THE STATE OF WESTERN AUSTRALIA -v- ACW [No 2] [2020] WASC 480 (7 January 2021)

3 Under s 48 of the HRSO Act, the first question is whether the respondent is a high risk serious offender. If he is, I must decide whether he should be released on a supervision order or be made subject to a continuing detention order. As I will explain, I have decided that the respondent should be made subject to a continuing detention order.

4 The State relied on a volume of material[3] that contained relevant information. The materials included:

(1) a psychiatric report by a psychiatrist, Dr Hall;

(2) a psychological report by a forensic psychologist, Ms Hasson;

(3) a clinical assessment report by a senior counselling psychologist, Ms Collyer;

(4) a management plan report by a senior forensic psychologist, Dr Riordan; and

(5) a community supervision assessment report from a senior community corrections officer, Ms MacQuarrie.

5 Dr Hall, Dr Riordan, Ms MacQuarrie and Ms Hasson gave oral evidence in the hearing. The respondent did not give evidence.

Legal principles[4] Statutory framework

6 The HRSO Act operates in substantially the same way as the DSO Act. For this reason, the principles established by the case law decided under the DSO Act apply to the HRSO Act.[5]

7 Under s 35 of the HRSO Act, the State may seek a 'restriction order' in relation to a 'serious offender under custodial sentence' who is not a 'serious offender under restriction'.[6]

8 A restriction order is a 'continuing detention order' or a 'supervision order'.[7]

9 At the time the application was made, the respondent was a serious offender under custodial sentence.[8] He was not already the subject of a continuing detention order or a supervision order, and was therefore not a serious offender under restriction.[9]

10 Section 43 of the HRSO Act requires there to be a preliminary hearing of an application made under s 35.[10] The purpose of the preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might find that the offender is a 'high risk serious offender'.[11] If a court is so satisfied, it must order reports and set a date for the hearing of the application.[12]

48. Restriction orders

(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.

12 Accordingly, the first question I must answer is whether I find that the respondent is a high risk serious offender.

7. Term used: high risk serious offender

(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.

14 This raises materially the same considerations as applied under the DSO Act in determining whether a person was a 'serious danger to the community'.[13]

15 Determining whether a restriction order is necessary requires a balancing exercise.

16 On the one hand, the court is required to have regard to, among other things, the risk the offender would commit a serious offence (with serious consequences for the victim) if the offender was not made the subject of a restriction order and the likelihood of the risk materialising. On the other hand, the court is required to have regard to the serious consequences for the offender (either detention, without having committed an unpunished offence, or being subject to an onerous supervision order) if an order is made.[14]

17 The court must then decide whether the risk of the offender committing a serious offence is so unacceptable that, notwithstanding that the offender has already been punished for the offences he or she has committed, it is necessary that he or she is subject to further control or detention to ensure the adequate protection of the community.[15]

18 The State bears the onus of satisfying the court that it is necessary to make a restriction order to ensure adequate protection of the community against an unacceptable risk that the respondent would commit a serious offence.[16] It must do this by acceptable and cogent evidence and to a high degree of probability.[17]

19 The expression 'high degree of probability' sets a higher standard than the standard of the balance of probabilities, but a lesser standard than the standard of beyond reasonable doubt.[18] However, this does not mean that the risk must be greater than 50%. The court must identify 'what it is (if anything) that constitutes the risk and makes the risk unacceptable, and then consider whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence'.[19]

20 A 'serious offence' is defined in s 5 of the HRSO Act.

21 In deciding whether to find a person is a high risk serious offender, the court must have regard to each of the matters specified in s 7(3) of the HRSO Act:

(3) In considering whether it is satisfied as required by subsection (1), the court must have regard to the following -

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

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

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

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

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

(f) whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;

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

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

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

(j) any other relevant matter.

22 Section 7(3) of the HRSO Act is relevantly identical to s 7(3) of the DSO Act.

23 In Director of Public Prosecutions (WA) v GTR, Steytler P and Buss JA said:[20]

Although there is no doubt, under the [DSO Act], that a court must have regard to the psychiatrists' reports (and must bear in mind that the authors have an area of expertise not shared by the court), the reports are only a part of the materials that must be considered and the weight to be accorded to them will depend upon their cogency and reliability, when considered in the light of the whole of the evidence. The responsibility for deciding whether or not the offender is a serious danger to the community as defined and, if so, what order should be made is that of the judge alone.

Precondition to a supervision order - compliance with standard conditions

24 If I find that the respondent is a high risk serious offender, I must make a continuing detention order or a supervision order.

25 Due to s 29 of the HRSO, I will only have a choice if the respondent satisfies me on the balance of probabilities that he would substantially comply with the standard conditions.

29. Limitation on power to make or amend supervision order

(1) A court cannot make, affirm or amend a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made, affirmed or amended.

(2) The onus of proof as to the matter described in subsection (1) is on the offender.

(3) This section does not apply to the making of an interim supervision order.

27 Section 23(1B) and (1C) of the DSO Act were in similar terms to s 29(1) and (2) of the HRSO Act.

28 There are seven standard conditions for a supervision order. They are set out in s 30(2) of the HRSO Act:[21]

(2) A supervision order in relation to an offender must require that the offender -

(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 section 31 or 32); 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; and

(g) be subject to electronic monitoring under section 31.

(3) A supervision order in relation to an offender may require the offender not to make public any statement, information or opinion relating directly or indirectly to any victim of a serious offence committed by the offender.

(4) When considering whether to impose a requirement under subsection (3) the court must have regard to -

(a) the gravity and nature of the offender's offences; and

(b) the likely impact on the victims of the offender providing or making available any statement, information or opinion; and

(c) the public interest generally.

(5) A supervision order may contain any other terms that the court thinks appropriate -

(a) to ensure adequate protection of the community; or

(b) for the rehabilitation, care or treatment of the offender subject to the order; or

(c) to ensure adequate protection of victims of serious offences committed by the offender subject to the order.

(6) Without limiting subsection (5), a supervision order may provide that -

(a) for the period specified in the order the offender is subject to a curfew under section 32; and

(b) the photograph and locality of the offender must not be published under the Community Protection (Offender Reporting) Act 2004 section 85G.

29 The effect of s 29 is that I must make a continuing detention order unless the respondent satisfies me, on the balance of probabilities, that he will substantially comply with the standard conditions of a supervision order.

'Substantially comply' with the standard conditions

30 The meaning of the phrase 'substantially comply' was considered by Fiannaca J in Director of Public Prosecutions for Western Australia v Hart[22] in relation to the provisions of the DSO Act. His Honour's observations, which I gratefully adopt, apply equally to the provisions of the HRSO Act.

(1) The words 'will substantially comply with' should be given their ordinary meaning, consistent with the purposes of the legislation and of the general conditions of a supervision order, the overall object of which is to achieve the adequate protection of the community by appropriate management and mitigation of the unacceptable risk that the respondent will commit a serious sexual offence.

(2) The question of what will be substantial compliance will be a matter of judgment that will depend on the circumstances of each particular case.

(3) The assessment is to be made in the context that it is one aspect of the broader exercise of determining whether the community can be adequately protected if the respondent is released again subject to a supervision order.

(4) It is consistent with the ordinary meaning of the language of the section, in context, that the word 'substantially' is used in a relative sense and involves an assessment of the degree of compliance that the respondent is likely to achieve.

(5) While the prospect of trivial or minor contraventions will not (and ordinarily should not) preclude a finding that the respondent will substantially comply with the standard conditions of a supervision order, the assessment of whether the respondent will substantially comply involves considerations other than simply whether any potential breach will be trivial or minor.

(6) The court 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 sexual offence.

(7) Factors that are relevant to that assessment would include the respondent's history of compliance and non‑compliance and the factors set out at [50] above.

31 In the above extract at (5), his Honour observed that the prospect of trivial or minor contraventions will not (and ordinarily should not) preclude a finding that the respondent will substantially comply with the standard conditions of a supervision order. Elsewhere in the judgment, his Honour made a number of other useful observations in relation to the assessment of prior contraventions, to the following effect:

(1) self‑evidently from the statutory scheme, the fact that the respondent has contravened the conditions of a supervision order will not necessarily result in a continuing detention order;[23]

(2) given the onerous nature of supervision orders, missteps are to be expected;[24] and

(3) the frequency or regularity of contraventions might inform the question of whether the person will substantially comply.[25]

32 A critical point made by Fiannaca J, as set out in (6) of the extract, is that the court 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 sexual offence.

33 In (7) of the extract, Fiannaca J identified the factors that are relevant to the assessment of whether the respondent will substantially comply with the standard conditions. His Honour said that they would include the respondent's history of compliance and non‑compliance and the factors he had set out in his judgment in paragraph 50.

34 In paragraph 50, Fiannaca J identified, in effect, the following factors:[26]

(1) the offender's attitude to the conditions of the supervision order (in particular whether he is likely to deliberately flout the conditions);

(2) his capacity to comply with the conditions;

(3) what measures there are in place to ensure he would substantially comply;

(4) 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 DSO Act;

(5) the respondent's motivation to remain offence free and in the community;

(6) any willing participation in a sex offender treatment program;

(7) abstinence from drugs;

(8) conduct while in prison; and

(9) demonstrated gains in treatment, self‑management and life skills.

35 If the respondent satisfies me on the balance of probabilities that he would substantially comply with the standard conditions, I must then decide whether to make a supervision order or a continuing detention order.

36 In deciding between these options, the paramount consideration is the need to ensure adequate protection of the community.[27] However, it 'cannot simply be assumed that the most assured preventative is detention and, therefore, the protection of the community will always favour such an order'.[28] Nor does it mean that other considerations are excluded.[29]

37 The powers conferred by the HRSO Act are not to be exercised for the purpose of imposing additional punishment on an offender, but rather for the ultimate purpose of protecting the community.[30] The court should choose the order that is the 'least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community'.[31]

38 In Director of Public Prosecutions (WA) v DAL [No 2],[32] Beech J[33] summarised the principles to be applied in considering whether a supervision order would adequately protect the community, in relation to relevantly identical provisions in the now repealed DSO Act. Putting his Honour's observations in list form, and omitting citations, his Honour said:

1. The use of the word 'adequate' indicates that a qualitative assessment is required.

2. In considering whether a supervision order would adequately protect the community, account must be taken of conditions which can be placed on a supervision order so as to ensure the adequate protection of the community, the rehabilitation of the respondent, and his [or her] care and treatment.

3. The [DSO Act] does not require that there be no risk of reoffending. Such a requirement could never be met and would mean no person to whom the [DSO Act] applies would ever be released.

4. The question is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community. That requires a weighing of the nature and degree of risk in the context of methods for the management and reduction of that risk.

5. If, after considering all the evidence, the court is left in doubt as to whether the conditions of a supervision order would adequately protect the community, because the paramount consideration is the need to ensure the adequate protection of the community, the court must expressly decline to rescind the continuing detention order.

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

(2) If so, has he proved on the balance of probabilities that he will substantially comply with the standard conditions?

(3) If so, should I make a continuing detention order or a supervision order?

40 The respondent conceded through his counsel that he was a high risk serious offender.[34] Nevertheless, I am required to determine whether I am so satisfied, in accordance with the legal framework, and having regard to the s 7(3) factors.

41 In The State of Western Australia v ACW,[35] Fiannaca J dealt with the preliminary hearing in these proceedings. His Honour was satisfied that there were reasonable grounds for believing that the court might find that the offender is a high risk serious offender. In his judgment, his Honour summarised the respondent's antecedents (citations omitted):[36]

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'. 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'. 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'.

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

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.

43 The respondent's parents separated in 2001 or 2002, 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]. 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]. 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 [sic: him] a great deal of distress.

42 Fiannaca J noted that the respondent had said he was sexually abused as a child by a male, but there was no further information about that.[37] Since that time, the respondent has provided more detail, in speaking to Dr Hall.[38]

43 Fiannaca J continued (citations omitted):[39]

Education, substance use and early offending

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. 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. 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.

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.

Sexual offences in 2009 and 2010

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 ... 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.

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.

Early adulthood

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. In any event, he was hospitalised for between 7 and 11 days.

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.

44 The first offence against his female partner occurred on 31 May 2014. Fiannaca J said:[40]

Violent offending against his partner in 2014

...

58 The respondent was charged with the offence of AAOBH [aggravated assault occasioning bodily harm] 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.

Subsequent offending and breaches of orders

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.

45 In the reports tendered by the State I was provided with additional detail of the respondent's background, and his own, sometimes changing, version of it. It is unnecessary to set any of that out in these reasons, as the additional detail did not substantively change the overall picture.

46 In terms of the respondent's risk to the community, the most significant convictions are his convictions for sexual offences in 2009, 2010 and 2015, and his violent offending in 2014. The sexual offences were 'serious offences' within the meaning of the HRSO Act. The violent offending, being an aggravated assault occasioning bodily harm, does not fall within that meaning. Nevertheless, in light of the circumstances, it is relevant to the task before me.

47 The 2009 offences were two counts of sexual penetration of a child under 13 years of age. Fiannaca J summarised the offending in 2009 as follows (citations omitted):[41]

Offences committed on 17 December 2009

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. 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. That was accepted by Judge Reynolds. His Honour also accepted that the respondent was affected by cannabis and ecstasy at the time of the offending, although he found that the respondent appreciated that what he was doing was wrong.

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.

48 The offences in 2010 included an aggravated sexual penetration without consent. The other offences committed at the same time were also serious offences within the meaning of the HRSO Act, being robbery and grievous bodily harm.

49 Fiannaca J summarised the offending in 2010 as follows (citations omitted):[42]

Offences committed on 17 November 2010

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. 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'. 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.

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.

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.

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. 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.

50 In 2014, the respondent committed an aggravated assault occasioning bodily harm. Fiannaca J summarised the 2014 offending as follows (citations omitted):[43]

Violent offending against his partner in 2014

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.

51 Although the 2014 offence is not a 'serious offence' within the meaning of the HRSO Act, it is plainly relevant. It was a violent attack on his female partner. He was given an ISO for this offence, and was still subject to the ISO when he committed the serious offence of aggravated sexual penetration in 2015.

52 Fiannaca J summarised the 2015 offending as follows (citations omitted):[44]

Offences committed in 2015

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 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.

53 Each of the reports was comprehensive. Where opinions were expressed, the foundation and reasoning was properly exposed. The witnesses who gave oral evidence did so in a demonstrably objective fashion.

54 The respondent did not challenge the expertise or veracity of any of the witnesses. Nor did he challenge the validity of any of the opinions expressed.

55 I accept the evidence and opinions of the report writers.

56 Dr Hall is a forensic consultant psychiatrist with considerable experience in this area. He interviewed the respondent and prepared a report. He also gave oral evidence.

57 Dr Hall said that the respondent's principal diagnosis is antisocial personality disorder. His secondary diagnoses are narcissistic and borderline personality traits, alcohol abuse, methamphetamine abuse and cannabis dependence (the last three are all in remission due to the respondent being in custody).[45]

58 Dr Hall assessed the respondent using the Hare Psychopathy Checklist (PCL‑R).[46] The respondent's score on the PCL‑R was well below the threshold for a diagnosis of psychopathy. Nevertheless, Dr Hall said that the weighting from scores obtained on the four facets of the instrument can be informative.[47] In particular:[48]

[ACW], however, scored in the high range on the antisocial facet of the instrument indicating that he has most of the antisocial features of psychopathy. Persons in this range tend to have a varied and persistent antisocial lifestyle, with frequent and serious violations of social and legal expectations and standards from an early age. They may be easily offended, short tempered, aggressive, and prone to engage in a wide variety of antisocial and illegal activities.

59 Dr Hall set out the respondent's history of drug and alcohol abuse, commencing when he was a child.[49] He said:[50]

[ACW] has an entrenched history of highly problematic use of substances, notably alcohol, methamphetamine and cannabis. Historically, he has relapsed quickly and easily despite making strong declarations as to his intention to address such problems.

60 Earlier in his report, Dr Hall had said:[51]

[ACW] said initially that going forward he wanted to address his alcohol use. However, he later stated that he believed that he could safely consume alcohol as long as he did not mix it with methamphetamine.

61 Despite this, the respondent told Dr Hall he was willing to take a medication such as Antabuse (a drug that inhibits the metabolism of alcohol thereby producing an acute and highly unpleasant reaction to any consumption of alcohol), and for it to be dosed daily under supervision at the local pharmacy so as to monitor his compliance.[52]

There is no evidence at present to indicate that [ACW] has a pattern of deviant sexual arousal. The diversity of his offending, other antisocial behaviours, negative attitudes towards women, and normalised view of violence against women suggest that [ACW's] sexual offending occurs as part of a wider repertoire of the violation of the rights of others to satisfy his desires and perceive[d] needs in the moment. In addition, his personality renders him jealous, insecure, possessive, and prone to aggressive reactions when insulted or stripped of a sense of power. In addition, he is sexually preoccupied, has a high sex drive, and has a sense of male sexual entitlement. As such, his aggressive response to perceived disrespect can become sexualised when received from a female. The above can coalesce to produce either violent sexual assaults on adult females in particular within the context of an intimate relationship, or family and domestic violence in general. Further weakening of self‑control and inhibitions by substances, in particular alcohol, renders the above more likely but also, given underlying sexual preoccupation and high sex drive, increases the potential for him to attempt to satisfy sexual impulses through avenues that do not necessarily involve adults or females, as was the case with his child sexual offending.

63 Dr Hall evaluated the respondent's risk of reoffending using a forensic tool, the RSVP. He said the risk factors were:[54]

(1) in the sexual violence history category: chronicity of sexual violence, diversity of sexual violence and physical coercion in sexual violence;

(2) in the psychological adjustment category: extreme minimisation or denial of sexual violence, attitudes that support or condone sexual violence, problems with self‑awareness, problems with stress or coping and problems resulting from child abuse;

(3) in the mental disorder category: problems with substance abuse;

(4) in the social adjustment category: problems with intimate and non‑intimate relationships and a non‑sexual criminal history; and

(5) manageability category: problems with planning, treatment and supervision.

64 Dr Hall concluded that the respondent is at high risk of reoffending sexually without further intervention.[55] He said that the respondent was also at high risk of committing a violent non‑sexual offence without further intervention.[56] In his oral evidence, Dr Hall confirmed that he meant that the respondent is at high risk of committing an offence such as a sexual penetration offence and a violent offence such as a grievous bodily harm, a robbery or a sexual assault with intent to rob.

65 Dr Hall also confirmed that the respondent's juvenile offending is a relevant consideration in thinking about his risk and pattern.

66 In relation to treatment needs, Dr Hall stated:[57]

[ACW] requires psychological treatment to improve coping mechanisms, and to address sexual offending and substance misuse. [ACW] may stand to benefit from engagement in culturally specific therapy, individually or in a group, with a focus on family and domestic violence and substance use. Pharmacological treatment for alcohol abuse using Antabuse, with daily dosing and reporting back to his community corrections officer by a local pharmacy could be considered.

67 Earlier in his report, Dr Hall had noted that Antabuse was not fool‑proof. He said:[58]

Antabuse ... would only work if he was compliant with it. Whilst the local pharmacy could monitor his compliance it is closed on Sundays and public holidays, and Adult Community Corrections is closed on weekends and public holidays, so there would be a two day (and sometimes 3 day) gap in confirmation of adherence to treatment each week. Given that [ACW] does not yet have demonstrable self‑management skills with regard to risk of sexual offending, there is essentially reliance on external constraints to manage his risk. Given that he proposes to reside in a remote area, the use of Antabuse as a supportive strategy has merit but [is] insufficient to be relied upon as a key component of a risk management strategy.

68 Dr Hall said that a high priority was suitable accommodation. He said:[59]

[A] significant outstanding need at this stage remains that of suitable accommodation. Ideally, accommodation would be free from unwanted or excessive visitation, free from exposure to alcohol use, accessible to sources of supervision and therapeutic intervention, and conducive to mobile telephone contact and electronic monitoring.

[ACW] has a persistent lack of self‑awareness both in relation to his offending, and to the challenges ahead in terms of managing the risks of him relapsing to substance use. As such, risk management for the foreseeable future relies on external constraints rather than his self‑management, a circumstance that does not generally bode well.

71 Ms Hasson reached conclusions similar to those reached by Dr Hall.[61] In particular, Ms Hasson concluded that the respondent was high risk of sexually reoffending, and high risk of reoffending against a future intimate partner or family member, if not subject to ongoing intervention, supervision, support and monitoring.[62]

72 Ms Hasson also discussed the respondent's significant treatment needs. Ms Hasson said, for example, that the respondent's sexually permissive attitudes and a sense of sexual entitlement were core beliefs that required therapeutic input.[63]

[ACW] will require support and assistance to manage his risk and to re‑establish himself in his community. Whilst he has family support, he will be unable to reside with his father in [Redacted] due to several difficulties associated with monitoring, supervision, and ability to attend appointments in town due to limited transport options. Historically residing in [Redacted] has been a high‑risk environment for [ACW]. Living in town increases his risk of exposure to antisocial peers and greater availability of alcohol and substance abuse as well as unstable lifestyle factors. [ACW] particularly needs assistance to maintain abstinence from illicit substance abuse and to develop healthy and stable intimate relationships. His attitudes toward women as well as sexual behaviour require therapeutic input. [ACW] has several outstanding treatment needs.

74 Dr Vuletich is a consultant clinical neuropsychologist. She assessed the respondent's cognitive capacity.

75 Dr Vuletich found that the respondent's full‑scale IQ was in the extremely low (cusp borderline) range.[65] However, she considered that this score under‑represented his true core cognitive capacity and that his intellectual functioning was not at a level suggestive of intellectual disability.[66]

76 Dr Riordan is a senior forensic psychologist, employed by the Department of Corrective Services.[67]

77 Dr Riordan summarised the respondent's background, his offending behaviour and his treatment history.[68]

78 Dr Riordan discussed the results of the respondent's neuropsychological assessment. She said:[69]

[ACW] assessed neurocognitive profile suggests that he has the cognitive capacity to attend to, comprehend and learn from individual and group based treatment programs should he be motivated to do so. However his relative weaknesses in literacy, in particular reading and weaker skills in mental flexibility should be considered as responsivity factors to optimise potential treatment gains.

79 Dr Riordan identified a long list of treatment needs for the respondent.[70] In particular, she said:

Social influences - [ACW] presents with a very limited base of positive social support, the likes of which have the potential to influence, moderate or change his behavioural choices when placed in the community setting. During interview [ACW] identified his father, brother, sister and mother as his primary base of support. While it is well established that [ACW's] father is considered to be a positive role model and respected elder of the [Redacted] and [Redacted] community, he also requires significant care in the context of his disability, chronic health conditions and age. [ACW] is unlikely to be able to reside with his father in the [Redacted] community due to the remote geographical location. His younger brother reportedly works fulltime and has care responsibilities for his father. His sister has also been reported to have made positive steps towards her own rehabilitation and establishment of a pro‑social lifestyle, however departmental information indicates that [the respondent] and his sister have been involved in behavioural incidents together in the prison setting while detained in [Redacted]. Further, with respect to cultural responsibilities to family, [ACW's] sister's house reportedly occupies extended family members who consume alcohol, thereby exposing [the respondent] to a potential high risk situation. [ACW's] mother has a number of health related difficulties, including dementia and requires care. While [ACW] is part of a large extended family and kinship system in the [Redacted] and [Redacted] community, he acknowledged that many of his family members have been involved in the criminal justice system and that in both communities that he would be exposed to substance use. [ACW] requires assistance to establish a pro‑social base of social support.

...

Co‑operation with supervision - [ACW] presents with a very poor history of engagement and compliance with community based supervision, police orders, protective bail conditions and VRO's. Within the custodial environment, [ACW] has likewise demonstrated a pattern of behaviour of challenging authority and disregarding prison rules, particularly when detained in [Redacted], where he has recently (2019) faced disciplinary sanctions for breaking and entering into the canteen, dealing in contraband and engaging in threatening behaviour towards staff.

80 Dr Riordan said that the most pertinent area of treatment need related to the respondent's alcohol and other drug use and involvement in intimate partner violence, including sexual violence.[71]

81 Dr Riordan also considered the accommodation options open to the respondent.

82 She said that [Redacted] had been consistently identified as providing the respondent with the most stable environment to promote a pro‑social lifestyle:[72]

However this community based option is complicated by its remote location, limited provision of services, limited employment opportunities, inability for community correction to supervise and monitor [ACW], limited access to reliable transportation and lack of reliable means of communication. Additionally, [ACW] conceded during interview that while [Redacted] purports to be a dry community, that the use of cannabis is commonplace and alcohol consumption does take place.

83 Dr Riordan next discussed the option of the respondent living with his sister in [Redacted]:[73]

[ACW's] placement in [Redacted] would allow for greater access to family based support, community based psychosocial support and intervention services, in addition to be being a more culturally safe option. However, his previous placements in and around [Redacted] while under supervision has consistently exposed him to high risk situations pertaining to significant peer and/or family influence to consume alcohol and other substances, which he has been ill equipped to manage, resulting in a relapse into the use of substances and offending behaviour.

84 Dr Riordan also discussed the option of the respondent living in Perth:[74]

Should [ACW] be placed in the Perth metropolitan area, he would be displaced from country, community and culture, which would likely induce cultural stress and deplete his psychological capacity to cope. During interview he expressed the view that he had no available base of support in the Perth metropolitan area and as such would prefer to remain in prison rather than reside in Perth for any length of time.

85 Dr Riordan noted that, regardless of where he might be living, the respondent has expressed concern about his own ability to desist from alcohol and other drug use.[75]

86 I have also had regard to Ms MacQuarrie's report. It was not directed to the assessment required by s 7, of whether it is necessary to make a restriction order to ensure adequate protection of the community. However, it was useful in the consideration of whether a supervision order should be made.

87 In particular, Ms MacQuarrie discussed the accommodation options proposed by the respondent. Ms MacQuarrie explained why each posed significant risk.[76]

88 Ms MacQuarrie noted that the respondent has consistently refused to consider accommodation provided by the Uniting WA Supported Accommodation Program.[77] However, she said that that program does not provide accommodation in the [Redacted] region.

Propensity and pattern - s 7(3)(c) and s 7(3)(d) factors

89 There are some patterns in the respondent's offending against adult females. He has a pattern of committing violent sexual offences while under the influence of alcohol and/or drugs. Drug intoxication was also a factor in the sexual offending against the children in 2009.

90 The word 'propensity' is taken to have its ordinary meaning in the context of the criminal law. It means:[78]

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.

91 I am satisfied that the respondent has a propensity to commit serious and violent sexual offences when under the influence of drugs or alcohol. This is shown by his history of sexual offending.

Addressing causes and rehabilitation (historical) - s 7(3)(e) and (f) factors

92 In his judgment on the preliminary hearing, Fiannaca J summarised the findings of a Treatment Assessment Report in 2017 and a report following the respondent's completion of the Pathway Program, dated February 2018.[79] In relation to the latter, much of the report commented favourably on the respondent's participation and learning. However, Fiannaca J identified two areas of concern in the report:[80]

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:

'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.'

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:

'[The respondent] 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 [the respondent] 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, [the respondent] 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.'

93 Fiannaca J also noted that 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.[81] However: (citations omitted)[82]

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'. In respect of the NOW programme, the authors noted that it was 'required'.

94 Dr Riordan said that the respondent was not able to complete the Indigenous Sex Offender Program due to a lack of program availability prior to his scheduled earliest eligibility date for release.[83]

95 The Parole Board denied the respondent parole. Its reasons were set out in an Individual Management Plan dated 23 April 2018. The reasons included:[84]

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.

96 The Parole Board asked the Department of Justice to reassess the respondent for a Non‑Indigenous Sex Offender Program and the Not Our Way Program. It appears that this did not occur until 8 October 2019.

97 Dr Riordan noted (citations omitted):[85]

A clinical reassessment of [ACW's] treatment needs was undertaken on 8/10/2019 ... [T]he reassessment report noted that [ACW's] treatment needs would be best met through inclusion in the Connect and Respect program, rather than the Indigenous Sex Offender Treatment Program.

...

A further clinical reassessment of [ACW's] treatment needs was undertaken by Ms Collyer on 25/02/2020. ... Ms Collyer recommended that [ACW] participate in the Connect and Respect program ... [and] concurrent individual intervention with Forensic Psychological Services. [ACW's] inclusion in the Connect and Respect Program and individual intervention was recommended to occur while housed in the [Redacted] Prison to optimise [ACW's] connection to culture and country. [ACW] was transferred from [Redacted] on 30/04/2020 to Broome Regional Prison and on to Acacia Prison on 1/05/2020 for the purpose of undertaking a neuropsychological assessment and has remained at the prison.

[ACW] commenced individual intervention with Senior Clinical and Forensic Psychologist, Dr Galloghly on 11/05/2020, while housed at Acacia Prison. He has attended 8 sessions of intervention at the time of assessment. Dr Galloghly reported that [ACW] has engaged adequately in the intervention sessions to date. The intervention sessions have covered areas related to [ACW's] alcohol and other drug use and emotional regulation, with ongoing assessment aimed at increasing insight into [ACW's] sexual offending behaviour. Dr Galloghly noted that [ACW] has demonstrated the capacity and motivation to meaningfully engage in the process of introspection with respect to his offending behaviour and maladaptive personality traits. Individual intervention is ongoing. [ACW] has not participated in the Connect and Respect Program.

98 During oral evidence, the following exchange occurred:[86]

ARCHER J: ... The individual intervention, when you say it was more appropriate ‑ more appropriate without any consideration being given as to whether or not he should also undergo a program?---There is a - the Department of Justice, I have been informed by the Director of Offender Programs and Psychological Services is that the ‑ ordinarily offenders that are on an interim continuing detention order are not afforded the opportunity to participate in group-based programs. This has been a policy directive that I have been informed of, and as such [ACW] was offered the opportunity to participate in individual intervention.

And are you aware of what the justification is for that policy?---The justification for the policy, I have been informed, is around the status of the prisoner or the offender within our system, which is a remand status once they're on an interim continuing detention order, which means they are not then scheduled into programs as a sentenced prisoner would be.

And is the Department aware of comments from judges of this court, including recently the Chief Justice, about the undesirability of waiting until a decision is made before you give someone treatment?---I believe they are, your Honour.

Right. Is there any plan, are you aware, to review that policy?---There has been a program review that was undertaken at the end of 2019 that one of the recommendations that came out of that program review was to include remand status prisoners and prisoners of a shorter duration of imprisonment into programmatic intervention. The Department of Justice is acting upon the recommendations of that report. However, they have not been implemented as yet.

Okay. So there has been a recommendation that it be changed?---Yes.

And the intention is to adopt that recommendation?---My understanding is that there is an intention to adopt some of the recommendations of that report.

All right. Okay?---But I couldn't say with any confidence specifically that that one would be adopted.

All right?---It certainly would be something that the director would be able to answer.

All right. So you've addressed the Connect and Respect program, and I think Mr Ritter was about to move on to something else. So you haven't answered why he didn't do anything ‑ why there kept being these reassessments. So he was assessed as he should do the sex offender treatment program, and then that wasn't available, or somebody said he shouldn't do that, he should do something else?---Yes.

What's the explanation for all of that?---So the initial recommendation was around [ACW] engaging in the indigenous sex offender treatment program. I have been informed that the indigenous sex offender treatment program ceased to be run in and around 2014. He was then ‑ those recommendations were then made for him to engage in, again, the indigenous sex offender treatment program which was not available. Then there was another reassessment because that program was not available. There was another reassessment around [ACW's] treatment needs, and it was deemed that it would be most appropriate for him to engage in a treatment program that addressed family and domestic violence, given that his index offending occurred within the context of family and domestic violence relationship. That is why the Connect and Respect program was recommended. And with respect to the subsequent clinical reassessment which occurred in February of 2020, Ms Collier outlined again that the nature of the index offence and the sexually violent behaviour within that index offence, because it occurred within a family and domestic or an intimate partner relationship, that the two streams, essentially, of treatment or intervention were most appropriate, a group‑based program looking at family and domestic violence, and also individual intervention to specifically address the sexually violent behaviour and risk for sexual reoffending.

And the gaps in time between, for instance, the indigenous sex offender treatment program ceasing to be run and somebody realising that they should then reassess [ACW]---?---Yes.

--- and then having that reassessment, and then another decision being made, what is the explanation for those extraordinary gaps in time?---Your Honour, I cannot offer an explanation for specifically why there were such significant gaps of time.

...

HAGER, MR: ... So is it your understanding that essentially in these proceedings the department simply waits for an individual to be subject to a detention order rather than an interim detention order before they act on programs generally?---That's the stance that I've been told that the department takes from a policy point of view, yes.

...

Her Honour asked of you whether regard is paid to comments by this court by way of judgment as to program - program provision or deficiencies therein. Was regard had to the published judgment of his Honour Fiannaca J in this matter earlier this year concerning the deficiencies in program provision?---Yes. And I say that because I raised those ‑ I raised that matter in particular with the manager and director.

When was that?---This week. Sorry, last week and beginning of this week.

Had that been a consideration prior to you raising it last week?---I was informed that it was, yes.

And of course since February of this year there's been eight counselling sessions?---Yes.

Can I ask in your professional opinion, given pathways, given the eight ‑ eight counselling sessions, is it surprising that [ACW] presents - I'll withdraw that and I'll rephrase. Given what you know about [ACW's] personal situation when he went into custody on his sentence of coming up to five years and what you know obviously about what treatment he's undertaken whilst in custody, are his unmet treatment needs surprising to you at all?---No.

And implicit in that is this proposition. Custodial services, the department, should have done a whole lot more for [ACW] in the time he's been in custody in terms of counselling, in terms of programs?---Yes.

ARCHER J: And part of the reason he has unmet treatment needs is because nobody tried to meet them?---Sorry, say that again, your Honour?

Part of the reason he has unmet treatment needs is because nobody tried to meet them?---Yes, partly, yes.

99 Ms Hasson gave evidence about the failings in the provision of programs. Ms Hasson also noted that the respondent could not remember much about the counselling he received as a juvenile. He also appeared not to have retained much learning from the Pathways program.[87]

100 In relation to why the respondent did not participate in the Indigenous Sex Offender Treatment Program, Ms Hasson said (citations omitted):[88]

There is conflicting information reported in the various documents contained in the Book of Materials - some information suggests [ACW] could not participate in the Indigenous Sex Offender Treatment Program due to lack of availability and others such as Dr Maule's report and Ms Collyer's re‑assessment suggest he is unsuitable. Further it would appear he was booked to participate in the Not Our Way Program as recommended at the completion of the Pathways program for Q4 2018 however he has not undertaken this program to date. The connect and respect program remains listed as a required program.

[ACW] has made insufficient progress toward addressing these issues whilst in prison for the index offences. He has not completed all intervention requirements as per his IMP and it must be stated that this has not been due to program refusal rather it would appear that his inability to complete programs has been due to lack of program availability. [ACW] has retained little of the content of the programs and counselling previously undertaken. He has limited insight into his offending behaviour and is mostly unaware of his high‑risk situations with the exception of alcohol and drug use.

Risk and need to protect - s 7(3)(h) and (i) factors

102 Both Dr Hall and Ms Hasson are of the opinion that the respondent is at high risk of committing a serious offence if not subject to a continuing detention order or community supervision order.

103 Dr Hall described the most likely risk scenario as follows:[90]

In the event that [ACW] were to reoffended sexually, the most likely scenario would be that of a physically violent sexual assault against an intimate partner. [ACW] would be seeking to gratify a sexual impulse but may also be discharging anger at having felt insulted or disrespected and be attempting to restore his sense of power. Psychological harm to victims would be significant including anxiety, post‑traumatic stress, depression and vulnerability to relationship problems. There is potential for the sexual violence to escalate to life-threatening violence, although it is unlikely that [ACW] would sexually offend with the intention of kill[ing] someone.

104 Ms Hasson said the most likely risk scenarios were:[91]

Scenario 1 - Repeat: The most likely future offence will be committed against an intimate partner and will involve [ACW] becoming persistent in his requests for sexual intercourse leading to violent and/or aggressive behaviour if his sexual advances are dismissed. A partner may feel coerced into engaging in sexual intercourse out of fear.

Scenario 2 - Escalate: In this scenario of escalation [ACW's] behaviour may follow a similar pattern to above however the offending behaviour may be directed toward a non‑intimate partner such as an acquaintance or even a stranger. If his demands for sex are not met, he is likely to become overly aggressive - physically and verbally assaulting the individual prior to and during the commission of any sexual offence. Use of or presence of a weapon is likely. The victim may be restrained and a weapon such as a knife, rocks or sticks may be used to coerce the victim into complying with his wishes. Penile‑vaginal penetration are likely in both of these scenarios. Physical harm is likely in both scenario one and two. Medical treatment may be required.

105 Dr Hall said that any reoffending could occur soon after the respondent is exposed to a high‑risk situation.[92] He said that:[93]

Warning signs that the risk is increasing or imminent would include disengagement from supervision and reporting, contact with antisocial peers, and evidence of poor protective behaviours by family and those supervising children within his immediate family and community context.

[ACW's] imminence of sexual offending will depend on the presence or absence of acute dynamic risk factors, most specifically areas of concern would be if he relapses back into alcohol and substance abuse, if his relationship with a significant other is deteriorating and there is an increase in conflict, feelings of mistrust or jealousy or refusal to engage in sex or sexual incompatibility. If [ACW] is feeling lonely, isolated, rejected, sexually frustrated, abandoned, or stressed he may be at increased risk of sexual offending. Monitoring of his emotional regulation and psychological wellbeing will be important as will be the quality of his relationships with others. Obtaining information about his intimate relationships is essential.

107 Dr Hall said it was difficult to estimate how often such offending would occur once it commenced, and indeed some occasions could go unreported.[95]

108 He said that the risk of the respondent offending in this way is long‑term given his young age.[96]

109 Dr Hall said that the future risk factors of most concern are:[97]

his limited access to professional services based on his proposed accommodation, problems with the proposed living situation, his anticipated problems coping with stress without use of substances, and a reasonable likelihood of poor compliance with supervision in the future.

The proximal risk factors associated with [ACW's] index offending appear to be attitudes of proprietariness, male privilege and sexual entitlement toward the complainant. Alcohol and substance misuse are also risk relevant factors.

Distal risk factors include long standing difficulties with emotional and behavioural regulation, personality features, impulsivity, recklessness, sexual promiscuity, attitudes that condone risky behaviour, limited capacity for empathy and remorse, an inability to maintain a stable intimate relationship, lack of personal boundaries, feelings of mistrust and disrespect and other negative attitudes towards women. A need to have power and control and a willingness to use violence and threats to achieve this is also noted.

111 I accept the opinions of Dr Hall and Ms Hasson. There is an obvious need to protect the community from this risk. The types of offences the respondent may commit are likely to cause significant harm.

112 The respondent's response to supervision in the past has been poor.[99]

113 The applicant provided a summary of the orders that the respondent was on when he committed each of the sexual offences. The summary was as follows:

Sexual Penetration of a Child under the age of 13 (Charges 387 ‑ 388/09)

1. Offences committed on 17 December 2009

2. At the time he was on bail for the breach of a Conditional Release Order that had been imposed on 31 July 2009 for the breach of an Intensive Youth Supervision Order imposed on 12 December 2008. The Order had been imposed for 5 x aggravated burglary in dwelling, 2 x aggravated burglary in place, 1 x trespass, 1 x give false personal details to police and 2 x aggravated burglary with intent.

3. He was being breached for non‑compliance but had also committed an offence of stealing a motor vehicle and other property offences for which he was imprisoned in the Don Dale Youth Centre in the Northern Territory during the Order.

4. He was released from NT on 4 December 2009.

5. The Children's Court President sentenced him on 23 March 2010 for 11 breaches of the Conditional Release Order to two months detention concurrent.

6. Part of the sentence was a Conditional Release Order meaning that he was eligible for release after serving 10 months of the two years detention backdated to 17 December 2009.

Sexual Penetration without Consent, GBH and aggravated robbery (Charges 61 ‑ 63/11)

1. Offence committed on 26 November 2011.

2. Committed whilst on unexpired portion of previous term of detention.

3. Sentenced to two years detention concurrent.

Aggravated Sexual Penetration (Charge 1143/15)

1. Committed against partner on 1 July 2015.

2. Committed whilst on an Intensive Supervision Order and a Community Based Order for:

1. Breach of Protective Bail Conditions (2388/14) (same victim);

2. (Att) Assault occasioning Bodily Harm (1835/14) (same victim);

3. Committed whilst on a Violence Restraining Order (Order 2015 00008 ‑ Order imposed protecting victim of the sexual penetration offence ‑ order imposed on 16 March 2015 for a period of two years).

114 It was confirmed by both Ms Hasson in her report, and Dr Hall in his oral evidence that the respondent's past performance was particularly poor and consistently so.[100]

115 Having regard to all of those factors, there are a number of matters of concern.

116 First, there is the respondent's attitude towards women.[101]

117 Second, there is the respondent's substance abuse problem.[102]

118 Third, there is the respondent's lack of understanding and acceptance of responsibility for his past offending.[103]

119 Having considered all of the s 7 factors, I am satisfied to a high degree of probability that it is necessary to make a restriction order to ensure adequate protection of the community against an unacceptable risk that the respondent would commit a serious offence. I therefore find that the respondent is a high risk serious offender.

120 Therefore, I must make a continuing detention order or a supervision order. As noted earlier, due to s 29 of the HRSO, I will only have a choice if the respondent satisfies me on the balance of probabilities that he would substantially comply with the standard conditions.

Would he substantially comply with the standard conditions?

121 As noted earlier, a court cannot make a supervision order unless it is satisfied, on the balance of probabilities, that the offender will 'substantially comply' with the standard conditions. The onus of proving this is on the offender.[104]

122 I have had regard to the factors outlined earlier.[105]

123 In this context, the most relevant of the standard conditions are those set out in s 30(2)(d) and (f) of the HRSO Act. These sub‑paragraphs relevantly impose conditions that the offender comply with any reasonable direction of a community corrections officer and not commit a serious offence during the period of the order.

124 In terms of the factors relevant to the assessment, of particular relevance here is the respondent's history of non-compliance, his impaired capacity to comply as a result of the complete failure to meet his treatment needs and the unavailability of suitable accommodation.

125 I have also had regard to 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. Any breach that might occur is likely to be a further serious offence.

126 In my view, the respondent's poor response to supervision in the past is of particular relevance.

127 Dr Hall said that there was a reasonable likelihood of poor compliance with supervision in the future.[106] In saying this, Dr Hall was not specifically referring to the risk that the respondent would fail to comply with the standard conditions. Nevertheless his opinions are relevant to that assessment.

128 Having regard to all of the evidence, I am not satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions. In particular, I am not satisfied he would substantially comply with any reasonable direction of a CCO or the requirement not to commit a serious offence.

129 If I am wrong and the respondent had satisfied me that he would substantially comply with the standard conditions, I would then have needed to decide whether to make a supervision order or a continuing detention order.

130 Having regard to all of the evidence, I would have been left in doubt as to whether the conditions of a supervision order would have adequately protected the community. Therefore, I would have made a detention order in any event.

131 The evidence outlined above demonstrates that the respondent has a number of significant treatment needs.[107]

Accommodation for a person on a supervision order is not simply a place to live. The location and type of accommodation are factors that are integral to any proper assessment of the risk of reoffending. The absence of suitable accommodation makes it impossible to be satisfied that the supervision order is presently a viable option.

133 The evidence shows that there are problems with each of the accommodation options proposed by the respondent.[109]

Conclusion - whether the risk can be adequately managed in the community

134 The fact that the respondent has unmet treatment needs is not his fault.

135 The respondent has been in custody for five years. Some of the time lost is attributable to the cancellation of a program and COVID‑19. Much of the time lost was unable to be explained and appeared to be unjustifiable. For example, the delays in reassessing him could not be explained.

136 More recently, since being on an interim detention order, the respondent has not been offered any programs due to the policy described by Dr Riordan.

137 The policy exists despite what the Chief Justice said in The State of Western Australia v Rao.[110] In particular, his Honour pointed out that it is not in the interests of the community that an offender with known treatment needs not have those needs addressed until such time as they are made the subject of a continuing detention order.[111]

138 The policy also exists despite what Fiannaca J said in ACW at [138] ‑ [146].

139 As counsel for the respondent points out, there is nothing unusual about the respondent's treatment needs. They are not unique to him.

140 In addition, the fact that there are significant problems with each of the accommodation options is not surprising. The respondent's country is in the [Redacted] region. His family and community live there.

141 The respondent's father lives in [Redacted] where, among other things, GPS tracking is not possible.

142 The only other remotely realistic option is for the respondent to live with his sister. However, due to her own issues and circumstances, it cannot be said that her home would be free of alcohol or that the respondent might not be left with, in effect, unsupervised children.

143 There are no departmental supported accommodation options in the [Redacted]. In ACW, Fiannaca J noted that:[112]

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 division 2 hearing.

[T]he desirability of accommodation being found in the [Redacted] is obvious ... it would be expected that, consistent with the approach that had been taken by the Department for some time, such assistance will be provided to the respondent.

145 The respondent is a high risk serious offender. The risk that he will commit a further serious offence, if not subject to a continuing detention order or supervision order, is high.

146 A court cannot make a supervision order unless it is satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions. For the reasons I have given, I am not satisfied of this. I therefore cannot make a supervision order.

147 In any event, even if I had been so satisfied, I would not have made one. I am not satisfied that a supervision order would reduce the risk to a reasonably acceptable level that ensures adequate protection of the community.

148 The respondent has significant outstanding treatment needs. In my view, these must be addressed before he is released.

149 I have reached this conclusion not simply because he has outstanding treatment needs. In my view, the fact that a high risk serious offender has outstanding treatment needs will not inevitably mean a continuing detention order must be made.[114] While that may usually be the outcome, it is possible to conceive of circumstances where the community could be adequately protected by the needs being met in the community.

150 This is not such a case. The respondent's outstanding treatment needs are significant and multi‑faceted, and include his substance abuse problems and his attitudes towards women. Until they are addressed, at least in part, the community would not be adequately protected by a supervision order. The type of offence he is most likely to commit is very serious and would have a significant impact on the victim.

151 Accordingly, I would make a continuing detention order.

152 Counsel for the respondent, Mr Hager poignantly quoted from the judgment of McKechnie J in The Director of Public Prosecutions (WA) v Alvisse [No 7].[115] In that case his Honour said:

The community would be adequately protected by a supervision order with a condition that the respondent reside in an appropriate psychiatric facility. The respondent's mental health is deteriorating with his continued detention.

But because of longstanding Executive inaction I must expressly decline to rescind the continuing detention order.

The civilisation of a society can be judged by the way it treats its prisoners said Winston Churchill.

Perhaps nobody much cares about a short, stout middle aged man with a diagnosis of paedophilia and deteriorating mental health likely to be in prison forever.

But his case diminishes us all.

153 Mr Hager submitted that the absence of supported accommodation options in the [Redacted] was yet another layer of the acute and chronic disadvantages suffered by indigenous offenders.

154 I am not aware of the competing demands on department resources. It is also not for me to comment on policy decisions. My role is to make a decision under the Act. Having said that, it is not the purpose of the Act to keep people in custody for no good reason. Nor does the department want to do this. Nor is that in the community's best interests. The department seeks to avoid that happening by providing treatment and supporting accommodation, so that treatment needs are met and people can be safely released. To facilitate the department in achieving that in the respondent's case, it is appropriate to set out what the evidence reveals the respondent needs are.

155 He needs weekly counselling of at least one to two hours unless his treating psychologist considers that he would be better assisted by less regular and/or shorter sessions. His treatment needs would best be met if that decision was made by his treating psychologist, unconstrained by any resource factors.

156 The respondent also needs to be immediately enrolled in the next available Connect and Respect or NOW program, which I understand will be in April in the [Redacted].

157 The respondent also needs the department to assist him with accommodation in the [Redacted] so that he can ultimately be released when his treatment needs have been met, at least in part, such that he would not pose an unacceptable risk if released into the community into that accommodation on a supervision order.

158 The Act is not intended to keep offenders locked up forever. It is intended to keep offenders in custody until their treatment needs have been sufficiently addressed, and appropriate accommodation found such that they would not pose an unacceptable risk if released on a supervision order.

159 The respondent has done some terrible things, and caused significant harm to his victims. However, he has served the terms of imprisonment that a judge believed was proportionate to his culpability.

160 The respondent's treatment needs have not been met. At least in part this is because no one really tried to meet them in the last five years. No part of this is his fault.

161 The respondent's accommodation options are problematic. No part of this is his fault.

162 If the respondent's treatment needs continue to not be met, and if suitable accommodation is not found, he will continue to remain in custody. He is 26 years old. He is not a lost cause.

163 I am sure that the department will make every effort to ensure that everything that can be done is done by the time of the review of this continuing detention order in one year's time.

164 For these reasons, I would make a continuing detention order.

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

[1] Part 1 of the HRSO Act, not relevant to these proceedings, came into effect on 9 July 2020.

[4] This section reproduces, or draws from, what I have written in earlier decisions, such as The State of Western Australia v Decke [No 4] [2020] WASC 263 and The State of Western Australia v TJD [No 5] [2020] WASC 421.

[5] The State of Western Australia v ZSJ [2020] WASC 330 [5], [30] ‑ [31] (see also [32] ‑ [63]) and The State of Western Australia v Narrier [No 6] [2020] WASC 349 [4], [29] ‑ [30].

[6] Each phrase is defined in s 3 of the HRSO Act.

[7] These terms are defined in s 26 and s 27 of the HRSO Act respectively.

[8] See the summary in The State of Western Australia v ACW [2020] WASC 177 [9] ‑ [17]. As there noted, s 8(1) of the DSO Act used a substantially similar phrase (with the only significant difference being the change from 'serious sexual offence' to 'serious offence').

[9] See the definition of 'serious offender under restriction' in s 3 of the HRSO Act.

[10] In the DSO Act, this requirement was in s 11(1).

[11] Section 46(1) of the HRSO Act. The phrase 'high risk serious offender' is defined in s 7 of the HRSO Act.

[14] In relation to the regime under the DSO Act, see Italiano v The State of Western Australia [2009] WASCA 116 [46] (Buss JA).

[15] In relation to the regime under DSO Act, see Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63], and expressly approved by Steytler P and Buss JA in Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307.

[16] HRSO Act, s 7(2). And, in relation to the equivalent provision in the DSO Act, see Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107 [41], [43].

[18] In relation to the equivalent provision in the DSO Act, see GTR [28].

[19] In relation to the equivalent provision in the DSO Act, see GTR [34].

[21] See the definition of 'standard condition' in s 3 of the HRSO Act.

[22] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [52].

[26] The first four factors his Honour drew from Kim v Witton [1995] FCA 1508; (1995) 59 FCR 258. The next four factors were from The State of Western Australia v A [2018] WASC 250 [123]. The last factor was from The State of Western Australia v Misko [No 6] [2018] WASC 389 [196].

[28] Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312 [14]. See also The State of Western Australia v West [2013] WASC 14 [52].

[29] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33], citing Williams [57].

[30] See, in relation to the DSO Act, GTR [97].

[31] West [52(j)], citing The State of Western Australia v Latimer [2006] WASC 235; and Decke. See also Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 [22].

[32] DAL [No 2] [33], citing Williams [57], [86]; Griffiths [20], [103], [107]; and Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [16].

[49] BOM pages 635 ‑ 636. And see the report of Ms Hasson at BOM pages 569 ‑ 570.

[57] BOM page 654 [104]. And see the report of Ms Hasson at BOM pages 569 ‑ 570 (in relation to the need for substance abuse treatment).

[59] BOM page 656. See also BOM page 654.

[61] Some of these conclusions are referenced in footnotes to Dr Hall's evidence.

[63] BOM page 577. See also pages 587 ‑ 588.

[78] GTR [178]. See also Griffiths [66].

[79] ACW [110] ‑ [127]. See also BOM pages 536, 576 ‑ 578 and 596 ‑ 597.

[84] ACW [134]. See also ACW [131].

[101] BOM pages 647 [74], 649 ‑ 650 [82] (Dr Hall). BOM pages 570 [11], 587 [93] (Ms Hasson). BOM pages 600 ‑ 601 [40(c)] (Dr Riordan).

[102] BOM pages 649 [81], 656 [111] (Dr Hall). See also ts 11. BOM pages 569, 582 [65] (Ms Hasson). BOM page 602 [45(a)] (Dr Riordan). See also ts 41.

[103] BOM pages 647 [75], 651 [89], 656 [112] (Dr Hall). BOM pages 576 ‑ 577 (Ms Hasson). BOM page 602 [46] (Dr Riordan).

[105] See under the heading 'Precondition to a supervision order - compliance with standard conditions'.

[107] See, in particular, BOM pages 600 - 601 (Dr Riordan), BOM page 654 [104] (Dr Hall) and BOM page 587 (Ms Hasson).

[108] The State of Western Australia v Corbett [No 5] [2017] WASC 115 [80].

[109] See in particular the evidence of Dr Riordan, set out earlier, and BOM pages 611 ‑ 616 (Ms MacQuarrie) and BOM pages 645 ‑ 646 (Dr Hall).

[110] The State of Western Australia v Rao [2019] WASC 93 [14], [135] ‑ [142].

[114] See Rao [137], [141] and ZSJ [254] ‑ [257].

[115] The Director of Public Prosecutions (WA) v Alvisse [No 7] [2014] WASC 227 [31] ‑ [35].