondent is made subject to a restriction order, he will be allocated an experienced psychologist by the Department of Justice.[498] If he is released into the community on a supervision order, the respondent will receive regular contact from his psychologist (either remotely or in person, depending on his location).[499] Weekly face-to-face contact will occur only if the respondent remains in the Perth metropolitan area.[500]

Report of Ms Comery - Community Supervision Assessment

343 Ms Comery prepared a Community Supervision Assessment report, dated 16 July 2020. Ms Comery is an SCCO with COMU and, at the time of the hearing, was the respondent's CCO.[501]

344 The purpose of her report was to provide an assessment of the management and supervision issues that may affect the suitability of the respondent for release on a supervision order and to propose draft conditions considered necessary for the adequate management of the respondent's risk in the community if the court were to release him on a supervision order. The report contains information obtained from various sources, including the respondent. The draft conditions were formulated by reference to the standard conditions mandated by the DSO Act (which were in similar terms to the standard conditions now in the HRSO Act[502]) and in consultation with the experts who have provided opinions in these proceedings, insofar as conditions specific to the respondent's circumstances are concerned. Most of the conditions proposed in this case are common in cases involving child sex offenders.

345 The respondent proposes to live with Ms K in the home they shared previously, if he is released. The home is located in a small town outside the Perth metropolitan area. I will refer to it as Town A. Ms Comery visited the location. She confirmed that the GPS monitoring equipment the respondent would be required to wear if released on a supervision order had been tested on the way to and at the location, and there were no issues reported by the central monitoring station.[503] However, the response time for electronic monitoring officers to attend and be able to 'physically sight' the respondent, in the event that an issue arose with the GPS monitoring device, would be in the order of two to three hours.[504] Ms Comery noted that it is a matter for the court as to whether that would be an adequate response time to ensure the adequate protection of the community.[505]

346 Ms Comery said that Town A is very small. She saw six to seven houses and could not determine if some of them were occupied.[506] When she visited, COVID-19 restrictions were in place, so the local hotel was closed. Ms K informed Ms Comery that it rarely opens.[507] There are no other services and no schools in the town.[508]

347 Ms Comery said that she also attended a larger town, Town B, close to Town A. In Town B there was a deli, where she noticed three toddlers.[509]

348 The proposed accommodation is on a large fenced residential block.[510] The only person likely to attend the property apart from Ms K is an adult friend of the respondent.[511]

349 Ms Comery said that the main difference stemming from the fact that the respondent's proposed accommodation is in a rural location, compared to accommodation in the metropolitan area, is the frequency of random home visits. Because of the length of time it will take an officer to get to the property and return, it is likely that a visit would be conducted only after confirming with the respondent that he would be present at the time of the proposed visit.[512] Therefore, the visits would not be 'random'.[513] Apart from monitoring matters such as whether the respondent is consuming illicit substances or is in possession of child exploitation material, the random inspections are used to get a better view of the person's environment and to determine if there is anyone at the premises whose attendance has not been disclosed to the CCO, without giving the respondent a chance to prepare and avoid detection.[514] To take an obvious example, if a child was at the premises, they might be asked to leave before the inspection takes place.

350 Ms Comery confirmed that, to visit a CCO, the respondent would have to travel by vehicle to a larger rural town, Town C, which was identified by Ms Comery in her report and is the nearest town with an Adult Community Corrections centre.[515] She confirmed there would not be much difference between the respondent attending that centre and attending a metropolitan centre.[516]

351 Ms Comery said that, apart from the proposed accommodation, there are no alternative accommodation options for the respondent. She had canvassed the UnitingCare West DSO supported accommodation programme, with the purpose of identifying accommodation in the metropolitan area, but the respondent declined to be referred.[517] In any event, at the time she gave evidence there were no houses available in that programme.[518]

352 WA Police conducted a desktop spatial analysis in relation to the proposed residence. The analysis considers information about the location of the residence and its surrounds, identifying any factors that might affect the management and monitoring of the respondent's risk and looking at the feasibility of WA Police and other agencies being able to perform their functions adequately to ensure compliance with the conditions of a supervision order and detect any breaches Ms Comery summarised the analysis in her report.[519]

353 One of the matters that needed to be considered was that the respondent will be a reportable offender for the purposes of the Community Protection (Offender Reporting) Act 2004 (WA), which will require police to monitor him and manage his case under that Act. The desktop analysis noted that all case management from a policing viewpoint in that regard would be carried out from Town C, which is more than 150 km from Town A.

354 The desktop analysis identified two major concerns with the location of the proposed accommodation. First, given the particular regional location, there are limited police resources (particularly in terms of staff), even looking further afield to towns such as Town B and Town C, and WA Police were concerned the resources would not be sufficient to implement the case management strategies that are required to effectively monitor a person who is subject to a supervision order.[520] Secondly, in light of the limited number of staff and the distances to some of the other towns in the region, there would likely be significant delay in the police response to any urgent security issues or risk situation. It was suggested in the analysis that, in light of those matters, the risk to the community and to the respondent would be too high. Of course, that depends on the level of risk and what is required to manage it to ensure adequate protection of the community. The desktop analysis does not determine the level of that risk. That is a matter for this court to assess, having regard to all the evidence that has been presented.

355 I note that Ms Comery spoke with the WA Police Local District Manager (LDM) for the relevant rural region. The LDM confirmed that, in light of current workloads and resources, attendances at the property to conduct compliance checks could not occur with the same frequency as they would in the metropolitan area.[521] However, police from Town C would attend regular interagency risk management meetings in respect of the respondent, and would communicate frequently with the respondent's CCO as and when required.

356 As I outlined earlier, Dr Wojnarowska was of the view that the respondent's risk could be managed if he were residing at the proposed accommodation, despite the comments in the desktop spatial analysis.[522] Ms Hasson was of a similar view. I also referred earlier to the views of both experts as to whether psychological counselling could be provided adequately by electronic audio-visual means, if necessary. On balance, that could occur, but at least the initial session should be in person, and that would appear to be achievable by the respondent travelling to the psychologist, despite the fact that it will be a lengthy trip.

357 Ms Comery noted that the father of one of the respondent's victims has a connection to Town B, but she did not know how frequently he attended that town.[523] She noted that the Victim-Offender Mediation Unit (VOMU) was satisfied with the proposed conditions of the draft supervision order in that, when supplemented with written lawful instructions, they would provide enough time to notify the victims if the respondent was attending in close proximity of that town.[524]

358 Notwithstanding the possibility that some of the counselling sessions could be provided to the respondent by electronic audio-visual means, it remains the case that the respondent may be required to travel to Perth for appointments. Ms Comery canvassed this with the respondent, and he expressed a willingness to abide by those conditions.[525]

359 I have discussed above the importance of pro-social support in the community to assist in the management of the respondent's risk, and the role that Ms K would be expected to play. Ms Comery spoke with Ms K, who confirmed her willingness to assist the respondent to ensure he complies with the conditions of the supervision order (which was presented her in terms of Ms Comery's draft).[526] Ms K told Ms Comery that she was aware of the respondent's offending, as she had accompanied him to court, prior to and at sentencing.[527] Ms Comery was of the understanding that Ms K accepts that the respondent committed the offences of which he was convicted.[528] In her report, Ms Comery noted:[529]

[Ms K] stated that when convicted of his most recent offences, she was initially shocked and did not want to believe he had engaged in the offending. She made comment that she now knows he committed the offences, as she stated he has admitted this to her.

360 Ms K told Ms Comery in emphatic terms that, while she was willing to have the respondent live with her, she would not tolerate any 'stuff ups' and that, if the respondent were to breach a condition of a supervision order (by putting 'one foot out of line'), she would be the first to inform the authorities of such a breach.[530] She also told Ms Comery, consistently with what she said to Ms Hasson, that she would not allow her own grandchildren or other children to attend the residence.[531]

361 In addition, I note that Ms Hasson said the following about Ms K in her report:[532]

[Ms K] also advised that she has spoken to [the respondent] about her routines and daily activities as well as her need for independence and the ability to travel to Perth to visit her son ... According to [Ms K] the respondent has always been supportive of her relationship with her children and he is understanding that there may be occasions when she is absent from their home.

[Ms K] acknowledged that she and [the respondent] have had several conversations about the future including their relationship, work options, financial constraints, hobbies and interests, future goals and how each of these areas may be impacted if he is released on a supervision order. [Ms K] appears realistic about the challenges [the respondent] will face as well as them as a couple. She indicated they communicate well, enjoy several common hobbies and leisure pursuits and that [the respondent] will have a small but supportive group of friends to socialise with if released. [Ms K] indicated she is prepared to be a part of [the respondent's] supervision and management team and will attend appointments with him as required.

362 Ms K did not give evidence in these proceedings. However, my overall impression from the evidence concerning things said by Ms K to Ms Dabala for the parole assessment, and to Ms Hasson and Ms Comery for the purposes of these proceedings, is that she is a pro‑social individual who has been honest with each of those authors, and there is no reason to doubt the reliability of what she has said about her relationship with the respondent and the discussions she has had with him. Therefore, I accept what she said to Ms Hasson about those matters. On that basis, and on the basis of what she said to Ms Comery, I am satisfied Ms K will be a pro-social support for the respondent and will be able and willing to play an important role in ensuring he is compliant with a supervision order.

363 As I noted above, the draft conditions proposed in Ms Comery's report for inclusion in a supervision order included conditions that are common in cases involving child sex offenders, but were tailored to the respondent's circumstances.[533] The applicant subsequently submitted a draft supervision order, which included proposed amendments to the draft conditions proposed by Ms Comery, and two additional conditions. The applicant then submitted a further amended draft after the hearing to reflect the change in legislation.

364 The proposed conditions in the draft supervision order were largely in accordance with the conditions in the Annexure to these reasons. The Annexure contains changes to reflect the amendments and additions proposed by the applicant (with some further amendment) and additional conditions, which I will discuss below.

365 Apart from the standard conditions, the proposed conditions place a number of restrictions and obligations on the respondent that are intended to address his risk factors, prevent risk-laden situations from arising and allow for close monitoring and supervision to detect any change in his level of risk at an early stage, so that remedial steps can be taken. Those steps might be by way of therapeutic or supervisory intervention if the respondent has not contravened the supervision order, or by way of breach proceedings if he has contravened the order. The restrictions and obligations include the following:

(1) The respondent will not be able to commence or change employment (paid or unpaid) without prior approval of his CCO. This will ensure the CCO is aware of any employment in which the respondent is engaged, and what level of risk it may present, given that the respondent previously offended in a retail store he operated, and against an employee in his delivery business;

(2) The respondent will be obliged to engage with a psychiatrist, psychologist and other support persons, as directed by his CCO, ensuring that he continues to receive counselling as recommended by Dr Wojnarowska, Ms Hasson and Dr Bannister. He will also be obliged to participate in programmes designed to address his offending behaviour, as directed by his CCO. Although the prospect that he will be required to participate in such programmes may be small, given where he will be residing, the option should remain open in case there is a change in circumstances, bearing in mind Dr Wojnarowska's recommendation of a sex offender treatment maintenance programme;

(3) The respondent will be required to take medication as directed by his CCO in consultation with a medical practitioner, and will be tested to ensure he has been compliant. This is intended to allow for the implementation of Dr Wojnarowska's recommendation that the respondent should be on SSRI medication to assist in dealing with his impulsivity and for its anti-libidinal effects. I note that, in light of Dr Wojnarowska's evidence, the original proposal that the condition include 'hormonal anti-libidinal treatment' is not appropriate. For reasons I explained earlier, the condition concerning medication should be confined to non-hormonal treatment;

(4) Although there is no evidence that the respondent has previously accessed child exploitation material or used the internet or electronic devices to access non-exploitative images of children, or to communicate with children, for sexual purposes or otherwise, the conditions would prohibit the respondent from doing those things (the first of which is unlawful anyway). Such a condition is appropriate as an added precaution against the respondent engaging in conduct that could result in arousal of his sexual interest in female children, particularly as he would be living in a rather isolated rural location;

(5) The respondent will be obliged to allow police to search his premises and access any computers or other electronic devices in his possession which could be used for an activity that is prohibited under the conditions and may be evidence of an increase in the level of his risk. Such searches and access would be to ensure the respondent has been compliant with the conditions of the supervision order. The respondent would also be prevented from allowing anyone else to use his computer or electronic devices without prior approval of his CCO, which is intended to avoid a situation in which any inappropriate material on his computer or devices could be attributed to anyone else;

(6) The respondent will be required to maintain a diary of his movements and contacts. This would assist his CCO and WA Police to know where he has been and with whom he is meeting, but it will also enable the respondent to focus on his obligations and be mindful of where he is going and the persons with whom he is associating in the context of understanding his risk scenarios and the things he needs to avoid.

(7) The respondent will be subject to a curfew as directed by his CCO from time to time. While, at this stage, the respondent's risk of re-offending has not been linked to any particular time of the day, it is appropriate that his CCO have the authority to impose a curfew as a means of restricting the respondent's movements to reduce his risk of sexual re-offending, depending on the circumstances as they develop, particularly given the issues that have been raised by the police in respect of adequately monitoring the respondent's compliance because of distance and response times. Ms Comery noted that while curfews can be imposed by a CCO, they cannot be any more than 12 hours within a 24-hour period, but they could be imposed at random (and checks could occur during that time).[534]

(8) The respondent will be required to agree to the exchange of information by persons or agencies involved in implementing the supervision order, and to those persons and agencies disclosing confidential information about him, including his offending history, to any associates or potential associates. He will also be required, if directed by his CCO to do so, to disclose his past offending and the existence of the supervision order to any person with whom he commences a friendship or a domestic, romantic or sexual relationship. Further he would be precluded from forming a domestic relationship with someone who has a child or children, without prior approval of a CCO. All of these measures are intended to minimise the risk of the respondent getting access to female children through friendships or intimate relationships with adults, and to provide such adults with the opportunity to protect any children in their care from the risk of sexual offending by the respondent.

(9) The respondent will not be able to have contact with any of his victims, unless it is in accordance with an agreement made through or approved by the VOMU.

(10) The respondent will be prevented from having contact by any means with children under the age of 18 years (in other words, all children) unless it is authorised in advance by a CCO, or it is necessary to complete a commercial transaction, in which case contact must be limited to the minimum necessary to complete the transaction. He will be required to report any inadvertent contact. Again, apart from the protective aspect of the restriction, his obligation to comply should make the respondent mindful of his circumstances, so as to avoid risk scenarios.

(10) The respondent will also be prevented, without prior approval from his CCO, from seeking or obtaining membership of clubs or associations where children may also be members.

366 Turning to the amendments submitted by the applicant, the first was the inclusion of a condition that the respondent not be allowed to leave Town A without notifying his CCO, unless it was for a medical emergency, in which case he should advise his CCO as soon as practicable that he had to leave for that reason. Ms Comery said that the proposed condition would require the respondent, for the duration of the supervision order, to inform a CCO of his intention to leave Town A every time he wished to leave. She noted that Town A has very limited resources, and the respondent would need to travel to a nearby town (such as Town B) for groceries and any services, and the requirement to inform a CCO every time could prove to be impractical. COMU was of the view that, if a condition of that kind was considered necessary, it may be appropriate to give discretion to a CSO as to when the notification needed to occur, rather than having a blanket prohibition on travel from Town A without giving notice.[535]

367 Ms Comery suggested that suitable compromise might be to have a conditions in the following terms:[536]

As and when directed by a CCO, you are to advise a CCO prior to leaving the [Town A], unless for a medical emergency, in which case you should advise the CCO as soon as practicable.

368 Ms Comery suggested that such a requirement could be imposed by direction in the initial stages of the period of a supervision order, and could be reduced or removed later. It seems to me with respect, that, if the respondent were to be released, that would be an eminently sensible approach. Requiring the respondent to give notice of his intention to leave Town A in the early stages, with the consequence that he could not leave if he has not given notice, could serve to focus the respondent's attention on his obligations under the supervision order at a time when he may only just be commencing the treatment with SSRI medication and the individual counselling.

369 The second proposed amendment was a condition that the respondent not be permitted to go to Town B unless he gives 48 hours' notice to his CCO, except in the case of a medical emergency.[537] Apart from Town B being a place where the respondent might obtain provisions, he has a connection with the town because he had a mechanical workshop there.[538] It was partly destroyed by fire in 2016, but the respondent told Ms Comery he intends to repair the workshop and reopen his business for mechanical repairs and restoration of old vehicles.[539]

370 The purpose of the proposed condition concerning travel to Town B was to avoid inadvertent contact between the respondent and the victim whose father has a connection to that town, or with the victim's father or other family member. However, under that proposed condition, travel to Town B would not require approval, only the giving of notice. Ms Comery said that COMU sought the views of VOMU, who would be notifying the victim about any potential inadvertent contact.[540] Officers at VOMU were concerned about the burden that would be placed on them to have to advise the victim every time the respondent gave notice to his CCO that he intended to travel to Town B. It would be particularly difficult if the respondent were to give short notice, in which case it could be difficult to get hold of the victim.[541] The other issue raised by VOMU was that information from the victim's family suggested the respondent would not be welcome in Town B, and there could be concerns for his safety and the safety of Ms K if they were to attend Town B and people associated with the victim were aware.

371 COMU considered that a condition to the effect that the respondent is 'not to attend [Town B] unless approved by a CCO' might be considered suitable, in that it would be more flexible, allowing a CCO more discretion, and the terms of the approval would give the victim and her family more certainty as to when the respondent might be in Town B, alleviating the need for VOMU to notify them on every occasion.[542] However, it would not overcome the concern for the respondent's safety. In my view that is a matter for the respondent and Ms K to consider, and for the authorities to monitor. There is no evidence of any particular hostility from the victim or her family, and the court should be able to expect citizens will behave lawfully and maintain the peace.

372 The parties' submissions were made in the context of proceedings under the DSO Act. However, they also apply for the purposes of determining the issues under the HRSO Act. Where appropriate, I have reframed the submissions in terms of the issues under the HRSO Act.

373 The applicant's submission ultimately was that the court can be satisfied that the respondent is a serious danger to the community for the purposes of the DSO Act (therefore now a high risk serious offender for the purposes of the HRSO Act). Further, the applicant submitted that to ensure the adequate protection of the community, it is necessary to make a CDO, because the respondent's risk could not be adequately managed in the community under a supervision order, having regard to the risk assessments made by Dr Wojnarowska and Ms Hasson, the concerns raised by the police in relation to the proposed accommodation, and the respondent's outstanding treatment needs.

374 In essence, the applicant submitted that, whether the court accepts Dr Wojnarowska's assessment of a 'high' risk of sexual reoffending or Ms Hasson's assessment of 'average' risk, in context, having regard to the dynamic factors both experts identified, the diagnoses of paedophilia and exhibitionism, the respondent's failure to fully accept his sexual deviance and to understand the impact it has on his risk and his history of sexual offending after previously being convicted and sentenced for such offending, the risk that he would commit a serious offence if he were not subject to a restriction order is significant. Taking into account the vulnerability of potential victims and the considerable potential harm to them in the various risk scenarios identified by Dr Wojnarowska and Ms Hasson, the risk is unacceptable, such that it is necessary to make a restriction order to ensure the adequate protection of the community.[543]

Applicant's submissions as to why a CDO should be made

375 The applicant submitted that while Dr Wojnarowska and Ms Hasson differed in their opinions about the extent to which the respondent had made treatment gains, both considered that he had outstanding treatment needs, as did Dr Bannister. In Dr Wojnarowska's view the respondent needed 'assertive' treatment and management. The applicant noted that all three experts were of the view that the respondent needs to engage in individual treatment as soon as possible, but the respondent has not yet received such treatment.[544]

376 Further, the respondent has not started treatment with SSRI medication as recommended by Dr Wojnarowska. Although Dr Wojnarowska said it was not essential for such treatment to start before the respondent's release, the applicant submitted that the treatment would be an important adjunct to management of the respondent's risk in the community, because it would reduce impulsivity, which is one of the main factors in the most likely risk scenario, in which his sexual offending commences with indecent exposure.[545] The applicant submitted that this is an outstanding treatment need that also goes to the question of whether the respondent is likely to substantially comply with the most significant standard condition of a supervision order under the DSO Act, namely that he not commit a sexual offence.[546] That reasoning applies equally in the context of the equivalent standard condition of a supervision order under the HRSO Act, because the sexual offences he is likely to commit are serious offences for the purposes of that condition.

377 The applicant relied on the dicta of Quinlan CJ in Rao[547] in support of the proposition that it is in the interests of the community, and its protection from offending, that an offender with known treatment needs have those treatment needs addressed before consideration is given to their release under supervision. As I noted in discussion with counsel, the Chief Justice's remarks appear to have been primarily directed at the unsatisfactory state of affairs whereby offenders were not given appropriate treatment until found to be a serious danger under the DSO Act, as I indicated earlier in these reasons. The context of the remarks do not suggest that his Honour was expressing a principle about the way in which outstanding treatment needs ought to affect the decision whether to release an offender on a supervision order in every case. In any event, the circumstances in Rao differed from the present case, in that he had not completed a sex offender treatment programme. The question of whether the respondent's further treatment, both psychologically and pharmacologically, can be commenced after he is released on a supervision order, without compromising the adequate protection of the community, must be determined in this case in light of all the circumstances, including the imminence of his risk of offending and any external constraints and supports in place to minimise his risk while he embarks on the treatment process.

378 However, the applicant submitted that there is a combination of factors that militate against the efficacy of a supervision order to adequately protect the community at this stage, which should at least leave the court in doubt that a supervision order would provide such protection.

379 In addition to the fact that the respondent is in need of treatment, the applicant pointed to the concerns raised by the police in the desktop spatial analysis in respect of their ability to properly monitor the respondent and manage his risk, and the inevitable significant delay in response in the event that there was an issue with the GPS monitoring system. The applicant submitted that, as the police and COMU would be the two agencies principally responsible for monitoring and supervising the respondent in the community, their concerns should be given significant weight.[548] In that regard, the applicant relied on the practical problems identified in the desktop spatial analysis and the Community Supervision Assessment report, rather than any opinion expressed by WA Police about the level of risk. Those problems indicate that the effectiveness of the usual measures for monitoring risk, including random visits to and searches of his home, will be compromised.

380 As I have understood the applicant's submission, if the monitoring and risk management measures were not compromised, it might be argued that the treatment needs could be addressed in the community. However, the fact that the monitoring and risk management measures are compromised, because of the location of the proposed accommodation and limited resources, underscores the importance of ensuring the respondent has received the benefits of further treatment, including a reduction of his libido and impulsiveness, before he is released. The argument is that, if he has been treated and is showing psychological gains in the areas that still require attention, and it can be demonstrated that the SSRI medication is having effect, then the available monitoring and risk management measures might be sufficient to provide adequate protection of the community, despite the limited resources and lengthy response times, because the risk will have been reduced.

381 The applicant referred to the use of exclusion zones to illustrate the potential problem for risk management. The applicant postulated that, without children in his private sphere, the applicant might seek children out in public areas where children frequent, and his initial offending would be likely to involve indecent exposure because of his exhibitionism. If he has not received SSRI treatment, his impulsiveness would put him at higher risk of opportunistic offending in such circumstances. His CCO could use exclusion zones designed to prevent the respondent frequenting places where children are present, to minimise that risk.[549] However, the logistical problems identified by the police would mean that any breach of an exclusion zone by the respondent, with the potential elevation of risk, could not be policed effectively, because it could take police hours to attend if GPS monitoring detected the respondent entering such a zone.

382 The applicant also pointed to the respondent's attitude to the DSO Act, as reported by Dr Bannister, as a factor that militates against a finding that the respondent would substantially comply with the standard conditions of a supervision order.

383 The applicant submitted that the court could not be satisfied that the respondent's relationship with Ms K would be a significant protective factor in determining whether the proposed supervision order will provide adequate protection of the community. There is doubt as to whether it will be resumed as a romantic relationship, so his sexual needs might not be met in the relationship. Further, while the evidence of Dr Wojnarowska and Ms Hasson undoubtedly supports the conclusion that a stable supportive relationship would be a protective factor, even if it is not romantic, it is not a safe conclusion in this case because the respondent sexually offended while he was in this relationship.[550]

384 The applicant also relied on the fact that Ms K previously made statements during the Parole Assessment that she did not believe that the respondent was guilty of some of the offending of which he was convicted. The applicant noted, although Ms K has said more recently that she accepts that the respondent is guilty of all of the offending, her statements to that effect have not been tested in cross-examination.[551] I note that, while there appears to have been an inconsistency between what Ms K said at the time of the parole assessment and what she said more recently to Ms Hasson and Ms Comery, I do not accept the applicant's submissions in respect of this issue, for the reasons set out at [359] - [362] above.

385 The respondent did not concede that the evidence established to the requisite standard that he was (at the time of the hearing) a 'serious danger to the community' for the purposes of the DSO Act. However, neither did he submit that such a finding was not open. The focus of the respondent's submissions was on the type of restriction order that should be made.[552]

386 The respondent submitted that the effect of the expert evidence is that, notwithstanding the level of the respondent's risk in the absence of a restriction order, if the measures recommended by them and proposed under the draft supervision order are in place, the risk factors will be reduced to such an extent that the respondent could be managed in the community.[553] The respondent relied on the confidence expressed by the experts that he would comply with the conditions of a supervision order. He submitted that the factors underpinning the opinions of Dr Wojnarowska and Ms Hasson, as outlined by them, should also satisfy me on the balance of probabilities that the respondent will substantially comply with the standard conditions of a supervision order and with the other conditions that have been proposed. It was submitted that, in that context, any negative views expressed by the respondent in respect of the DSO Act process should be understood as a reflection of frustration, rather than an obstacle to compliance, and the evidence is that his views are amenable to change.

387 The respondent submitted that the weight of the evidence favoured a finding that psychological treatment can be delivered adequately to the respondent within the community, despite the fact that he will be living in a relatively isolated rural location. The respondent noted that Dr Bannister, whose role it was to assess the respondent's ongoing treatment needs and how it could be delivered, had reported that, if the respondent was subject to a supervision order, he would be allocated a psychologist by the Department and could be provided treatment remotely via video-link, if necessary.[554]

388 The respondent submitted, further, that the evidence of both Dr Wojnarowska and Ms Hasson supported the conclusion that the location of the proposed accommodation would not prevent the adequate management of the respondent's risk under the proposed supervision order or the respondent's ability to adhere to the conditions of that proposed order.[555]

389 The respondent submitted that the logistical difficulties that may confront the police in effectively carrying out random checks for illegal substance use by the respondent, access by him to child exploitation material and contact by him with children electronically, ought not militate against releasing the respondent subject to a supervision order, because those matters do not appear to have been issues for the respondent in the past, and have not been identified as specific risk factors.[556] The respondent also pointed to the fact that Ms K has said she will not allow children to come to the property, and the fact that the property is in a remote area where children are unlikely to happen upon his residence.[557]

390 The respondent submitted that any issues with exclusion zones can be monitored by GPS, and the monitoring log can be reviewed to determine if the respondent has breached a lawful direction in respect of an exclusion zone. He could then be charged him with the breach. It was submitted that, in any case involving exclusion zones, it is unlikely that police would attend the location immediately and apprehend the person for the breach while still in the exclusion zone.[558]

391 On the issue of SSRI medication, the submissions made by the respondent's counsel were really in the nature of conveying his instructions as to the respondent's preparedness to take such medication and the fact that his concern was with hormonal anti-libidinal medication.[559] I do not give the submissions any weight in that regard. The respondent elected not to give evidence, and it is inappropriate for factual statements that ought to have been the subject of evidence to be made from the bar table. However, I can infer from Dr Wojnarowska's evidence that the respondent has not indicated any objection to SSRI treatment, whereas he had expressed concerns about hormonal treatment. In any event, if the taking of SSRI medication is necessary for the adequate management of the respondent's risk, and is mandated as part of a condition of a supervision order, non-compliance would render the respondent liable to contravention proceedings, which would require the court to reassess the suitability of a supervision order.

392 Finally, it was submitted on the respondent's behalf that the evidence supports the conclusion that he is willing to travel to Perth, if necessary, to comply with conditions, for example, to report for supervision, counselling or urinalysis.[560]

393 The respondent submitted that, having regard to all of the above, I can be satisfied that a supervision order would provide adequate protection of the community, and he should be released subject to such an order, in the terms proposed, rather than be subject to a CDO.[561]

Conclusion - whether the respondent is a high risk serious offender

394 Having considered all of the evidence to which I have referred that bears on the factors in s 7(3) of the HRSO Act, and finding that evidence to be cogent and acceptable, I am satisfied to a high degree of probability that the respondent currently presents an unacceptable risk to the community that he would commit a serious offence, being a serious sexual offence against female children, particularly under the age of 16 years, including pre-pubescent girls, and that it is necessary to make a restriction order to ensure adequate protection of the community against that risk.

395 That conclusion is supported by the findings I have made in the course of these reasons in respect of at least the following matters, of which I am satisfied to a high degree of probability:

(1) The respondent has a propensity to commit serious sexual offences against female children in the context of two forms of sexual deviance with which he has been diagnosed, namely paedophilia and exhibitionism;

(2) The respondent's paedophilia is likely a life-long disorder and is a significant risk factor, providing motivation for his sexual offending;

(3) The respondent's exhibitionism has a compulsive nature to it, driven by the excitement he gets from the shock he causes;

(4) The respondent has engaged in indecent acts driven by his exhibitionism, notwithstanding his awareness of that disorder;

(5) The respondent's exhibitionism can be, and has been, a prelude to more serious sexual offences involving indecent touching and sexual penetration, so its compulsive nature increases the risk of other sexual offending;

(6) The respondent's risk of committing a serious offence (being a sexual offence against a female child) is elevated because of his inability at times to control his impulsivity;

(7) There has been a pattern to the respondent's offending, which has been directed mainly at girls under the age of 16 years, including prepubescent girls, and at times has involved grooming and psychological coercion;

(8) The respondent's sexual offending has included both calculated offending, in which he has taken steps to conceal detection, and brazen offending in respect of which there was a significant risk of detection;

(9) The respondent has committed sexual offences after release from prison for similar offending, after participation in treatment, and while in a relationship he considers to be pro‑social and protective against the risk of re-offending;

(10) Although there is evidence that the respondent made some gains in his most recent treatment (the Think First Program and ISOTP), those gains have not yet been tested in the community;

(11) In any event, the respondent has significant outstanding treatment needs, identified at [264] - [267], [336] and [339] above, that he must continue to address in psychological counselling if his risk is to be managed adequately in the community;

(12) While the respondent has some insight into factors that might be regarded as precursors to his offending (such as stress, rejection, deficits in intimacy), his understanding of those factors requires reinforcement;

(13) The respondent continues to have a lack of insight (or adequate insight) into his sexual deviance and its impact on his risk of re‑offending. In particular, he has not yet accepted his diagnosis of paedophilia and has continued to minimise and deny some of his offending, although he has been inconsistent in that regard;

(14) The respondent is likely to re-offend against vulnerable prepubescent and underage adolescent girls, in circumstances in which the offending may be difficult to detect and the child may be persuaded or coerced by the respondent into not reporting his conduct;

(15) The likely offence scenarios, if the respondent were to reoffend, would potentially cause significant psychological harm to his victims; and

(16) Although Dr Wojnarowska and Ms Hasson used different terminology to describe the respondent's level of risk after administering the STATIC-99R and RSVP and applying clinical judgment ('high' and 'average' respectively), the level of the respondent's risk of re-offending, as assessed by both of them, is such that a restriction order would be necessary to ensure the adequate protection of the community. That was the opinion they both expressed.

396 In my opinion, the evidence establishes that the respondent has an overblown, unrealistic view of his own capacity to manage his risk in the community. That was particularly evident during the ISOTP. Further, while Ms K will provide a measure of protection against the respondent's risk of sexual re-offending, her support would not be sufficient to prevent the risk from being realised, as was evident in 2011.

397 For the reasons I have given, I am satisfied to a high degree of probability that, if the respondent were not subject to a restriction order, the risk that he would commit a serious offence is unacceptable. I find, therefore, that he is a high risk serious offender.

398 The question then is whether the respondent's risk could be managed adequately in the community if he were subject to a supervision order, in particular one in similar terms to the draft supervision order in these proceedings. If so, then the appropriate order is a supervision order, given the need to make the order least invasive of the respondent's right to be at liberty (the respondent having served the punishment for his offending), provided the order will ensure adequate protection of the community, which is the paramount consideration. Of course, before the court can reach that conclusion, it must be satisfied on the balance of probabilities that the respondent will comply with the standard conditions of the supervision order.

399 If a supervision order cannot mitigate the respondent's risk sufficiently, then the court must make a CDO.

400 For the reasons that follow, I have come to the conclusion that a supervision order in the terms of the Annexure to these reasons will provide adequate protection of the community if the respondent is released to reside with Ms K at the proposed accommodation in Town A.

401 All of the findings I have set out at [395] and [396] above are relevant to the consideration of whether a supervision order is appropriate. There are a number of factors identified there, and to a greater extent in my detailed analysis of the evidence, which could impinge on the effectiveness of a supervision order. Of particular note are the respondent's failure to fully accept the diagnosis of paedophilia and the risk it presents for him, and his limited insight into the potential impact of other factors on his risk of re-offending. In addition, the respondent's unrealistic belief that he can manage his own risk might make him inclined to be less reliant on the protective measures in the supervision order and to resent the very restrictive regime created by the conditions. The compulsive and impulsive nature of the respondent's exhibitionism, which he acknowledges, may make it difficult for him to avoid committing an indecent or obscene act constituting a serious offence.

402 In considering whether a supervision order would adequately protect the community, the court must take into account any conditions that can be included in the supervision order.[562] The court must also take into account whether the place where the respondent intends to live, and the circumstances in which he will be living there, are suitable to ensure that the supervision order will provide adequate protection of the community. As I have explained above, the effectiveness of the proposed supervision order and the suitability of the proposed accommodation are interconnected issues. The essence of the applicant's argument is that the proposed accommodation is not suitable because it would undermine the effectiveness of the supervision order in circumstances where the respondent continues to have outstanding treatment needs.

403 In my opinion the conditions of the supervision order in the Annexure, which incorporate the amendments I discussed above, address the various issues that have been raised by the experts as risk factors for the respondent. My reasons for reaching that conclusion are set out at [365] - [371] above. In my opinion, they are the minimum conditions that would be necessary to effectively manage the respondent's risk and adequately protect the community.

404 The conditions require the respondent to engage in treatment, both psychological and pharmacological. It is clear from the expert evidence that the respondent's ability to manage his impulsivity and exhibitionism is crucial in managing his risk of more serious sexual offending. I am satisfied, on the basis of Dr Wojnarowska's evidence, that it is a necessary condition of the respondent's release into the community that he be required to comply with a course of anti‑depressant (preferably SSRI) medication, as directed by his CCO, to assist in the treatment of those issues. As I noted earlier, the condition in the Annexure concerning medication is confined to non-hormonal anti-libidinal treatment (which includes SSRI medication), in accordance with Dr Wojnarowska's expert recommendation. It is nevertheless a significant measure in dealing with two aspects of the respondent's risk, namely his libido and his impulsivity, the latter of which is associated in particular with his exhibitionism. The respondent's preparedness to take the medication will be an important indication of his commitment to comply with the supervision order and deal with his risk of reoffending.

405 The proposed conditions also place restrictions and other obligations on the respondent that go well beyond the restrictions and obligations to which he was subject while on parole. On the one hand, that might suggest that his previous successful completion of parole may not be a reliable guide to whether he will comply with the conditions of a supervision order. The more stringent conditions may create greater stress for him and make it more difficult for him to comply. On the other hand, the more extensive and closer degree of supervision and monitoring which the conditions would allow should enable the authorities to detect any non-compliance more readily and to act as necessary to deal with any change in his risk of re-offending.

406 The conditions provide for a substantial degree of monitoring in the community, even if the resourcing for such monitoring may be limited and the efficiency of responses may be reduced, given the geographical location of the respondent's intended residence. I accept that the issues raised by the applicant's submissions in respect of those matters are real, and that there is a potential for the effectiveness of the usual measures for monitoring risk to be compromised because of the location of the residence. I also accept that that the combined effect of outstanding treatment needs and logistical difficulties makes the effective implementation of a supervision order more precarious than if only one of those factors was at play. However, the individual and combined effect of these factors needs to be considered in context.

407 For instance, the applicant's argument in relation to exclusion zones must be considered in the context that Town A does not have any schools, services or amenities where children are likely to be present. In light of Ms Comery's description, it is difficult to envisage the need for exclusion zones in that town. As for Town B and Town C, there might be reason to create exclusion zones in those towns, but both have a police station with officers on duty. While they are not 24-hour stations, the curfew condition could be utilised to ensure the respondent was not in those towns when the police station is not open. In addition, as the respondent submitted, even in the metropolitan area, there is not necessarily an expectation that police would attend the scene and apprehend the respondent immediately, if he has entered an exclusion zone. It is also relevant to consider that, apart from the respondent's very first offence of wilful exposure, his offending has been in or around homes where he was living or visiting, at his workplace (including in his truck) or in a secluded location while fishing, all with girls with whom he was familiar, rather than in public places with strangers. Further, most of the respondent's offending has involved a degree of grooming. The conditions are such that any elevation of risk should be detected at an early stage in treatment or in the supervision process, before grooming could occur.

408 The applicant acknowledged that, if the court concludes that a respondent is a high risk serious offender, but that in all other respects his risk could be managed in the community, the police would need to take a practical approach to the allocation of resources to enable the respondent's risk to be adequately monitored.

409 Although it was not discussed at the hearing, practical solutions could be utilised to overcome, at least to some extent, the difficulties raised in the desktop spatial analysis. For instance, if a curfew is in place, consideration could be given to the police and the CCO contacting the respondent using an audio-visual application to check that he is in the house. That might also be a means of checking who else is at the house, in particular whether any child is in the house. Ms Comery's evidence was that it is a small house (two bedrooms and one bathroom).

410 I have given consideration to whether it ought to be a condition of the respondent's release that there be CCTV cameras installed at the front and rear entrances of the property, connected to a recording device, with conditions that the recording not be erased without approval of WA Police or a CCO. That would allow for the comings and goings at the property to be captured on video, which might alleviate some of the concerns about infrequent compliance checks and monitoring who attends the house. However, I have come to the conclusion that such a requirement is not necessary. A significant consideration in that regard is that I am satisfied that Ms K has been consistent in her indication that she will not have children at the house and there appears to be no reason to doubt her statement to Ms Hasson that she did not allow her grandchildren to come to the house before the respondent was incarcerated on the last occasion.

411 I have come to the conclusion that the location of the proposed accommodation would not prevent the supervision order from providing adequate protection of the community. I am satisfied that the respondent's risk can be adequately managed in the community while he is subject to the conditions of the supervision order in the Annexure, despite the fact he has not yet commenced individual psychological treatment or treatment with SSRI medication, and the combined effect of that with the logistical difficulties referred to be the applicant. In that regard, I accept the opinions of Dr Wojnarowska and Ms Hasson that the respondent could be managed in the community while the SSRI medication and psychological treatment are commencing and in their early stages. It seems to me also that Dr Bannister's opinion about a treatment plan was consistent with that conclusion.

412 Further, given the uncertainty that remains about the impact that the COVID-19 pandemic may have on freedom of movement and interactions the community in the future, I should note that I am satisfied that an adequate level of psychological counselling can be provided to the respondent by audio‑visual means if necessary. However, while the geographical isolation of the proposed accommodation may also require counselling to be delivered in that way from time to time, it would be preferable for the respondent to attend in person whenever possible, as he has said he is willing to do.

413 To the extent that it is considered necessary to monitor the respondent's travel away from Town A in the early stages, condition 53 of the supervision order allows the CCO to require the respondent to give notice of such travel.

414 As I noted above, the respondent has indicated a desire to operate a workshop business in Town B. The fact that he has an intention to pursue employment is a positive factor, but, given the intended location, it would need to be managed in light of the issues I outlined in discussing the condition concerning travel to Town B (condition 54 in the Annexure). The respondent would be required to have approval from his CCO for any travel to Town B. This might also be an instance in which exclusion zones could be used to prevent the respondent from going to places where his risk of reoffending might be elevated.

415 Finally, on the general question of whether the supervision order in the Annexure will provide adequate protection of the community, assuming adequate structures and services are in place, as discussed above, I have taken into account the imminence of the respondent re‑offending. Both Dr Wojnarowska and Ms Hasson were of the opinion that the single most important factor that would affect the imminence of the risk that the respondent would sexually re-offend would be close physical proximity to a child. As Ms Hasson said, other dynamic factors would also be relevant, but, as Dr Wojnarowska noted, if the respondent were subject to a supervision order and had no opportunity to see children or be in their presence, then the risk would not be imminent. In my opinion, it is a relevant consideration in this regard that the respondent did not offend for a period of more than 10 years between his offending in 1998 - 2000 and his last offences in 2011.

416 The question of whether the respondent will substantially comply with the standard conditions of the supervision order requires consideration of all of the circumstances, both personal to him and external, which will affect him. External circumstances include the conditions of the supervision order, the available means to monitor, supervise and treat him, and any pro-social support available to him.

417 Matters personal to the respondent include his attitude towards the relevant legislation, these proceedings and the conditions of a supervision order. While the respondent's negative comments to Dr Bannister about those matters are a relevant consideration, I am satisfied on the basis of the evidence of Dr Wojnarowska and Ms Hasson that comments of that kind are part of the respondent's tendency to vent, raise grievances and perhaps even be contrarian, but that, as Ms Hasson put it, he 'does settle and change his views' when he is challenged and is required to reason about the issue.[563] For the reasons set out at [321] - [324] above, I do not consider that the comments made to Dr Bannister reflect an intention not to comply with the conditions of a supervision order. Nor do I regard them as indicative of a mindset that would predispose him to deliberately flout the conditions or compromise his compliance in some other way. On balance, his comments to the experts have indicated that he is prepared to comply if the court finds that a supervision order is necessary.

418 I have come to the same conclusions, on the same basis, about the respondent's comments to Ms Hasson about psychologists and to Ms Comery about the ACC staff in Town C, where he will be required to report. Ms Hasson said she thought the rapport she was able to build with the respondent might be regarded as indicative of his capacity to work with a psychologist. Ms Comery said the respondent indicated a desire to make a fresh start with the ACC office in Town C.

419 I am satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of the supervision order, in the relevant sense. I am also satisfied he is likely to comply with the balance of the conditions. In coming to those conclusions, I have taken into account the respondent's attitude to the conditions of the supervision order, his capacity to comply with the conditions and the measures that are in place to ensure he would substantially comply. Apart from the reasons I have already outlined in this section, which inform this issue, I rely on the following matters.

420 The respondent has served a significant term of imprisonment and has remained in custody on an interim detention order for a further significant period. Given his age, it might be expected that the prospect of a further term of imprisonment or indefinite detention would weigh more heavily on him now. Those are real potential consequences in the event he were to contravene a condition of the supervision order.

421 Secondly, for the reasons I gave earlier concerning Ms K, I am satisfied she will provide support to the respondent that will augment in a meaningful way the support he will receive from his psychologist and his CCO to ensure he remains compliant with the conditions of the supervision order. Her statement that she is prepared to be part of the risk management team suggests a commitment to ensuring the respondent remains compliant for his benefit as much as for the protection of the community.

422 Thirdly, the respondent has previously completed parole periods successfully. His re-offending after doing so indicates a failure to rehabilitate, including a failure to internalise what he learnt during the CBSOTP, but it does not detract from the conclusion that the respondent was compliant with supervision.

423 Fourthly, he has exhibited compliant behaviour while in custody. While I appreciate that is a very different setting, it is nevertheless the most recent indication of the respondent's attitude towards persons in authority.

424 Of course, the respondent would be expected to comply strictly with the conditions of the supervision order, in a manner and to an extent that is consistent with achieving the adequate protection of the community by the management and mitigation of his risk. While the paramount purpose of the order is to protect the community, it also provides the respondent with the means by which he can maintain his liberty and avoid putting himself at risk of further sexual offending against female children, which would inevitably result in a further term of imprisonment. He has an opportunity to receive treatment and support to enable him to achieve a reduction of his risk in due course to a point where it can be self-managed by him without the need for restrictions to protect the community.

425 The respondent must also understand that offending involving indecent exposure, without touching, will nevertheless constitute a contravention of the order. Regarding himself simply as 'a flasher' is not only wrong; it is a dangerous mindset that will put him at risk of further offending and a contravention of the supervision order. If he contravenes the order, then, in light of the findings I have made concerning his risk, he would face the prospect of a CDO.

426 As I noted in Hart, satisfaction that the respondent will substantially comply with the standard conditions of a supervision order is a necessary finding before a supervision order can be made, but it is only one consideration in determining whether such an order will provide adequate protection of the community.[564] For all of the reasons outlined in this section, I am satisfied that the supervision order in the Annexure will provide adequate protection of the community against the otherwise unacceptable risk that the respondent would commit a serious offence. Therefore, the appropriate restriction order in this case is a supervision order.

427 Both Dr Wojnarowska and Ms Hasson considered that a period of at least 5 years would be necessary to enable the benefits of psychological counselling to take effect with the goal of reducing the respondent's risk of sexual reoffending to an acceptable level without restrictions. The distinct impression I have is that it is unlikely the respondent's risk would be sufficiently reduced in that time. Indeed it remains to be seen whether it ever gets to the point where he can self-manage his risk without restrictions.

428 Under s 36 of the HRSO Act, the State may apply for a restriction order in relation to an offender who is subject to a supervision order that is to expire within one year. There is provision, therefore, for the State to apply for a further supervision order if, approaching the end of the supervision order I make, there is evidence that the respondent's risk is still at a level where there is a need for a further period of restriction I order to provide adequate protection of the community.

429 I have taken into account that the respondent's last offences were committed after a period of about 10 years without offending. That might suggest that a risk may persist for that order of time, without it being realised, but that the protection of the community would warrant a lengthy period of restriction. However, the respondent was not subject to a supervision order during that time and did not have the benefit of long-term individual treatment.

430 I have also taken into account that the respondent has been subject to interim detention order since [REDACTED].

431 I have come to the conclusion that, at this stage, the appropriate duration of the period for which the respondent should be subject to the supervision order is 5 years, and the respondent's circumstances can be reviewed by the authorities in the final year of that period to determine whether a further order is necessary.

(2) A supervision order has effect in accordance with its terms ‑

(3) The date from which a supervision order has effect must not be earlier than 21 days after the date the order is made unless the court is satisfied that the implementation of the order from an earlier date is practically feasible.

433 Given that the accommodation to which the respondent would be released is a private residence he has previously shared with Ms K, it is possible that the implementation of the order could occur earlier than 21 days from the making of the supervision order.

434 However, as I noted earlier, approaching the delivery of this judgment, the Perth region is in lockdown due to the COVID-19 pandemic. In those circumstances, I will hear from the parties as to the appropriate commencement date having regard to any impact the lockdown may have on implementation of the order.

435 Accordingly, I rescind the interim detention order made on [REDACTED], effective upon the coming into operation of the following order.

436 I order that, when not in custody, the respondent is to be subject to conditions in the terms of the Supervision Order annexed to these reasons, and that the order is to have effect for a period of 5 years from a date to be set after I have heard from the parties.

437 Ms Comery gave evidence that, if the address (the town, street address and number) of the respondent's proposed accommodation were to be published, it could put the safety of the respondent and his partner, and persons from any agencies who visit the address at risk, because of the potential for vigilante action.[565] That could render the property unsuitable for use as the residential accommodation under the supervision order, with the consequence that the implementation of the supervision order could be compromised. I am aware that there is an historical basis for these concerns, and that they are real. There is, of course, a public interest in members of the community knowing whether they are at risk from a high risk serious offender. However, the conditions of the supervision order allow for the authorities to make disclosure of the respondent's status to other persons, and it would be expected they would exercise judgment in that regard to ensure the adequate protection of the community.

438 Ms Comery said that COMU would support full suppression of details that would identify the respondent's residential address. I am satisfied that is appropriate for the reasons outlined. Accordingly, all references to the relevant location have been anonymised in these reasons (references to Towns A, B and C) and are redacted in the Annexure.

439 Further, I order that the publication of the address, including the town where the respondent will be residing when released, according to the Supervision Order made 2 July 2021, is prohibited.

440 To protect the privacy of the victims of the respondent's offending, the names of the respondent and the victims have also been anonymised in these reasons.

IN THE MATTER of the High Risk Serious Offenders Act 2020 (WA)

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The Court, having found pursuant to section 7 and section 48(1) of the High Risk Serious Offenders Act 2020 (WA) that there is an unacceptable risk that the Respondent would commit a serious offence if not subject to a continuing detention order or a supervision order, orders that the Respondent be the subject of a supervision order pursuant to section 48(1)(b) of the High Risk Serious Offenders Act 2020 (WA) (High Risk Serious Offenders Act), for a period of 5 years from [DATE TO BE DETERMINED AT TIME OF JUDGMENT], on the following conditions:

1. Report to a Community Corrections Officer (CCO) at the place and within the time stated in the order and advise the officer of your current name and address.

2. Report to and receive visits from, a CCO as directed by the court.

3 Notify a CCO of every change of your name, place of residence, or place of employment at least two business days before the change happens.

4. Be under the supervision of a CCO which includes complying with any reasonable direction of the officer (including a direction for the purposes of s 31 or s 32 of the High Risk Serious Offenders Act).

5. Not leave or stay out of the State of Western Australia without the permission of a CCO.

6. Not commit a serious offence as defined in s 5 of the High Risk Serious Offenders Act during the period of the Order.

7. Be subject to electronic monitoring under s 31 of the High Risk Serious Offenders Act.

8. Take up residence at [REDACTED] and to spend each night at that address or at a different address only if such different address is approved in advance by a CCO assigned to you.

9. Report to a CCO at your nominated release address within normal business hours on the day of release from custody under this Order.

10. Be under the supervision of a CCO, report to and receive visits from a CCO at times and at places as directed by the CCO, and comply with the lawful orders and directions of a CCO.

11. Not commence or change paid or unpaid employment, education, training or volunteer work without the prior approval of the CCO.

12. Consult and engage with any psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO.

13. Comply with the requirements of all programmes designed to address your offending behaviour and/or risk of serious sexual re-offending, as directed by a CCO.

14. Report to the [REDACTED] Local District Manager at the [REDACTED] within 48 hours of your release from custody and thereafter report to and receive visits from Police at times and at locations as directed by the [REDACTED] Local District Manager or his/her delegate.

15. Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004 (WA).

16. If requested, permit Police Officers to enter and search your residence and/or vehicle, and/or your person for the purpose of monitoring your compliance with your obligations under this Order and allow the seizure of any such items that the Police Officer believes to contravene the conditions of the Order.

17. Remain at your premises and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the High Risk Serious Offenders Act.

18. When requested, inform Police of the names of all of your internet service providers, all mobile or landline telephone services used by you and all internet user names or identities used by you.

19. Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this Order, including confidential information.

20. Allow the CCO, WA Police, or other persons or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history.

21. Have no contact, directly or indirectly, with the victims of your sexual offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-Offender Mediation Unit of the Department of Justice.

22. Unless contact with victims is permitted pursuant to condition 21, immediately withdraw physically from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and you must avert your gaze from such victim at all times.

23. Report to the CCO and WA Police any direct or indirect contact with the victims of your sexual offending within 48 hours of such contact occurring.

24. Not commit any criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments.

25. Not commit an offence under s 202, s 203, s 204 or s 557K Criminal Code 1913 (WA).

26. Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA).

27. Be subject to a curfew, pursuant to s 32 of the High Risk Serious Offenders Act, such that you are to remain at and not leave your approved address as directed by a CCO from time to time.

28. When subject to a curfew under this Order, present yourself for inspection at the front door or curtilage of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew.

29. When subject to a curfew under this Order, ensure that all persons present in the residence, who may answer the telephone or door, are aware of your obligations, and you must request their assistance to enable you to comply with your obligations by informing you of any attempts to contact you by persons monitoring your compliance with the curfew.

30. Attend any medical practitioner, psychologist, psychiatrist or counsellor as directed by the supervising CCO.

31. Undertake any medication regime, including medication for non-hormonal anti-libidinal treatment (such as Selective Serotonin Reuptake Inhibitor anti-depressants), as directed by the CCO in consultation with a medical practitioner(s) and comply with all testing to monitor your compliance with that treatment as directed by a CCO.

32. Comply fully with any treatment prescribed pursuant to condition 31.

33. Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose to the Department of Justice details of medical treatment and opinions relating to your level of risk of re-offending and your compliance with treatment.

34. Permit any medical practitioner, psychologist, psychiatrist or counsellor to advise the CCO immediately if they become aware, or suspect, that you have or intend(ed) to cease undergoing pharmaceutical medication contrary to the advice of a medical practitioner, or if you appear to have ceased to consult with that medical practitioner on such treatment.

35. Maintain a daily diary of your movements, activities and associations if and as directed by the CCO and present such diary to the CCO and/or a Police Officer upon request.

36. Not associate with any person known by you to have committed a serious offence (as defined in s 5 of the High Risk Serious Offenders Act), unless such association is authorised in advance by the CCO.

37. Have no contact with any female child under the age of 18 years, whether such contact is in person, in writing, by telephone or by electronic means, unless:

(a) The contact is authorised in advance by the CCO and such contact is supervised at all times by an adult approved in advance by the CCO;

(b) The contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction, and another adult is present.

('Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication)

38. Where any unsupervised contact with a female child under the age of 18 years is initiated by the child, unless the contact is permitted under condition 37, you must withdraw immediately from the presence of the child;

39. Provide details of any contact with a female child under the age of 18 years both to your CCO and to the Police on the next occasion you report to that person or agency;

40. Report at your next contact with your CCO the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship by you with any person;

41. Report at your next contact with your CCO and Police any association or relationship by you with a person who has a child or children under the age of 18 years in their care either full time or part time;

42. Not form any domestic relationship with a person who has a child or children under the age of 18 years in their care either full time or part time, without prior approval of a CCO;

43. As directed by a CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence a friendship, domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer;

44. Not conduct computer searches for, collect, access, or be in possession of in either electronic or permanent form, images of children including drawings or sketches, whether indecent or not, with the exception of images of your immediate family that are not indecent images if approved in advance by a CCO. Possession of such images depicting a child or children on items such as household items, may be authorised by a CCO;

45. Not be in possession of any children's toy, game or confectionary that could reasonably be perceived to be capable of being an enticement to children, unless such possession is for a legitimate purpose;

46. Have no contact with, membership of or affiliation with clubs, associations or groups where membership includes children, unless approved in advance by a CCO; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer;

47. Not to attend concerts, events or venues frequented by children under 18 years, without the prior approval of a CCO;

48. Advise a CCO of every computer, telecommunication and/or electronic device capable of storing digital data or information possessed or used by you, whether or not it is capable of being connected to the internet, and the location of that device;

49. Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 48, without prior approval of the CCO;

50. Enable device locking or password access of your computer, telecommunication and/or electronic devices, and you must not provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device referred to in condition 48 or any online accounts, to any person other than a CCO or Police Officer;

51. Upon request, permit a CCO or WA Police at any location nominated by them, to access any computer, telecommunication and/or device capable of storing digital data, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and you must provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device; Should any other entity be required to access a device for instances such as technical advice, approval must be sought in advice from a CCO;

52. Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised by another person, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunications and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police.

53. As and when directed by a CCO, you are to advise the CCO prior to leaving the town of [REDACTED], unless for a medical emergency, in which case you should advise the CCO as soon as practicable.

54. Not to attend the town of [REDACTED], unless approved by a CCO.

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I have received a copy of this order. I have had explained to me and understand the effect of this Order and what may happen if I contravene it.

Signed by the Respondent ___________________________________

In the presence of: ________________________________

Name and address: ________________________________

________________________________

Date: ________________________________

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Section 7 and s 17 of the DSO Act.

[2] It is sufficient at this stage to note that, by s 3 of the DSO Act, a 'serious sexual offence' was an offence which came within the meaning of 'serious sexual offence' in s 106A of the Evidence Act 1906 (WA), which referred to offences mentioned in pt B of sch 7 of the Evidence Act for which the maximum penalty is 7 years' imprisonment or more. The offences of which the respondent has been convicted included sexual penetration of a child under the age of 13 years, indecently dealing with a child under the age of 13 years, and indecently dealing with a child over the age of 13 years, but under the age of 16 years, all of which were serious sexual offences for the purposes of the Evidence Act.

[3] HRSO Act s 2(1)(a) and Compilation table.

[4] The term 'commencement day' has relevance for the purposes of s 124, and is defined in s 122 to mean 'the day on which this section comes into operation', which, by virtue of s 2(1)(c) and the proclamation referred to below, was 26 August 2020.

[5] High Risk Serious Offenders Act 2020 Commencement Proclamation 2020, cl 2 (SL2020/131; Government Gazette, WA, 14 August 2020, p 2619).

[9] HRSO Act s 3 (definition of 'restriction order'), s 26 ('continuing detention order') and s 27 ('supervision order'). In The State of Western Australia v ZSJ [2020] WASC 330 (ZSJ), I explained that, in the DSO Act, the meaning was to be ascertained from s 3 (the definitions section), which referred in respect of each term to the later provisions that authorised the making of the orders (in particular s 17(1)(a) and (b)). The description of the orders in those later provisions gave content to the meaning of those terms.

[12] ZSJ [5]. See also The State of Western Australia v CF [2021] WASC 20 (CF) [30], [35]; The State of Western Australia v Narrier [No 6] [2020] WASC 349 (Narrier [No 6]) [4], [29] ‑ [30]; The State of Western Australia v MBW [No 7] [2020] WASC 404 (MBW [No 7]) [29] ‑ [30]; The State of Western Australia v ACW [No 2] [2020] WASC 480 (ACW [No 2]) [6]; and The State of Western Australia v Pindan [No 5] [2021] WASC 72 (Pindan [No 5]) [25].

[13] On 23 December 2020, pursuant to s 11(4) of the HRSO Act, the State Solicitor's Office took over carriage of the matter from the DPP.

[14] See ZSJ [30] ‑ [34]. See also CF [34].

[15] ZSJ [31]. See also CF [31]; Narrier [No 6] [4], [29] ‑ [30]; MBW [No 7] [29] ‑ [30]; ACW [No 2] [6]; and Pindan [No 5] [25].

[20] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 (Williams) [63] - [65].

[22] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 (GTR) [27] (Steytler P & Buss JA).

[23] GTR [28] (Steytler P & Buss JA).

[24] GTR [34] (Steytler P & Buss JA).

[25] The State of Western Australia v Ryan [2021] WASC 38 at [4].

[26] The State of Western Australia v Latimer [2006] WASC 235 [49].

[27] Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14].

[30] HRSO Act s 3 (definitions) and s 30(2).

[31] DSO Act s 18(1)(d) referred to 'section 19A or 19B', which correspond to s 31 and s 32 of the HRSO Act.

[32] DSO Act s 18(1)(f) referred to 'a sexual offence as defined in the Evidence Act 1906 section 36A', which included offences that were not within the meaning of 'serious sexual offence' in the DSO Act. Some of the offences referred to in s 36A of the Evidence Act are not included in the definition of 'serious offence' in the HRSO Act.

[33] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 (Hart).

[34] The State of Western Australia v Corbett [No 8] [2021] WASC 171 [48] (Corbett); The State of Western Australia v PAS [No 3] [2021] WASC 117 [17]; CF [61].

[35] The State of Western Australia v Corbett [No 8] [2021] WASC 17 [519].

[36] Williams [86] (Wheeler JA, Le Miere AJA agreeing).

[37] HRSO Act s 84(3) (previously DSO Act s 42(2), which was in relevantly identical terms).

[38] HRSO Act s 84(4) and (5) (previously DSO Act s 42(3) and (4), which were in relevantly identical terms).

[40] The Supreme Court and District Court proceedings referred to in this paragraph were in respect of the sexual offending to which I have referred in broad terms, and will be discussed in detail below.

[66] For instance, the Completion Report from the Intensive Sex Offender Treatment Program, in which the respondent participated in 2015, notes that he appeared to experience 'significant shame regarding his wife's same sex attraction and declined to discuss it in group', indicating also that he considered his wife 'dead ... don't think about her': BOM 505.

[74] See [141] below.

[76] BOM 532 [3] and 570 [66] - [67].

[82] BOM 537 [24]; BOM 545 [75]; BOM 577 [109].

[113] BOM 24; BOM 245; BOM 267. The timing of the respondent's release on parole appears to have been a function of the sentencing regime in force at the time, whereby one third of the sentence was immediately remitted, and an offender was eligible to be released on parole after serving half of the remainder of the sentence imposed (having regard to the length of the sentence imposed on the respondent).

[149] Criminal Code s 329; HRSO Act sch 1 div 1.

[152] BOM 453; BOM 553 [7].

[197] ts 103; BOM 542 [55].

[198] ts 103; BOM 542 [55].

[199] ts 103 BOM 542 [55].

[200] BOM 555 [20]-[21]. That facilitator was female, but Ms Hasson said that, as best as she could understand, both facilitators were female, so she did not think the respondent's problem with the facilitator was gender‑based: ts 103.

[205] ts 57; BOM 571 - 572 [76].

[206] ts 57; BOM 571 - 572 [76].

[208] ts 57; BOM 571 - 572 [76].

[210] 'Qualified expert' was defined in s 3 of the DSO Act to mean a psychiatrist or a qualified psychologist, being a psychologist holding a qualification or accreditation prescribed for the purposes of the definition. The term is defined in similar terms under s 3 of the HRSO Act, except that 'qualified psychologist' is more specifically defined to mean 'a psychologist (as defined in the Mental Health Act 2014 section 4) who holds a master's degree or higher in psychology'. Ms Hasson holds a master's degree in forensic psychology: BOM 531.

[225] See [129] above.

[228] See [224] below.

[248] See [228] below.

[250] BOM 545 [73]; BOM 573 [86]; ts 48.

[261] See [89] above.

[267] BOM 546 [88]; BOM 575 [96]; ts 86.

[272] BOM 543 [61]; BOM 575 [95]; ts 80.

[276] Ms Hasson said her wording was from the 2016 version: ts 80.

[284] BOM 543 [60], ts 81; BOM 575 [95], ts 49.

[305] ts 52 - 53. See [172] above.

[349] See [203] ‑ [204] above.

[351] ts 55. Although Dr Wojnarowska initially said the factors 'have not been addressed', she clarified that by saying the respondent had not benefitted. In context, Dr Wojnarowska was not suggesting the factors were not dealt with in the programmes, but that they need to be addressed further, because the respondent has failed to retain the content or gain adequate understanding of the relevant factors.

[368] See, for instance, The State of Western Australia v Rao [2019] WASC 93 (Rao) [14], [137] ‑ [138] and The State of Western Australia v ACW [2020] WASC 177 [142] ‑ [143].

[386] See [151] above.

[405] See [29] above.

[408] ts 67; BOM 579 [127].

[435] ts 100; BOM 550 at [104].

[465] BOM 583. I note that Ms Comery reported that the respondent referred to only one CCO with whom he had a grievance.

[466] See [141] above.

[467] See [314] above.

[471] The proposed condition also specified offences that were not serious sexual offences (as defined) under the DSO Act, but are now serious offences under the HRSO Act.

[476] See [165] and [182] above.

[492] See [177] above.

[493] See [204] above.

[502] DSO Act s 18(1); HRSO Act s 30(2). The only difference between the statutes in this regard is that s 18(1)(f) of the DSO Act provided for a condition that the person 'not commit a sexual offence as defined in the Evidence Act 1906 section 36A during the period of the order', whereas s 30(2)(f) of the HRSO Act provides for a condition that the person 'not commit a serious offence during the period of the order'.

[520] BOM 585. The analysis suggested that police involvement might have to be limited to attending to alleged criminal offences or confirmed breaches of conditions. However, counsel for the applicant agreed, in his closing address, that such police involvement is what would normally be the case for other high risk serious offenders.

[547] See [268] above.

[562] DPP (WA) v Griffiths [2015] WASC 393 at [103].

[563] See [322] above.