THE STATE OF WESTERN AUSTRALIA -v- ACW [2020] WASC 177 (21 May 2020)

3 At the time of the preliminary hearing, the respondent was serving a sentence of imprisonment which was to end on 30 March 2020. In the absence of any intervening event that would require him to remain in custody beyond that date, he would have been released from custody on that date.

4 The application was filed on 22 November 2019. It was supported by an affidavit affirmed on 21 November 2019 by Fiona Marie Clare, a lawyer employed by the Office of the Director of Public Prosecutions for Western Australia. Attached to the affidavit were materials relating to the respondent's convictions for sexual offences, including transcripts of criminal proceedings in respect of those offences, a pre‑sentence report prepared for one of those proceedings, and subsequent reports concerning the respondent's treatment for the purposes of rehabilitation whilst in custody. The attachments also included a psychiatric report and a psychological report prepared for proceedings in respect of violent, but non‑sexual, offending in 2014.

5 The orders sought by the applicant are in terms consistent with s 14 of the Act. They include an interim detention order that would require the respondent to be detained beyond the end date of his current sentence, until the conclusion of proceedings under the Act.

6 The preliminary hearing was conducted before me on 5 February 2020. It was conceded on behalf of the respondent that the materials before the court provided reasonable grounds for believing that the court might find the respondent to be a serious danger to the community. Having considered the materials, I was satisfied the concession was properly made.

7 The respondent did not submit that an interim supervision order would be a suitable option for the respondent when he became eligible to be released on 30 March 2020. I was satisfied that it was appropriate to make an interim detention order until the application for a Division 2 order is determined.

8 In the circumstances I made the orders sought by the applicant and said I would publish reasons later. These are my reasons for making the orders.

9 The application is made pursuant to s 8(1) of the Act, which provides that such an application may be filed in relation to a person:

(a) who is under a custodial sentence for a serious sexual offence; or

(b) who has been under a custodial sentence for a serious sexual offence and who, at all times since being discharged from that sentence, has been under a custodial sentence for another offence or other offences.

10 'Serious sexual offence' is defined in s 3 the Act. It is sufficient for present purposes to say that it includes the sexual offences for which the respondent has served and may be serving terms of imprisonment, which I will identify shortly.

11 Where the respondent is in custody, the application cannot be filed unless there is a possibility that he might be released from custody within the period of one year after the application is made.[2]

The sentences of imprisonment being served by the respondent

12 On 24 October 2016, the respondent was sentenced in the District Court in [Redacted] for the offences of aggravated assault occasioning bodily harm (AAOBH) and aggravated sexual penetration without consent (which is a serious sexual offence for the purposes of the Act). For the AAOBH (which was count 1 on the indictment) he was sentenced to 12 months' imprisonment. For the aggravated sexual penetration without consent (which was count 2), he was sentenced to 3 years and 6 months' imprisonment, cumulative on the sentence for the AAOBH. That resulted in a total effective sentence of 4 years and 6 months' imprisonment, which was backdated to 1 July 2015 (i.e. it was taken to have commenced on that date), being the date on which the respondent had gone into custody upon his arrest.[3] The sentencing judge ordered that the respondent be eligible for parole.

13 On 23 December 2016, the respondent was sentenced in the Magistrates Court in [Redacted] for a total of 11 offences, consisting of a number of breaches of a violence restraining order (VRO), breaches of an intensive supervision order (ISO) and a conditional release order, two counts of obstructing police, an offence of carrying an article with intent to cause fear and two minor drug offences. For each of the breaches of the ISO and VRO and the offences of obstructing police, the respondent was sentenced to 3 months' imprisonment. It appears from the respondent's criminal record that all of those sentences were to be served concurrently, but the term for the breach of the ISO was ordered to be served cumulatively upon the sentence the respondent was already serving, being the sentence imposed on 24 October 2016 in the District Court. The ISO had been imposed on 23 December 2014 for an offence of AAOBH committed by the respondent on his partner, who was also the victim of the offences for which the respondent was sentenced on 24 October 2016.

14 The effect of the two court outcomes on 24 October 2016 and 23 December 2016 was that the respondent was required to serve a total of 4 years and 9 months' imprisonment from 1 July 2015.

15 The respondent's criminal record does not indicate whether a parole eligibility order was made in respect of the terms of 3 months' imprisonment imposed in the Magistrates Court. Ordinarily, a parole eligibility order cannot be made in respect of a term of imprisonment that is less than 6 months, but where the offender is serving a parole term at the time the sentence is imposed (as the respondent was here), a parole eligibility order can be made.[4]

16 If no parole eligibility order was made in respect of the sentence imposed on 23 December 2016, then the respondent would have commenced to serve that term of 3 months' imprisonment on the day it was imposed, and service of the sentence imposed on 24 October 2016 would have been suspended until the term of 3 months had been completed.[5] Given the order in which the sentences were imposed on 24 October 2016, the effect would be that the respondent then served the term for the AOBH and is now under a custodial sentence for a serious sexual offence, and therefore within s 8(1)(a) of the Act.[6]

17 However, even if that were not so, and the respondent is now serving part of the sentence imposed on 23 December 2016 or the sentence for the AOBH, the respondent would come within s 8(1)(b) of the Act, in that he has been under a custodial sentence for a serious sexual offence and, 'at all times since being discharged from that sentence, has been under a custodial sentence for another offence or other offences'.

18 Therefore, as the respondent is to be released on 30 March 2020 the application has been made within the time frame in s 8 (i.e. within one year of when he might be released) and is properly before the court as a preliminary hearing under div 1 of the Act.

19 Section 11(1) of the Act provides that, after an application is filed under s 8, a date must be fixed for the matter to come before the court for a preliminary hearing. Section 11(3) provides that the main purpose of the preliminary hearing conducted pursuant to s 14(1) is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might, under s 7(1), find that the offender is a serious danger to the community.

20 Section 14(1) of the Act provides:

At a preliminary hearing, if the court is satisfied that there are reasonable grounds for believing that the court might, under section 7(1), find that the offender is a serious danger to the community, the proper officer of the court must, subject to subsection (2A), fix a date for the hearing of the application for a Division 2 order.

21 The reference to s 7(1) draws attention to the matters about which the court must be satisfied before it could find that the respondent is a serious danger to the community. It provides that, before the court can make that finding, it 'must be satisfied that there is an unacceptable risk that, if [the respondent] were not subject to a continuing detention order or a supervision order, [he] would commit a serious sexual offence'. Section 7(2) provides that the court must be satisfied of those matters to 'a high degree of probability', on 'acceptable and cogent evidence'.

22 The court will be required to make the determination under s 7(1) having regard to the considerations set out in s 7(3), which are not exclusive. Those considerations include historical factors in respect of the respondent's offending and his antecedents generally, in particular, whether he has a propensity to commit serious sexual offences and the pattern of any such offending. The court must also consider whether the respondent has addressed the causes of his offending behaviour, and the effect on him of any rehabilitation programme. It must also have regard to any report that a psychiatrist prepares, as required by s 37 of the Act, and any other medical, psychiatric, psychological or other assessment of the respondent. Finally, the court must have regard to the risk of the respondent committing a serious sexual offence if he were not subject to a continuing detention order or a supervision order, and the need to protect members of the community from that risk.

23 However, the question for the court at this stage is whether there are reasonable grounds for believing that the court might make a finding, on the basis set out in s 7, that the respondent is a serious danger to the community. It is concerned with the possibility that such a finding may be made, not whether it will be made. In that respect, while the court is exercising a judicial function, not an administrative function, and is permitted to scrutinise the evidence to determine whether the threshold is met,[7] the preliminary hearing does not involve the weighing of evidence for the purpose of making findings of fact.

24 The principles applicable on a preliminary hearing under s 14 of the Act were discussed by McKechnie J in Director of Public Prosecutions (WA) v Free,[8] and by Simmonds J in Director of Public Prosecutions (WA) v Dodd.[9] Given the position adopted by the respondent in this case, it is not necessary for me to canvas those principles in any detail.

25 In Free, McKechnie J characterised the threshold question as follows:[10]

At a preliminary hearing a judge must have a belief in the possibility the later court will be satisfied to a high degree of probability that a person is a serious danger to the community. It is a threshold that must be crossed before a judge can appoint psychiatrists to undertake an evaluation.

26 As Simmonds J also indicated in Dodd, although s 14 directs attention to s 7 and necessarily to s 7(3), it is conceivable that a person may be found to be a serious danger to the community on the basis of any one of the considerations in s 7(3),[11] although the last two considerations under that subsection, namely the risk of the respondent committing a serious sexual offence and the need to protect members of the community from that risk, would necessarily be informed by the evidence coming under at least one of the other considerations. It is sufficient to say that, at a preliminary hearing, the respondent's criminal record alone might provide reasonable grounds for concluding that a later court might be persuaded that the offender is a serious danger to the community. The absence of a psychiatric report under s 37 of the Act or of any other medical, psychiatric or psychological assessment, would not necessarily preclude that conclusion.

27 In this case, there is information that goes beyond the respondent's prior offending, as appears in the next section of these reasons.

28 Although it was conceded by the respondent that the threshold under s 14 of the Act has been met, it is still necessary for me to examine the evidence and make the necessary findings in respect of which I must be satisfied under that provision.

29 If I am satisfied that there are reasonable grounds for believing that the court might find, under s 7(1), that the respondent is a serious danger to the community, then, subject to an exception that is not relevant in this case, a day must be fixed for the hearing of the application for a Division 2 order and I must make an order under s 14(2) that the respondent undergo examination by two qualified experts, one of whom is to be a psychiatrist, for the purposes of preparing reports to be used on the hearing of the application. On the application of one or both of the parties, I may also order that a person or body named by the court prepare a report on questions or topics set out in the order. If there is a prospect that the offender might be released from custody before the application is finally decided, I can make an order that the respondent be detained in custody for a period stated in the order (referred to as an interim detention order),[12] or I can release the respondent on an interim supervision order if he is not in custody at the time the order is made.[13]

30 Given the circumstances of this case, it is not necessary to discuss the considerations that would affect the decision whether to make an interim detention order or an interim supervision order.

31 As I noted earlier, the application is supported by Ms Clare's affidavit. The materials attached to the affidavit include information in respect of the respondent's background, including his criminal history. They include statements of material facts for various offences of which the respondent has been convicted (including the respondent's serious sexual offending), transcripts of video recorded interviews conducted by the police with the respondent, and transcripts of sentencing in the Children's Court in 2010 and 2011 and in the District Court in 2016.

32 The materials also include a psychological report and a psychiatric report prepared in 2014 for the sentencing of the respondent in the [Redacted] Magistrates Court on 23 December 2014 for the offence of AAOBH committed on his partner, with whom he was in a domestic relationship, and two breaches of a protective bail condition that were intended to protect his partner from him.

33 The materials also include a pre‑sentence report prepared for the sentencing on 24 October 2016, a Treatment Assessment Report dated 1 February 2017 and a Program Completion Report dated 9 February 2018 prepared by the facilitators of the Pathways Program in which the respondent participated at the [Redacted] Prison from 5 October 2017 to 19 December 2017.

34 Finally, the materials also include a parole assessment report dated 22 February 2018 and an Individual Management Plan dated 23 April 2018 prepared in respect of the respondent after he was denied release on parole by the Prisoners Review Board.

35 I will provide further details of the reports as necessary in the course of these reasons.

36 The respondent concedes that there are reasonable grounds for believing that the court might find, under s 7(1), that the respondent is a serious danger to the community.

37 In those circumstances, while it is necessary for me to be satisfied independently that there is a proper basis for the belief and to provide reasons, it is not necessary for me to canvass in any detail the respondent's history of offending and the assessments that have been made of his risk of committing a serious sexual offence in the future. As will appear below, I am satisfied the concession is properly made, having regard to the materials tendered in the proceedings. I will provide brief reasons by reference to the following considerations under s 7(3):

(1) The respondent's antecedents and criminal record;

(2) The nature of the respondent's offending and what that says about his propensity for committing a serious sexual offences;

(3) The psychological and psychiatric reports previously prepared in respect of the respondent for the purposes of sentencing proceedings;

(4) The outcome of the respondent's participation in the Pathways Program, which was the only rehabilitation programme undertaken by the respondent prior to the hearing; and

(5) The parole assessment made in respect of the respondent on 22 February 2018.

38 Section 7(3)(g) of the Act requires the court to have regard to the respondent's antecedents and criminal record. Information in respect of his background is set out in detail in the psychological and psychiatric reports prepared in 2014 and the pre‑sentence report prepared in 2016, as well as in the sentencing transcripts. The following summary is sufficient for present purposes.

39 The respondent is a 25‑year‑old male. He is an Aboriginal man who was born and raised in [Redacted], although he spent part of his childhood in [Redacted]. He has five siblings from his parents' union and a number of other siblings from his parents' previous relationships.

40 The respondent has previously described growing up in a household that 'vacillated between stability and alcohol-fuelled violence'.[14] Both of his parents at times abused alcohol, which resulted in his father being violent to his mother. He has said that this led to his mother and his siblings staying at a women's refuge. The respondent has been inconsistent in what he has said about his mother. To Mr Wszola, the psychologist who examined the respondent in 2014, the respondent described his mother in positive terms, but also said that she spent a lot of time gambling. The respondent told Dr Bala, the psychiatrist who examined him in 2014, that his father raised the children, as his mother would be 'partying' in other parts of Australia and that her absence 'tore [him] apart'.[15] The respondent told the facilitators of the Pathways Program, which he completed in 2017, that his mother was a 'good woman', but she was a 'drinker'.[16]

41 Despite the references to alcohol abuse and domestic violence, the respondent told Dr Bala that he had many happy memories of childhood.[17]

42 The respondent's father had an accident in 2000, which resulted in him being confined to a wheelchair. That caused sadness to the respondent, as he was close to his father.[18]

43 The respondent's parents separated in 2001 or 2002,[19] when the respondent was about 7 or 8 years of age. He remained living with his mother initially, but she found it hard to provide stable accommodation and proper supervision, and the respondent eventually moved to live with his father in [Redacted].[20] It appears that was in 2008, and that his father was then responsible for the respondent's primary care, although the respondent would spend periods with his mother in [Redacted].[21] Prior to the respondent moving to live with his father, his sister died in a car accident, which was said to have had a significant impact on the respondent and caused his a great deal of distress.[22]

44 The respondent has said he was sexually abused as a child by a male, but there is no further information about that.[23] In sentencing the respondent in the Children's Court on 26 September 2011, Judge Derrick (as his Honour then was) noted that the psychologist who assessed the respondent for those proceedings considered there were factors in his past that indicated the possibility of 'exposure to inappropriate sexual behaviour from a young age', but on the basis of the material before his Honour, he was not able to find that the respondent had been exposed or subjected to inappropriate sexual behaviour.[24]

45 The respondent has said that when in [Redacted], he was exposed to the use of alcohol and cannabis, while still at school, and he began to engage in criminal activity in his early teen years to the detriment of his schooling.[25] The respondent did not like school because he was bullied, but continued to attend to play football. He told Dr Bala that his grades were 'okay', but he was frequently in trouble.[26] At some stage he attended a school that offered alternative education and life skills for children who do not attend mainstream school.

46 In sentencing the respondent on 26 September 2011, Judge Derrick referred to the respondent's education as being fragmented and incomplete, which had resulted in the respondent having difficulty with reading and writing.[27]

47 The respondent's criminal record shows that he commenced to offend from the age of 11 years, and from the age of 12 until the age of 15 he was convicted for numerous offences of burglary, aggravated burglary, stealing and receiving, for which he received youth community based orders and intensive youth supervision orders.

48 He left school at the age of 16 years and tried to engage in TAFE courses, but did not persevere.

49 The respondent has a history of alcohol and substance abuse. He was using alcohol heavily on weekends from the age of 14 or 15. He has said that he started using methylamphetamine from the age of 16.

50 He spent some time in the Northern Territory, where he also engaged in criminal activity in August 2009 and November 2010, for which he received periods of detention. The offending included the unlawful use of motor vehicles, aggravated burglary, stealing and driving while not licensed.

51 It appears that the respondent spent some time between Western Australia and the Northern Territory, because on 7 December 2009 he committed the first of his sexual offences in Western Australia, which I will describe below. The offences were committed against two small children. The respondent was arrested and charged for those offences soon after. He eventually pleaded guilty and was sentenced for the offences in the Children's Court on 23 March 2010 to a total period of 2 years' detention, backdated to 18 December 2009.[28]

52 After serving part of that term of detention, the respondent was released on a supervised release order. During the period that he was subject to that order, on 17 November 2010, he committed his next serious sexual offence during the course of a robbery on a street in [Redacted]. The offending was against a woman who was a stranger to the respondent. He was charged in respect of those offences in February 2011. He subsequently pleaded guilty to the offences and an offence of grievous bodily harm committed against the same victim at the same time, and was sentenced on 26 September 2011 to 2 years' detention.

53 After his release from that second period of detention, the respondent gained employment as a ranger with the Department of Parks and Wildlife in [Redacted], which he held from November 2013 until September 2014.

54 In August 2014, the respondent received a head injury as a result of being punched by another man, which resulted in head trauma and some degree of memory loss. The respondent told Dr Bala that he was assaulted by two men, and that he suffered bleeding to the brain and multiple injuries to the face, including fractures which required plates to be inserted.[29] In any event, he was hospitalised for between 7 and 11 days.[30]

55 The respondent has had one significant relationship, being with the female partner against whom he offended violently in 2014 and 2015. It appears the relationship commenced late 2012 or early 2013, when the respondent was 18 and his partner was 14 or 15 years of age. He offended against her when she was 16 and 17 years of age.

56 I will describe below the sexual offending, which was committed in 2015. As for the offending in 2014, the facts, in summary were as follows.

57 The respondent and the victim had been in a relationship for approximately one and a half years. On 31 May 2014, the victim was sleeping at the respondent's sister's house in [Redacted]. The respondent went to the address and punched the victim while she was sleeping. When she woke, he argued with her about leaving his sister's place during the night. The victim ran from the house when the respondent went to the toilet. She sought refuge in her sister's house, but the respondent found her, grabbed her by the hair and dragged her outside. He then stood on her chest and kicked her to the head while she was on the ground. He then threw a rock at her, narrowly missing her. The victim managed to run away from the respondent when police arrived. The respondent was arrested at the scene. The victim required treatment at the hospital for her injuries, which included a split lip and bleeding to a previous cut to her face.

58 The respondent was charged with the offence of AAOBH in respect of that incident. It appears he was released on bail with a protective bail condition preventing him from approaching the victim. He breached that condition on two occasions, on 20 July 2014 and 7 August 2014 and was charged with the offence of breaching a protective bail condition. The respondent was sentenced for those offences, together with the AAOBH, on 23 December 2014 in the [Redacted] Magistrates Court. He was placed on a 6‑month Community Based Order (CBO) for the breaches of the protective bail condition and on a 12‑month ISO for the AAOBH. It appears he was also subject to a violence restraining order made for the protection of the victim.

59 It appears the respondent subsequently breached the ISO and CBO by non‑compliance on two occasions, but the court ordered that the orders continue. However, on 1 July 2015 he breached the orders in a more significant way by committing the offences of AAOBH and aggravated sexual penetration against his partner. He was arrested on that day and has been in custody since then. He was charged with the aggravated sexual penetration in August 2015. He pleaded guilty in the District Court and was sentenced on 24 October 2016 to the total sentence of 4 years and 6 months' imprisonment backdated to 1 July 2015, as I explained earlier.

60 Subsequently, on 23 December 2016, he was sentenced by the Magistrates Court to a cumulative sentence of 3 months' imprisonment for the offence of AAOBH committed on 31 May 2014, because of his breach of the ISO by reoffending.

Propensity for serious sexual offending and pattern of offending

61 Section 7(3)(c) requires consideration of information indicating whether or not the respondent has a propensity to commit serious sexual offences in the future. Section 7(3)(d) requires consideration of whether or not the respondent has demonstrated any pattern of offending.

62 The respondent has demonstrated a propensity to commit serious sexual offences by his offending in 2009 and 2015.

63 The first occasion on which the respondent committed sexual offences was on 17 December 2009 in [Redacted]. He was 15 years old.

64 First, early in the morning, the respondent led a three‑year‑old boy away from his house, where he was playing, to a rocky outcrop about 50 metres away. The respondent penetrated the victim's anus with his finger several times before penetrating his anus with his penis. The child was in pain and began to cry. The respondent then left the scene. The victim suffered an internal tear to his anal wall as a result of the assault.

65 On the same day, approximately half an hour later, the respondent approached a three‑year‑old girl who was playing in the front yard of her house. He enticed the child away to a location approximately 800 metres from her home and placed her on a rock. He then penetrated her vagina with his finger. The victim suffered a laceration to the inside of her vagina, as well as a laceration to her labia.

66 The victim's father, who had been looking for her, found the respondent standing in front of the girl, who was naked. He chased the respondent when the latter ran off, but was not able to catch him. However, the respondent was apprehended by police later that day. He took part in a video recorded interview with the police and admitted sexually penetrating both children.

67 When he was sentenced by Judge Reynolds on 23 March 2010, the respondent demonstrated remorse and some insight into his wrongdoing.[31] It appears from the transcript of those proceedings that there was a psychological report prepared for the sentencing hearing. That report is not in the materials for this application. However, it appears from the transcript that the psychologist considered the offending to have been opportunistic.[32] That was accepted by Judge Reynolds.[33] His Honour also accepted that the respondent was affected by cannabis and ecstasy at the time of the offending,[34] although he found that the respondent appreciated that what he was doing was wrong.[35]

68 Judge Reynolds referred to the significant physical and psychological harm the offending had caused the victims. His Honour warned the respondent of the adverse effects of drug and alcohol use on his decision-making, and, in effect impressed on him that he had to control his sexual urges.[36]

69 On 17 November 2010 the respondent approached the victim, a 19‑year‑old female, while she was walking to work on a deserted street in [Redacted] at about 3.40 am. He demanded money from her. Fearing for her safety, she gave him $70 in cash. The respondent then tried to take her backpack, causing her to fall on the ground. The victim held onto her bag. The respondent dragged her along the ground by pulling on the strap. Whilst she was still on the ground he kicked her to the face, breaking her jaw. He then pushed his hand through the waistband of her trousers and inside her underpants and forced his finger into her vagina, causing a 1.5 cm laceration.

70 The respondent was disturbed by an approaching vehicle, which enabled the victim to get up and run off.

71 When interviewed about the incident by the police in February 2011, the respondent admitted most of the offending, but denied penetrating the victim's vagina. He was charged with aggravated robbery, grievous bodily harm (in relation to the breaking the victim's jaw) and aggravated sexual penetration without consent. It appears there was a challenge to the admissibility of his video recorded interview. The interview was ruled to be admissible, and the respondent subsequently pleaded guilty to all of the offences, notwithstanding his denial of the sexual penetration during the interview. He was sentenced in the Children's Court on 26 September 2011. He also came to be sentenced for three unrelated offences committed on 26 November 2010, being offences of aggravated burglary, stealing a motor vehicle and stealing.

72 In relation to the offences committed on 17 November 2010, Judge Derrick remarked that the respondent had picked on a woman in the very early hours of the morning on a deserted street when he knew she would be completely defenceless and would have no hope against him.[37] He noted that the respondent had continued to be violent against the victim despite the fact that she had given him money. He described the sexual penetration as a 'final act of humiliation'.[38] His Honour described the physical suffering the victim endured for some time as a result of her broken jaw, and said the respondent had also left her emotionally scarred.[39]

73 His Honour was not sure whether the sexual penetration was sexually motivated or not. His Honour was of the view it did not matter, as it was clearly a deliberate act aimed at degrading the victim further as 'vengeful type act' intended to cause the victim more pain and distress because the respondent was angry she had put up resistance.[40]

74 Again, although it was not part of the materials in these proceedings, it appears from the transcript of the sentencing that a psychological report was prepared for that hearing. The submissions of the prosecutor and the sentencing remarks of Judge Derrick indicate that the psychologist was of the opinion that the respondent demonstrated poor insight into his offending and tended to externalise responsibility for his offending, in particular to his level of intoxication. The psychologist also considered that the respondent demonstrated superficial victim empathy.[41]

75 However, Judge Derrick accepted that the respondent was remorseful for his offending, albeit rather belatedly. He also accepted that the respondent was 'highly intoxicated' at the time of the offending, as a result of consuming 'a really large concoction of alcohol and drugs', but his Honour did not regard that as mitigatory.[42] Ultimately, substance use was one of a number of risk factors identified by the psychologist that the respondent needed to address in rehabilitation. His Honour was of the opinion that the respondent was at high risk of reoffending at that time, and the protection of the community was a significant consideration in sentencing him.[43]

76 The offences in 2015 were committed by the respondent against his de facto partner. They were committed against a background of earlier violence to the victim and breaches of protection orders and violence restraining orders, as I have described earlier in these reasons. At the time of these offences, the respondent was 21 and the victim was 17 years of age.

77 Around 6 pm on 1 July 2015, the respondent went to the Aboriginal community where the victim was present. They were both intoxicated. As the two of them walked to a relative's house, the respondent began to argue with the victim and assaulted her by punching her above the eye, which caused it to bleed.

78 A relative observed the incident and called the police. The respondent and the victim went into scrub behind the premises in an attempt to hide from the police. While they were hiding, the respondent pulled down his shorts, exposing his erect penis. He then said to the victim, 'Shut the fuck up and suck my cock.' The victim told the respondent she did not want to. She was crying. The respondent said to her, 'Hurry up and suck me off before the policeman gets me.' The victim again said she did not want to. The respondent then pulled the victim's head towards his penis until she was performing fellatio on him. He did not ejaculate.

79 The respondent was arrested by police shortly afterwards. He was interviewed on 12 August 2015. He denied having forced the victim to perform oral sex on him. He was charged with aggravated assault occasioning bodily harm and aggravated sexual penetration without consent.

80 Despite his denial in the interview, the respondent pleaded guilty to both offences, although not at an early stage. At the time of the sentencing, he expressed remorse for the offending. The sentencing judge, Scott DCJ, accepted the respondent was remorseful and that he had been intoxicated at the time of the offence, but noted that his history indicated he should have been well aware that intoxication at times caused him to become violent to women and to act as if he could deal with them as he wished. His Honour accepted that, during the period of over one year that the respondent had been in custody on remand, he had had time to think about the seriousness of his offending and that he wanted to commit to making his life better.

Conclusion in relation to propensity for serious sexual offending and pattern of offending

81 The word 'propensity' in s 7(3)(c) is taken to have its ordinary meaning in the context of the criminal law. As Murray AJA explained in Director of Public Prosecutions (WA) v GTR:[44]

As to the question of a demonstrated propensity to commit serious sexual offences in the future, I think it is clear that if there is some discernible pattern in the offending behaviour, the relevance will be that it may tend to support the conclusion that the offender is a serious danger to the community, because he has a propensity to commit serious sexual offences which has not been negated by treatment and so may continue to affect the offender's behaviour in the future. In my view 'propensity' in this context means what it ordinarily means in the context of the criminal law. It 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 makeup or personality which may or may not be of the quality of a diagnosable mental illness or personality disorder.

82 The State acknowledges that there does not appear to be a pattern of sexual offending against a specific sex or age group. However, it submits there is a pattern in the offending against the adult females, in that the respondent committed the sexual offences in a violent manner whilst intoxicated by alcohol and drugs. Intoxication by drugs was also a factor in the sexual offending against the children.

83 In my opinion, it would be open for the court at a div 2 hearing to make those findings on the materials currently before the court. The respondent's circumstances are complex, in that there is no indication of a deviant sexual interest in children apart from the offending in 2009, yet he was prepared to achieve sexual gratification on that occasion with very small children. It remains to be seen whether the fact that the respondent was a juvenile at the time of those offences affects their relevance or significance to the prediction of his future risk of sexual offending. The respondent's age at the time of his offending in 2010 might also be a complicating factor.[45] However, there is no evidence in these proceedings to suggest the respondent's offending as a juvenile should not be taken into account in determining whether there are reasonable grounds to believe that a court might find the respondent to be a serious danger to the community. It is noteworthy, as will appear below, that the psychological and psychiatric reports prepared in 2014, in respect of offending by the respondent when he was an adult, did not discount his offending as a juvenile.

84 It may be that the pattern of the respondent's sexual offending (including the offending against the children) is the opportunistic use of force on a vulnerable victim (which would include the children and the adult victims) for sexual gratification. However, the question of whether the sexual penetration without consent committed on the victim of the robbery in 2010 was for sexual gratification was, in effect, left open by the sentencing judge. His Honour was not satisfied that was the case, however, he did not positively exclude that explanation. Ultimately, even if, as his Honour found, the respondent acted in an angry and vengeful way, it is arguable that the offending demonstrated a propensity for the respondent to commit a serious sexual offence in such circumstances.

85 In short, it would be open for the court at a div 2 hearing to find on the materials tendered in the preliminary hearing that the respondent has a propensity to commit a serious sexual offence in the future in an opportunistic way when he is affected by alcohol and/or illicit drugs, and such offending may involve the use of violence. As the State submitted, the use of alcohol and drugs is a pattern that is clearly discernible in all the respondent's sexual offending. It appears to elevate the risk that he will commit a serious sexual offence, and it is difficult to see that the risk could be minimised at this time, because the offender has stated that he does not intend to abstain from alcohol, as appears from the completion report from the Pathways Program, which I will discuss below. Whether the court makes any of those findings will depend on the whole of the evidence presented at the div 2 hearing, which will include both psychiatric and psychological assessments of the respondent's risk of sexual reoffending, prepared for that hearing.

86 At the time of the preliminary hearing, the respondent had not undergone a recent risk assessment.

87 Section 7(3)(a) and (b) require the court at a div 2 hearing to have regard to any report prepared by a psychiatrist as required by s 37 of the Act, and 'any other medical, psychiatric, psychological, or other assessment' relating to the respondent. There is no report available pursuant to s 37 at this stage, as such reports are obtained after a preliminary hearing. However, there are two reports that were prepared in 2014 for the sentencing of the respondent in the [Redacted] Magistrates Court for the AAOBH committed by the respondent against his partner and two counts of breaching a protective bail condition. Those reports were:

(1) the psychological report of Mr Bart Wszola, Counselling Psychologist, dated 6 December 2014; and

(2) the psychiatric report of Dr Siva Bala, Associate Professor of Psychiatry, dated 15 December 2014.

88 It must be remembered that the reports were prepared for offending that did not involve a sexual offence. Rather, the psychological report primarily addressed the respondent's risk of committing future offences involving domestic violence, although it also addressed his risk of violent offending more broadly. The psychiatric report addressed the question of whether the respondent was suffering from any psychiatric condition that might contribute to his offending, but otherwise appears to have addressed the question of risk in terms of general offending.

89 I have referred to aspects of Mr Wszola's report concerning the respondent's background earlier in these reasons.

90 Mr Wszola undertook personality assessment with the respondent, using the Millon Clinical Multiaxial Inventory - Third Edition (MCMI III). Although the use of the test must be approached with caution in respect of Indigenous Australians, because it was 'developed and normed' with mainly Caucasian populations, Mr Wszola decided it was appropriate to use the test with the respondent 'as he attended mainstream schooling and impressed as an articulate young man during the interview'.[46]

91 The respondent endorsed items suggesting the presence of raised levels of anxiety that, according to his comments, reflected difficulties with managing his psychological arousal and general stress levels. With regard to more entrenched personality patterns, the respondent's test profile was consistent with individuals who have an exaggerated sense of the self‑importance and competence. Mr Wszola stated that such individuals are likely to present as confident and quickly rationalise and dismiss failures or mistakes. He went on to say that, at the same time, the respondent's responses were also congruent with individuals who experience low self-esteem and have a sense of worthlessness or of being inadequate. In terms of the manner in which his personality might be seen to have manifested in his offending and the aftermath, Mr Wszola said:[47]

At the same time [ACW's] responses were similar to individuals who experience a struggle between loyalty to their own versus others' needs. This leads to a vacillation between obedience and aggressive position, and behaviourally can involve explosive anger intermingled with periods of guilt and shame.

92 In terms of risk assessment, Mr Wszola noted that it is not possible to predict recidivism with certainty. However, he considered that the respondent's past convictions for an offence of grievous bodily harm against a stranger and his numerous violations of past community supervision orders are relevant risk factors. He also said:[48]

Risk factors in terms of his psychosocial adjustment are his exposure to family violence as a child and his recent abuse of alcohol, with the latter playing a role in all three of his current offences. Finally of concern are his prior sexual offences against two children and a female adult.

93 Mr Wszola was of the opinion that the respondent presented a moderate risk of domestic violence towards intimate partners and a moderate risk of violence towards others.[49] Further:[50]

His prior history of violent and sexual offending, which he claimed took place in the context of drug and alcohol intoxication, being the most relevant factor influencing this rating. His risk of reoffending would be moderated if he were to be successful in not returning to drug use and alcohol abuse. A t the same time a relapse to drug and/or alcohol abuse would progressively shift his risk of violent reoffending, whether against an intimate partner or others, towards the High risk category.

94 On a positive note, Mr Wszola was of the opinion that the respondent presented as 'an intelligent young man who claimed that he did not want to have intimate relationship characterised by male privilege and family violence'.[51]

95 Unfortunately, the respondent was not able to live up to that aspiration when he subsequently committed the last of his serious sexual offences upon his partner on 1 July 2015. It would be apt to describe that offending as being characterised by both male privilege and family violence.

96 In terms of recommendations, Mr Wszola said:[52]

Ideally [ACW] would benefit from developing better emotional regulation, expression and conflict resolution skills so as to support his ability to deal with relationship and general life stressors without resorting to substance abuse. In addition developing such skills may teach him how to resolve conflict as well as to express and meet his needs appropriately as opposed to acting these out while intoxicated with drugs or alcohol. Engagement in individual or group substance use treatment program is recommended as is a period of supervision to support and guide his efforts to develop a more prosocial lifestyle.

97 I have referred to aspects of Dr Bala's report concerning the respondent's background earlier in these reasons.

98 Dr Bala reported that the respondent 'came across as having at least average level of intelligence based on his verbal performance'.[53] He also considered that the respondent had 'good insight into his problem' and that his judgement was not impaired.[54]

99 The respondent told Dr Bala that the AAOBH in 2014 was committed in circumstances in which both he and the victim were affected by alcohol and were 'jealousing' each other.[55] He claimed that the victim was 'nagging and nagging' and that he kept getting more drunk, and that the situation then got 'way out of hand' and escalated to the point where he hit her and gave her a black eye. He said to Dr Bala that he should not have done that, that it was a dumb thing to do, and that he should have walked away.[56]

100 Dr Bala made the principal diagnosis that the respondent has 'alcohol use disorder' which at that time was 'currently in remission'.[57] The secondary diagnosis was of 'resolving amnesia due to traumatic brain injury',[58] which was a result of the assault on the respondent to which I referred earlier.

101 Dr Bala was of the opinion that the traumatic brain injury did not appear to affect the offending.[59] Nor, in his opinion, was the offending on 31 May 2014 related to a mental disorder. In Dr Bala's opinion:

[ACW's] adoption of alcohol use and recurrent offending behaviour is best understood in the context of the negative effects of his parents' relationship breakdown and his association with negative peer groups.

102 Dr Bala noted that, although there seemed to be history of recurrent offending, there had also been 'a significant positive impact due to [ACW] being in full-time employment over the [previous] 12 months'.[60] Nevertheless, Dr Bala was of the opinion that the respondent was 'at a statistically increased risk of further offending given his significant previous offending, alcohol use and offending from a young age'.[61] He was of the opinion that, if the respondent was to 'gain mastery of his alcohol use and return to work and keep himself occupied, his offending is likely to be reduced'.[62] Dr Bala recommended that the respondent undergo counselling regarding his misuse of alcohol and psychological counselling to help him improve his coping and communication skills, and to deal with any unresolved issues from his childhood.

Other reports Pre-sentence report prepared in 2016

103 A pre‑sentence report was prepared in 2016 for the sentencing hearing on 24 October 2016.

104 The author of the report noted that the respondent presented as an intelligent young man.[63]

105 The respondent told her that he had no recollection of the offences committed on 1 July 2015, but, although he had been in denial when interviewed by the police, he now accepted that he had committed the offences and attributed his behaviour to alcohol and drug use.[64] He said that in the lead up to the offending he had consumed excessive amounts of alcohol and used methylamphetamine while 'celebrating' with his brother who had just been released from prison. He said he could not remember why he argued with his partner, but claimed that 'they often engaged in verbal arguments over jealousy in and trust issues'.[65] He told the author of the report that he was still trying to understand why he had committed the sexual offence, and could only attribute it to his use of methylamphetamine.

106 The author of the report was of the view that the respondent 'demonstrated significant empathy for the victim and accepted he was fully responsible for his behaviour'.[66] He said he loved the victim and was sorry he had caused her harm.

107 The author of the report noted the respondent's 'entrenched history of excessive alcohol use and occasional illicit substance use which have been contributing factors to his current and past offending'.[67] Although the respondent accepted that his use of alcohol was problematic and that he needed to abstain, the author noted that 'he honestly stated he would find this difficult and noted he is highly likely to engage in ongoing alcohol use in the future'.[68] The respondent identified employment as a protective factor in that regard and noted that his use of alcohol was likely to decrease if he gained full‑time employment. He also claimed that he would not ever use methylamphetamine again, but the author noted, appropriately, that the respondent had made similar claims in the past to no avail.[69]

108 The author of the report noted that 'substance abuse issues and power and control issues' have been identified as contributing factors to the respondent's offending and required priority intervention.[70] She was of the view that the respondent's intention to continue engaging in alcohol use in the future was likely to escalate his risk of reoffending, and he was considered to pose 'a significant risk of harm to the community should he reoffend.'[71]

Engagement in rehabilitation Early engagement with rehabilitation

109 The respondent told Mr Wszola that after he was sentenced in September 2011, he served the period of detention at Banksia Hill Juvenile Detention Centre, and he engaged in 'extensive counselling with a psychologist and made gains with regard to his problem solving and consequential thinking skills'.[72] However, Mr Wszola noted that, during the time the respondent was at that facility, he was convicted of a criminal damage offence arising from a riot at the facility in January 2013.

110 After the respondent was sentenced to the lengthy term of imprisonment on 24 October 2016, he was assessed for the appropriate treatment to be administered to deal with his offending and risk factors. The results are set out in a Treatment Assessment Report created on 1 February 2017.

111 There is no information about the author (or authors) of the report, so the contents would need to be approached with caution. That is particularly so because there are some obvious errors in the recitation of the respondent's offending against the two children in 2009. The age of the accused and the ages of the children stated in the report are incorrect. Further, the report states that the risk assessment in each of the three fields of general offending (assessed as very high), violent offending (assessed as high) and sex offending (assessed as high) needs to be treated with caution because the respondent is a 'traditional aboriginal young person' and participates in significant indigenous cultural activities.[73] The instruments used to assess the risk of sexual offending, namely the STATIC‑99R (which is an actuarial instrument based on historical factors) and the STABLE‑2007 assessment, which considers dynamic factors as well as historical factors, are both used regularly in risk assessments made by psychiatrists and psychologists for the purposes of proceedings under the Act. The appropriateness of the use of such instruments in the respondent's case, will no doubt be considered by the psychiatrist and psychologist who will prepare the reports for the div 2 hearing.

112 It is a relevant consideration, however, that on the STABLE‑2007 assessment, the areas of highest need for treatment included sex drive or sexual preoccupation and cooperation with supervision.[74]

113 Significantly, the Treatment Assessment Report made two recommendations to address the factors contributing to the respondent's offending. The first was that he participate in the Indigenous Sex Offender Treatment Program to address his sexual offending, and the second was that he participate in the Pathways Program to address his addictions and his offending more generally. A rather concerning comment accompanied the recommendation that the respondent undertake the Indigenous Sex Offender Treatment Program, namely that the programme 'may not be available during the term of his imprisonment'.[75] As will appear below, that is what has transpired.

114 In summary, the report concluded that the respondent's offending had occurred in the context of his alcohol and substance use, which 'appears to elevate his propensity towards violent and sexual offending'.[76] It suggested, by reference to Mr Wszola's report in 2014, that there were no indicators that the respondent's offending was driven by poor relationship dynamics or attitudes supportive of spousal abuse or male privilege. [77] However, as I noted in dealing with Mr Wszola's report, he was relying on the respondent's expressed attitudes, but the respondent's subsequent offending against his partner could aptly be described as manifesting an attitude of male privilege and a preparedness to engage in domestic violence to get his way. Further, as will appear below, during the Pathways Program the respondent subsequently revealed distorted views in the nature of 'victim-blaming' and attitudes of male entitlement.

115 The fact that alcohol and substance use may provide context for the offending is not necessarily inconsistent with the presence of other factors that are contributing. These are matters that no doubt will be addressed in the psychiatric and psychological assessments to be made of the respondent for the div 2 hearing.

116 Consistently with the Treatment Assessment Report, the respondent was given the opportunity to participate in the Pathways Program. The programme was conducted from 5 October 2017 to 19 December 2017. The Programme Completion Report was signed by the programme facilitators on 9 and 12 February 2018.

117 The Pathways Program is a structured programme consisting of sessions totalling 100 hours. It provides treatment to individuals who have a history of offending behaviour and substance use problems.

118 The outcomes of the programme can be stated briefly. In the 'assessment formulation' section, the report reiterates the respondent's comments made to the author of the pre-sentence report in 2016 that, while he accepted that his use of alcohol was problematic and he needed to abstain, he said he would find it difficult and noted he is highly likely to engage in ongoing alcohol use in the future.[78] While the language is identical to that used in the pre-sentence report, it is not attributed to that report, so it is not clear whether the respondent was making the same statement to the facilitators of the Pathways Program or whether those facilitators were simply relying on historical statements made by the respondent. It appears from a later part of the report, however, that during the course of the programme the respondent continued to suggest that he was likely to continue to use substances when he is released.

119 In any event, the overall impression from the report is that the respondent participated meaningfully in the programme and gained insight into his 'cognitive distortions around his substance abuse' and into 'what triggers him and how his thinking has allowed him to become abusive when he is affected by his substance abuse'.[79] The respondent is reported as having been forthcoming with personal information during the programme. The facilitators summarised his participation in the following statements:[80]

His attendance and participation in the program was evident from the start when he would contribute in an active manner. Towards the end of the program his awareness of the content was demonstrated clearly along with a commitment to apply strategies and skills he has gained from his participation in the program, and on occasions would admit that he was learning about his substance abuse and its contribution to his offending.

120 The facilitators also considered that the respondent made significant gains in his willingness to make changes in his life, specifically how he envisages his future relationships.[81] The report says that, in terms of his criminal behaviour, the respondent reported that he 'needs to stop and think more about his behaviour when he is around friends'.[82]

121 However, there are two areas of concern in the report. First, in relation to his substance use, the respondent did not identify as being dependent on substances and said that he did not drink often. The facilitators noted:[83]

It is of concern that [the respondent] has also stated that he thinks he will continue to use when he is released, but that he believes he is able to control his usage.

122 The second area of concern is the respondent's apparent deflection of responsibility to victims, despite his expressed acceptance of responsibility for his offending. The report states:

[ACW] advised that he had insight into what his victims (sic) thinks and how she acts by making the broad statement that 'it is always women's fault'. The facilitators stated that this is a negative core belief, but [ACW] did not think it was and would not consider that some women are at fault but not all women. In addressing this further in relation to the current offence, [ACW] has indicated on several occasions that he is remorseful and has expressed feelings of shame, empathy and an expression of the love that he still has for his ex-partner and victim whilst continuing to make such statements as, 'since women have got the power they use it over men', indicating a male entitlement stands with an emphasis on the relationship between a man and a woman, which could be seen as being focusing on his own.

123 The last of those comments resonates with the results of the personality test administered by Mr Wszola, as described above.

124 As I noted earlier, the respondent's comments during the Pathways Program seem to contradict the view expressed in the Treatment Assessment report that he does not have an underlying attitude of male privilege.

125 The facilitators of the Pathways Program recommended that the respondent attended the Indigenous Sex Offender Treatment Program and the Not Our Way (NOW) Aboriginal Family Violence Program.

126 However, in a notation at the end of the report, the facilitators indicated that the Indigenous Sex Offender Treatment Program was unavailable, and the NOW programme was 'not identified'. In respect of the Indigenous Sex Offender Treatment Program, the authors noted that it was 'still required as previously assessed' and was 'to be booked when a seat is available'.[84] In respect of the NOW programme, the authors noted that it was 'required'.

127 Before turning to the significance of the unavailability of the Indigenous Sex Offender Treatment Program and the developments that took place at the preliminary hearing in respect of steps that would be taken to give the respondent the opportunity to undertake a suitable programme to address his sexual offending, I will deal briefly with the parole assessment and the management plan that followed.

Parole assessment Parole Assessment Report: 22 February 2018

128 The Parole Assessment report was prepared by a Senior Community Corrections Officer and is dated 22 February 2018. Much of the report is concerned with issues that relate to the respondent's suitability for supervision in the community, such as the prison record of adverse incidents and the respondent's motivation to work. They do not inform the question in these proceedings of whether there are reasonable grounds for believing that a court might find the respondent is a serious danger to the community. There are three aspects of the report that are relevant.

129 First, to his credit, the respondent reported having a positive insight into his offending behaviour, which he attributed to his participation in the Pathways Program. He said that programme enabled him to see his offending from the perspective of others, in particular his victims, and he said he was happy the victim (I understand him to mean his ex‑partner) was able to report the violence perpetrated by him to the police. The respondent said he believed he had learnt some skills about how to lead a law‑abiding lifestyle.[85]

130 The second relevant aspect of the report is the fact that the respondent was considered to be 'a high risk of reoffending and a high risk of harm to the community should he continue to engage in high risk situations and use illicit substances'.[86]

131 The third relevant aspect is the recommendation, which reads:[87]

Given the serious nature of the current offending committed whilst subject to an ISO for violent offending against the same victim, coupled with unmet treatment needs for sexual offending and the potential risk of contact with the victim, he is not considered suitable for release.

132 As I will discuss below, the reason the respondent has unmet treatment needs in respect of his sexual offending is largely due to the fact that he has not been given the opportunity to participate in an Indigenous Sex Offender Treatment Program, or some other programme that would address the same needs.

133 The Individual Management Plan, which was created on 23 April 2018, sets out the decision of the Prisoners Review Board, which denied the respondent parole, and identifies rehabilitation and re‑integration programmes that have been recommended for the respondent.

134 The reasons given by the Prisoners Review Parole Board include the respondent's previous poor response when given opportunities on community‑based orders. The reasons that are relevant for present purposes were stated as follows:

1. Your unmet treatment needs (sex offending and other violence) as evidenced by the nature of your current offences, your criminal history and as assessed by the Department of Corrective Services. You have been assessed as requiring the Indigenous Sex Offending Treatment Program which is not available. The Board notes your criminal history includes sex offending against three other female victims, two of whom were young children.

2. ...

3. The board acknowledges your completion of the Pathways Program with reported gains however this has not addressed your sex offending treatment needs. The program facilitators have recommended you attend the Indigenous Sex Offending Treatment Program and the Not Our Way Aboriginal Family Violence Program.

4. In view of the above the Board requests that the Department of Justice reassess you for a non-Indigenous Sex Offender Program and the Not Our Way Program.

135 The reference to two female children in the first paragraph was wrong, but it does not appear to be of any significance.

136 There was no information in the materials adduced in these proceedings as to whether the respondent had been reassessed for a non‑indigenous sex offender programme. Given that the parole decision was made in April 2018, it is surprising that such information was not made available to the court prior to the hearing, and it would have been extraordinary if the reassessment had not occurred.

137 I will now turn to the developments at the preliminary hearing in respect of the unavailability of a suitable programme for the respondent to undertake.

The unavailability of programmes and other issues raised at the hearing The unavailability of the Indigenous Sex Offender Treatment Program

138 Although the respondent conceded that the requirements of s 14(1) of the Act were met, he submitted that he has been put at a disadvantage in not being able to participate in the Indigenous Sex Offender Treatment Program. That has been through no fault of his own. It was recognised on his behalf at the preliminary hearing that completion of that programme will be crucial to a determination of the issues that will need to be decided at the div 2 hearing, in light of the recommendations that have been made to date concerning his treatment needs.

139 The court was informed by the respondent's counsel that the respondent has always been willing to participate in the Indigenous Sex Offender Treatment Program or some other suitable programme to deal with his treatment needs specific to sex offending, and it has been a source of considerable frustration for him that such a programme has not been available for him. I accept that to be correct, as it is consistent with the indications in other material, including the Pathways Program report, that the respondent has demonstrated a commitment to rehabilitating and was an active participant in the Pathways Program. In my view, although the statements he made in respect of women during the Pathways Program are relevant to an assessment of his risk of committing a serious sexual offence, they are not inconsistent with a commitment on the respondent's part to rehabilitate.

140 It is indeed very regrettable, as was submitted on behalf of the respondent, that a suitable sex offender programme has not been made available to the respondent since he completed the Pathways Program.

141 During the course of the preliminary hearing, I indicated to counsel for the applicant that every effort should be made to give the respondent an opportunity, as soon as possible, to participate in an appropriate sex offender treatment programme before the div 2 hearing. As I said to counsel, if such a programme were commenced, and it became apparent that it would not be completed before the div 2 hearing, the div 2 hearing could be postponed to a date after the expected completion of the programme. That would give the respondent the best opportunity to demonstrate treatment gains that will be relevant to both the determination of whether he is a serious danger to the community and, if so, whether his risk could be managed in the community subject to a supervision order. Counsel for the respondent acknowledged that it is likely the respondent would prefer to proceed in that way, notwithstanding the fact he would remain in custody for a longer period pending the div 2 hearing. That is because it would be undesirable to interrupt the treatment programme, as it is unlikely the respondent could simply return to it at a later time.

142 While I appreciate that the Department of Justice is well aware of its obligations to sentenced prisoners, it is appropriate in the context of this case to make the following comments. It is to be expected that sentenced prisoners will be given opportunities to address treatment needs related to their offending. It is in the interests of the community that such rehabilitation should occur. As I noted during the hearing, it should not be assumed by those who are responsible for the custody of a person in the respondent's situation that they can simply defer providing treatment on the basis that he will not have completed the treatment before the div 2 hearing.

143 The issue that has arisen in this case concerning the unavailability of programmes that have been identified as necessary, has arisen previously. It would be appropriate in future, as part of the preparation of applications under s 8 of the Act, that the Department be consulted about this issue with a view to presenting a proposal that would enable the respondent to receive treatment before the div 2 hearing. At the very least, the applicant should be in a position to inform the court of any available options, or that there are no options, if that is the case. In the present case, the issue was apparent on the papers. Until a person in the respondent's situation has legal representation, he is at a distinct disadvantage in terms of raising the matter to resolve the impasse.

144 At my request, a representative from the Department, Ms Cassam, made enquiries during an adjournment and was able to provide the court, through the applicant's counsel, with information about a development that was not contained in the documents that had been filed. It appears that on 8 October 2019, the respondent was reassessed by the Department's programme section, which concluded that he no longer required the Indigenous Sex Offender Treatment Program, but that another programme, known as the Connect and Respect Program, would probably be suitable for him. However, the respondent had not yet been assessed for that programme as it was not then currently available.

145 As far as intensive sex offender treatment programmes are concerned, Ms Cassam was not able to ascertain during the short adjournment what was available in the various prisons. Such a programme would not be available in the regional prison where the respondent is incarcerated. It would be necessary for the respondent to transfer to a prison where such a programme may be available. Counsel for the respondent indicated that the respondent was prepared to transfer for that purpose if a suitable programme were found, notwithstanding that all of his family is in the [Redacted].

146 As there would be no benefit to the respondent to delay the conclusion of the preliminary hearing to obtain definite information about the availability of a suitable programme, I proceeded on the basis of the information made available during the hearing.

An issue raised by the respondent in relation to accommodation

147 It was not submitted by the respondent that, in the event that I should be satisfied there are reasonable grounds for believing that the court might find the respondent to be a serious danger to the community, the respondent should be released on an interim supervision order.

148 However, in due course, a submission may well be made on behalf of the respondent that if he is found to be a serious danger to the community, the community could be adequately protected if the respondent were released on a supervision order with appropriate conditions. Such an order could not be made unless there was suitable accommodation to which the respondent could be released. Counsel for the respondent submitted that there is a need for the respondent to be provided with assistance to find suitable accommodation in the [Redacted] region in the event that he were to be released on a supervision order, and that this is a matter upon which the Department must act before the div 2 hearing. Counsel raised the issue at this stage because it is known that finding suitable accommodation in regional areas, in particular the [Redacted], for the purposes of a supervision order can be difficult. All of the respondent's family connections are in or around [Redacted]. Given that pro‑social supports in the community would be an important consideration in determining whether a supervision order is appropriate, the desirability of accommodation being found in the [Redacted] is obvious. It is not an issue on which any direction can be given; nor would it be appropriate to treat the need for accommodation for the purposes of a supervision order as an issue that has been determined, given that the court must first find that the respondent is a serious danger to the community. However, it would be expected that, consistent with the approach that has been taken by the Department for some time, such assistance will be provided to the respondent.

149 There is evidence in these proceedings from which a court may conclude that the respondent has a propensity for committing serious sexual offences, and that the pattern of his offending involves acting impulsively when intoxicated with alcohol or drugs either to satisfy sexual needs or because of explosive anger. At this stage there is a reasonable basis for concluding that the propensity is not confined to adult females, and may be indiscriminate in terms of the age of the victim. That is an area that will require specific consideration in the risk assessments.

150 Insofar as the respondent might offend against adult females, there is a reasonable basis for concluding that the propensity may stem in part from an attitude of male entitlement. Insofar as it may occur in the context of a domestic relationship, there is a reasonable basis for concluding that it may stem in part from normalisation of family violence, steeped in the violence witnessed by the respondent in his home as a child. The respondent has also been assessed as having a need to control his sexual urges and preoccupation with sex.

151 Alcohol and drugs are significant risk factors, if not the crucial risk factors, and the respondent has indicated that he is unlikely to be able to resist using alcohol or substances, and that he believes he can control his use, which is a fraught strategy.

152 The respondent has unmet treatment needs. There are reasonable grounds for believing that those treatment needs must be addressed if the respondent's risk of committing a serious sexual offence is to be reduced to a point where he no longer poses an unacceptable risk of committing a serious sexual offence. Although the fact that the respondent's treatment needs have not been met is not his fault, the paramount consideration is the adequate protection of the community.

153 The potential harm to a victim of a sexual offence would be significant. If the offending was against a child, there would be the potential for great physical harm and lasting psychological damage. If the respondent were to offend again against an adult female stranger in similar circumstances as those in which he offended in November 2010, the degree of harm is obvious from the impact the offence had on the victim in that case. The concern, even in the domestic setting, is that the respondent's sexual offending against women has occurred in the broader context of the respondent inflicting significant violence on the victim.

154 For the reasons I have stated, having regard to all of the evidence I have outlined, I am satisfied that there are reasonable grounds for believing that the court might, under s 7(1) of the Act find that the respondent is a serious danger to the community.

155 In those circumstances, it was necessary at the conclusion of the preliminary hearing for me to fix a date for the hearing of the application for a Division 2 order and to make consequential orders in respect of the provision of expert reports and other procedures that will need to be followed.

156 Given the nature and degree of the risk which the court might find to exist, and the likely harm to any potential victim, the adequate protection of the community at this stage requires that the respondent be detained in custody until the determination of the div 2 hearing or further order. The respondent did not seek to persuade me otherwise.

157 The orders I made were in the terms set out in a minute of proposed orders filed by the applicant, to which there was no objection on behalf of the respondent.

158 I note that the orders were made on the basis that it is desirable for the div 2 hearing to be heard at the earliest opportunity.

159 However, if the respondent is given the opportunity to commence an intensive sex offender treatment programme or another sex offender treatment programme in the period between the making of the orders and 17 June 2020, and it is considered on his behalf to be desirable to postpone the div 2 hearing until after he has completed the programme, which may be of benefit to him, then the parties will be at liberty, in accordance with the final order made, to apply to vacate the hearing date of 17 June 2020 and for another date to be set.

1. The application for a Division 2 order pursuant to s 17(1) of the Act be heard on 17 June 2020.

2. The respondent undergo examinations by two qualified experts, namely Dr H, psychiatrist, and Ms H, psychologist, for the purposes of preparing the reports as required by s 37 of the Act that are to be used on the hearing of the application for the Division 2 order.

3. The experts are not to include in their reports information or opinions about the respondent based on a communication with a third person unless details of that communication sufficient to identify the person with whom the communication was held, its date and a summary of its content is included in the expert's report.

4. The reports of the experts be provided to the applicant at least 14 days prior to the div 2 hearing.

5. Any report authored by the Department of Justice, including any Treatment Progress Report, be provided to the applicant at least 14 days prior to the date of the div 2 hearing.

6. The two experts named in order 2 liaise with the Department of Justice as to a management plan (if appropriate) for the respondent to be supervised in the community.

7. Pursuant to s 122 of the Criminal Investigation Act 2006 (WA), the two experts may be supplied with and may view any audiovisual recordings of interviews with the respondent, or transcripts of the same, for the purpose of preparing their reports.

8. The respondent be detained in custody until the final determination of the application, pursuant to s 14(2)(b)(i) of the Act.

9. There be liberty to the parties to apply generally.

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

[1] Dangerous Sexual Offenders Act 2006 (WA) s 11(3) and s 14(1).

[2] Section 8(3) of the Act.

[3] Affidavit of Fiona Marie Clare, affirmed 21 November 2019 (Ms Clare's affidavit), pp 181 and 196 - transcript of proceedings on 24/10/16.

[4] Sentencing Act 1995 (WA) s 89(2).

[5] Sentence Administration Act 2003 (WA) s 7(2) and (4).

[6] Sentence Administration Act 2003 (WA) s 7(2).

[7] Director of Public Prosecutions (WA) v Free [2010] WASC 255 (McKechnie J) [4] ‑ [13] (Free).

[9] Director of Public Prosecutions (WA) v Dodd [2015] WASC 249 (Dodd) [34] ‑ [42].

[12] Section 14(2)(b)(i) of the Act.

[13] Section 27A(5) of the Act.

[14] Ms Clare's affidavit, Annexure "O", p 204 - Psychological report of Mr Wszola.

[15] Ms Clare's affidavit, Annexure "Q", p 212.

[16] Ms Clare's affidavit, Annexure "T", p 226.

[17] Ms Clare's affidavit, Annexure "Q", p 212.

[18] Ms Clare's affidavit, Annexure "J", p 148 - sentencing remarks of Judge Derrick (as he then was), 26/9/11.

[19] The respondent told Mr Wszola it was 2001 (Ms Clare's affidavit, Annexure "O", p 200). He told Dr Bala it was 2000 (Ms Clare's affidavit, Annexure "Q", p 212), but that seems unlikely given the history that had been provided earlier. Judge Derrick, when sentencing the respondent on 26/9/11, said it was 2002 (Ms Clare's affidavit, Annexure "J", p 148).

[20] Ms Clare's affidavit, Annexure "J", p 149 - sentencing remarks of Judge Derrick, 26/9/11.

[21] Ms Clare's affidavit, Annexure "J", p 149 - sentencing remarks of Judge Derrick, 26/9/11.

[22] Ms Clare's affidavit, Annexure "J", p 149 - sentencing remarks of Judge Derrick, 26/9/11.

[23] Ms Clare's affidavit, Annexure "J", p 200 - report of Mr Wszola.

[24] Ms Clare's affidavit, Annexure "J", p 149 - sentencing remarks of Judge Derrick, 26/9/11.

[25] Ms Clare's affidavit, Annexure "O", p 204.

[26] Ms Clare's affidavit, Annexure "O", p 212.

[27] Ms Clare's affidavit, Annexure "J", p 149.

[28] Ms Clare's affidavit, Annexure "G", pp 91 - 92 - Children's Court transcript, 23/3/10.

[29] Ms Clare's affidavit, Annexure "Q", p 211.

[30] The respondent told Dr Bala he was discharged from hospital after one week. Mr Wszola recorded the time frame as being about 11 days.

[31] Ms Clare's affidavit, Annexure "G", p 87.

[32] Ms Clare's affidavit, Annexure "G", p 76.

[33] Ms Clare's affidavit, Annexure "G", p 89.

[34] Ms Clare's affidavit, Annexure "G", p 86.

[35] Ms Clare's affidavit, Annexure "G", p 86.

[36] Ms Clare's affidavit, Annexure "G", p 86.

[37] Ms Clare's affidavit, Annexure "J", p 146.

[38] Ms Clare's affidavit, Annexure "J", p 146.

[39] Ms Clare's affidavit, Annexure "J", p 147.

[40] Ms Clare's affidavit, Annexure "J", pp 146 - 147.

[41] Ms Clare's affidavit, Annexure "J", pp 140, 141 and 149.

[42] Ms Clare's affidavit, Annexure "J", p 147.

[43] Ms Clare's affidavit, Annexure "J", p 152.

[44] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [178].

[45] This is adverted to without elaboration in the Treatment Assessment Report of 1 February 2017 (Ms Clare's affidavit, Annexure "S", p 222).

[46] Ms Clare's affidavit, Annexure "O", p 202.

[47] Ms Clare's affidavit, Annexure "O", p 202.

[48] Ms Clare's affidavit, Annexure "O", p 204.

[49] Ms Clare's affidavit, Annexure "O", p 204.

[50] Ms Clare's affidavit, Annexure "O", p 204.

[51] Ms Clare's affidavit, Annexure "O", p 204.

[52] Ms Clare's affidavit, Annexure "O", p 205

[53] Ms Clare's affidavit, Annexure "Q", p 212.

[54] Ms Clare's affidavit, Annexure "Q", p 212.

[55] Ms Clare's affidavit, Annexure "Q", p 210.

[56] Ms Clare's affidavit, Annexure "Q", p 210.

[57] Ms Clare's affidavit, Annexure "Q", p 213.

[58] Ms Clare's affidavit, Annexure "Q", p 213.

[59] Ms Clare's affidavit, Annexure "Q", p 213.

[60] Ms Clare's affidavit, Annexure "Q", p214.

[61] Ms Clare's affidavit, Annexure "Q", p 214.

[62] Ms Clare's affidavit, Annexure "Q", p 214.

[63] Ms Clare's affidavit, Annexure "R", p 216.

[64] Ms Clare's affidavit, Annexure "R", p 216.

[65] Ms Clare's affidavit, Annexure "R", p 216.

[66] Ms Clare's affidavit, Annexure "R", p 217.

[67] Ms Clare's affidavit, Annexure "R", p 218.

[68] Ms Clare's affidavit, Annexure "R", p 218.

[69] Ms Clare's affidavit, Annexure "R", p 218.

[70] Ms Clare's affidavit, Annexure "R", p 219.

[71] Ms Clare's affidavit, Annexure "R", p 219.

[72] Ms Clare's affidavit, Annexure "O", p 201.

[73] Ms Clare's affidavit, Annexure "S", p 220.

[74] Ms Clare's affidavit, Annexure "S", p 223.

[75] Ms Clare's affidavit, Annexure "S", p 223.

[76] Ms Clare's affidavit, Annexure "S", p 224.

[77] Ms Clare's affidavit, Annexure "S", p 224.

[78] Ms Clare's affidavit, Annexure "T", p 226.

[79] Ms Clare's affidavit, Annexure "T", p 227.

[80] Ms Clare's affidavit, Annexure "T", pp 226 - 227.

[81] Ms Clare's affidavit, Annexure "T", p 227.

[82] Ms Clare's affidavit, Annexure "T", p 227.

[83] Ms Clare's affidavit, Annexure "T", p 227.

[84] Ms Clare's affidavit, Annexure "T", p 229.

[85] Ms Clare's affidavit, Annexure "U", p 232.

[86] Ms Clare's affidavit, Annexure "U", p 232.

[87] Ms Clare's affidavit, Annexure "U", p 234.