THE STATE OF WESTERN AUSTRALIA -v- ATKINSON [No 2] [2020] WASC 379 (21 October 2020)

1. The State's evidence comprised the oral testimony of five witnesses, namely Dr Wynn Owen,[2] Consultant Forensic Psychiatrist; Ms Hasson,[3] Forensic Psychologist; Dr Poli,[4] Senior Forensic Psychologist; Ms Comery,[5] Senior Community Corrections Officer; and Ms Cassam,[6] Team Leader, Community Offender Monitoring Unit, and a Book of Materials that comprised the relevant documentary material including reports.[7]

Legal principles High Risk Serious Offenders Act 2020 (WA)

1. On 9 July 2020 pt 1 of the HRSO Act commenced. Further parts of the HRSO legislation that are relevant to this application came into force on 26 August 2020. Upon commencement of those parts of the HRSO Act, the DSO Act was repealed.
2. By s 124(1) of the HRSO Act, as the application made under the DSO Act had not been determined prior to the commencement of the HRSO Act, the application and these proceedings continue and may be determined under the HRSO Act. For the purposes of determining the application under the HRSO Act, the application is taken to have been made under the corresponding provision of the HRSO Act. Pursuant to s 125 of the HRSO Act, any order made or direction given under the DSO Act continues in effect and is taken to have been made or given under the corresponding provision of the HRSO Act.
3. I agree with the observations of Fiannaca J in The State of Western Australia v ZSJ[8] regarding the construction of the HRSO Act. In particular, the HRSO Act operates largely as the DSO Act did in respect of serious sexual offences. Previously the issue to be determined was whether the respondent was a 'serious danger to the community'. The question now is whether the respondent is a 'high risk serious offender', but the matters about which the court must be satisfied are essentially the same.
4. Fiannaca J also expressed the view that given that the concepts and criteria in both statutes are substantially the same, the jurisprudence established in respect of the DSO Act remains relevant in considering and applying the HRSO Act, with appropriate adaptation in cases involving non-sexual offences. Derrick J in The State of Western Australia v Narrier [No 6][9] expressed the view that the case law decided under the DSO Act in relation to applications for review of continuing detention orders and supervision orders remains relevant to the determination of such applications under the provisions of the HRSO Act. I respectfully agree with the views expressed by Fiannaca J and Derrick J. Accordingly, I will refer to cases which have been determined under the DSO Act when determining this application which is now a proceeding under the HRSO Act.
5. Pursuant to s 35 of the HRSO Act the State may make an application under the HRSO Act where a person is a serious offender under custodial sentence. The term 'serious offender under custodial sentence' is defined in s 3:

serious offender under custodial sentence means a person -

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

(b) who -

(i) is under a custodial sentence for an offence or offences other than a serious offence; and

(ii) has been under that sentence at all times since being discharged from a custodial sentence for a serious offence;

1. At the time this application was made Mr Atkinson was serving a term of imprisonment for a 'serious offence' as defined by s 3 and s 5 of the HRSO Act.
2. A 'serious offence' is defined by s 5 of the HRSO Act which relevantly provides:
   1. Term used: serious offence

(a) it is specified in Schedule 1 Division 1; or

(b) it is specified in Schedule 1 Division 2, and is committed in the circumstances indicated in relation to that offence in that Division.

(a) it was an offence under a written law that has been repealed; and

(b) the offender's acts or omissions that constituted the offence under the repealed provision would constitute a serious offence under subsection (1).

(3) An offence is a serious offence if it is an offence of conspiracy, attempt or incitement to commit an offence that is a serious offence under subsection (1) or (2).

1. Mr Atkinson has committed offences that come within this category. Mr Atkinson has also committed a number of offences that are not characterised as serious offences. Offences of other types may be relevant in assessing the risk of serious offending being committed in the future because other offences may be connected to behaviour which has the real potential to lead to serious offending.[10]
2. Section 7(1) of the HRSO Act provides that an offender is a high risk serious offender if the court 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 unacceptable risk that the offender will commit a serious offence. If the court is satisfied that there is an unacceptable risk of the kind described in s 7(1) of the HRSO Act, it necessarily follows that the person concerned is a high risk serious offender.[11]
3. Section 7(2) of the HRSO Act provides that the State has the onus of satisfying the court that a person is a high risk serious offender. The court has to be satisfied by acceptable and cogent evidence and to a high degree of probability. This is a standard that is greater than a finding on the balance of probabilities and less than a finding of beyond reasonable doubt, but is otherwise incapable of further definition.[12] This does not necessarily mean that the risk must be at some high percentage of probability; a risk may be less than 50% yet still be unacceptable. However, the court must identify what it is that constitutes the risk and what makes it unacceptable and then consider whether or not those factors have been proved to the requisite standard, that being to a high degree of probability, furnished by acceptable and cogent evidence.[13]
4. A finding that there is an unacceptable risk involves a balancing exercise requiring the court to have regard to, among other things, the nature of the risk (the commission of a serious offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition whilst having regard, on the other hand, to the serious consequences for Mr Atkinson if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order).[14]
5. An unacceptable risk in the context of s 7(1) of the HRSO Act is therefore a risk which is unacceptable having regard to a variety of considerations. These may include the likelihood of the person offending, the type of serious offence which the person is likely to commit (if that can be predicted) and the consequences of finding that an unacceptable risk exists. I am required to consider whether, having regard to the likelihood of Mr Atkinson offending and the offence to be committed, the risk of that offending is so unacceptable that, notwithstanding the fact that Mr Atkinson has already been punished for the offences he has committed, it is necessary in the interests of the community to ensure that he is subject to further control or detention.[15]
6. Section 7(3) of the HRSO Act sets out a number of matters that the court must have regard to in considering whether a person is a serious danger to the community. Those matters are:

(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.

1. I note that s 7(3)(j) of the HRSO Act provides that the list of matters to be considered by the court is not limited by those otherwise delineated in the subsection.
2. While s 7(3)(g) of the HRSO Act provides that the court must have regard to the offender's criminal record in deciding whether a person is a serious danger to the community, the mere fact that a person has committed previous offences does not necessarily mean that there is an unacceptable risk that the person would commit a serious offence in the future. The relevance of a prior criminal record would depend on the nature of the offences committed, the number of offences and the period of time over which they occurred. However, past behaviour is often a good indicator of future conduct.
3. If a court determines that an offender is a high risk serious offender then the court is required to make a restriction order.[16]
4. The term 'restriction order' is defined in s 3 of the HRSO Act to mean 'a continuing detention order' or 'a supervision order'. The terms 'continuing detention order' and 'supervision order' are defined in s 26 and s 27 respectively in similar terms to those that were used in the DSO Act.[17]
5. Section 26 provides:

(1) In this Act a continuing detention order in relation to an offender is an order that the offender be detained in custody for an indefinite term for control, care, or treatment.

(2) A continuing detention order has effect in accordance with its terms from the time the order is made until rescinded by a further order of the court.

(1) In this Act a supervision order in relation to an offender is an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate, in accordance with section 30.

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

(a) from a date stated in the order; and

(b) for a period stated in the order.

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

1. In making a determination between those two alternatives the paramount consideration is the need to ensure the adequate protection of the community.[18]
2. However, other considerations do apply. The use of the word 'adequate' in the section indicates that a qualitative assessment is required. It cannot be assumed that the most preventative action is detention and that therefore the protection of the community will always favour such an order.[19]
3. Given the more onerous nature of a continuing detention order, the scheme of the HRSO Act requires that the court do no more than is necessary for the continuing control, care or treatment of the offender to achieve an adequate degree of protection of the community.[20]
4. Section 29 of the HRSO Act provides that 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 of the order. The onus of proof is on the respondent offender pursuant to s 29(2) of the HRSO Act.
5. The words 'will substantially comply with' should be given their ordinary meaning, consistent with the purposes of the legislation and 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 offence.[21]
6. The term 'standard condition', in relation to a supervision order, is defined by s 3 of the HRSO Act as meaning a condition under s 30(2) of the HRSO Act that must be included in the order. Section 30(2) of the HRSO Act provides seven conditions that must be included in any court ordered supervision order. Therefore, Mr Atkinson must satisfy the court that he will substantially comply with those standard conditions before the court can make a supervision order. The seven standard conditions set out in s 30(2) of the HRSO Act require that the person:

(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.

1. I now turn to the matters relevant to determining whether or not Mr Atkinson is a high risk serious offender pursuant to s 7 of the HRSO Act. I will do so by considering the evidence in the context of the factors under s 7 of the HRSO Act.

Factors under s 7 of the HRSO Act History of offending and antecedents - s 7(3)(c), s 7(3)(d) and s 7(3)(g)

1. In deciding whether a person is a high risk serious offender the court must have regard to the person's antecedents and criminal record. That requires that all prior offences be considered, to the extent that such offences are relevant to the question of whether the person is a high risk serious offender within the meaning of the HRSO Act (whether they be serious offences or not). It also requires consideration of the person's antecedents, including the context in which the past offences were committed.
2. The criminal record and antecedents are relevant in and of themselves, but are also relevant to whether the person has a propensity to commit serious offences in the future.[22] The criminal record and antecedents are also relevant as to whether there is any pattern of offending behaviour.[23]

1. Mr Atkinson is 63 years of age having been born on 5 July 1957. Mr Atkinson has no dependants. Mr Atkinson's childhood was difficult for the reason that his mother was an alcoholic and his father was deaf. The consequence was that his father, due to his deafness, was unable to provide Mr Atkinson with much emotional support and his mother was emotionally detached because of her personal problems. Mr Atkinson completed his education in Year 10 and subsequently completed an apprenticeship in motor mechanics. Mr Atkinson suffered a heart attack in 2006, has chronic obstructive pulmonary disease and also has suffered kidney failure.
2. Mr Atkinson's sexual offending involves offences committed against multiple female and male children in Western Australia. The offending is summarised in a chronology of offending which was received in evidence.[24]

1. On 12 May 2000, Mr Atkinson pleaded guilty to 11 sexual offences which were committed against two girls aged between 7 and 8 years of age.[25] The offences comprised seven counts of indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Criminal Code; two counts of indecently recording a child under the age of 13 years, contrary to s 320(6) of the Criminal Code; and two counts of sexual penetration of a child under the age of 13 years, contrary to s 320(2) of the Criminal Code.[26] The offending occurred on unknown dates between 31 December 1998 and 19 February 2000.
2. Mr Atkinson was 41 ‑ 42 years of age at the time of the offending. Counts 1 ‑ 3 involved offending against the first female victim who was 7 ‑ 8 years of age.[27] Mr Atkinson touched her on the bare vagina on three separate occasions while she was in bed. Counts 4 ‑ 11 relate to the second female victim who was 8 years of age. The eight counts relating to the second victim were representative of conduct that occurred over approximately one year, and included touching the child's vagina, procuring her to urinate in front of him and recording her doing so, procuring her to touch his erect penis, and sexually penetrating her vagina with his finger and a cotton bud. The offending ceased when the second victim told her mother.
3. On 20 June 2000, Macknay DCJ imposed a term of imprisonment of 6 years with eligibility for parole.[28] On 11 May 2002, Mr Atkinson was released on parole.[29]
4. The sexual offences contrary to s 320 of the Criminal Code are serious offences under the HRSO Act.

1. On 10 November 2015, Mr Atkinson pleaded guilty to 15 counts on an indictment that comprised 10 counts of indecently recording a child under the age of 13 years, contrary to s 320(6) of the Criminal Code; four counts of possessing child exploitation material, contrary to s 220 of the Criminal Code; and one count of producing child exploitation material, contrary to s 218 of the Criminal Code.[30]
2. In addition, Mr Atkinson was convicted of four charges on a s 32 notice. The offences comprised one charge of breaching reporting obligations contrary to s 6 of the Community Protection (Offender Reporting) Act (PE 17466/2015), one charge of consorting with a child sex offender contrary to s 557K of the Criminal Code (PE 12218/2015) and two charges of possessing an indecent or obscene article (PE 31452/2015 and PE 17467/2015).[31]
3. The facts with respect to the offending were accepted by Mr Atkinson at the sentencing hearing.[32] Counts 1 ‑ 11 on the indictment involved offending against two children, a male and a female. Mr Atkinson began offending against the two victims when the female child was 5 years of age and the male child was 9 years of age. Mr Atkinson was 53 years of age at the time. Mr Atkinson began offending after gaining the trust of the children's family and taking on a grandfather role with the two children.
4. Count 1 involved Mr Atkinson producing child exploitation material contrary to s 220 of the Criminal Code by digitally enhancing an innocent picture of the two children to depict them urinating.
5. Counts 2 ‑ 11 on the indictment involved offences of indecently recording a child under the age of 13 years contrary to s 320(6) of the Criminal Code. Count 2 involved a photograph of a child aged 5 ‑ 6 years lying in a bath naked with her genitalia visible.
6. Counts 3 ‑ 4 involved two photographs of the female child naked with her genitalia showing or covered by her hand. Count 5 is in respect of a video recording of the female child urinating, taken from a very close range showing explicitly her vagina. In relation to count 6, the female child is filmed completely naked hanging upside down from the handlebar of a treadmill at Mr Atkinson's request. Counts 7 ‑ 8 involved Mr Atkinson taking a photograph of both children standing together naked and facing the camera. Both children's genitalia are clearly visible.
7. Count 9 involved a photograph of the male child completely naked and facing the camera with his genitalia showing. In count 10, the offending involved the female child being recorded on the toilet with her legs apart and her vagina clearly exposed whilst pointing to the contents of the toilet. Count 11 is in respect of an image of the female child lying on her back in the bath with a sponge covering her genitalia.
8. The offending against the two children was investigated when the child exploitation material the subject of counts 12 ‑ 15 was found by police during a search of Mr Atkinson's home.
9. Counts 12 ‑ 15 on the indictment involved offences of possessing child exploitation material contrary to s 220 of the Criminal Code. The child exploitation material comprised approximately 46,500 images and videos. The images were assessed as being in categories 1 ‑ 6 based on the nature and content of material.[33] The children in categories 1 ‑ 5 were nearly all prepubescent children with some being babies. A number of the images were described by the sentencing judge as being 'particularly disgusting and depraved' including very young children engaging in sexual acts.[34] The majority of the images were in category 1, being depictions of children with no sexual activity but who may be naked, showing underwear, in a sexually suggestive pose or urinating.[35]
10. On 10 November 2015, her Honour Davis DCJ imposed a term of imprisonment of 5 years 6 months with respect to the 15 counts on the indictment and for the four charges.[36] The sentence was backdated to commence on 7 March 2015 with Mr Atkinson being made eligible for parole.
11. The sexual offences contrary to s 320 of the Criminal Code and the child exploitation offences contrary to s 219 of the Criminal Code are serious offences under the HRSO Act.

1. Mr Atkinson has a history of other offending in Western Australia which comprises of convictions for driving offences.[37] Mr Atkinson has not been charged with any prison charges or has received any negative reports.[38]

Propensity to commit serious offences in the future - s 7(3)(c)

1. The word 'propensity' is taken to have its ordinary meaning in the context of the criminal law. In Director of Public Prosecutions (WA) v GTR Murray AJA stated that:[39]

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

1. Mr Atkinson has committed serious offences against children. Mr Atkinson acknowledges that he has deviant sexual interest in female children. The convictions permit the inference to be made that Mr Atkinson has a tendency to commit sexual offences against young girls

Whether or not there is any pattern of offending behaviour - s 7(3)(d)

1. Dr Wynn Owen expressed the opinion that Mr Atkinson's offending indicates a sexual preference for prepubescent females with his contact offending involving two girls aged between 7 and 8 years and his offences including the indecent dealing involved two victims being a female aged between 5 and 7 years and a male aged 9 years.[40] The child exploitation images indicate a non‑exclusive preference for female children.

Efforts to address offending behaviour - s 7(3)(e); and whether or not the participation in any rehabilitation program has had a positive effect - s 7(3)(f)

1. I must also consider if Mr Atkinson has made any efforts to address the cause or causes of his offending behaviour, including by participating in any rehabilitation programs. Further, whether or not the participation in any rehabilitation program has had a positive effect.
2. Mr Atkinson's history of treatment interventions and programs is outlined by both Dr Wynn Owen[41] and Ms Hasson[42].

1. Between 5 September 2001 and 28 March 2002, Mr Atkinson completed the Intensive Sex Offender Treatment Program.[43] Mr Atkinson was described as psychologically immature but willing and motivated to participate in treatment. The report noted that Mr Atkinson's offending was often based on his desire to enact his sexually deviant fantasies. Prior to commencing the program, Mr Atkinson's risk of sexual reoffending was assessed as being 'medium low'. After completion of the program, Mr Atkinson's risk of sexual reoffending was assessed as being 'low'.[44]
2. Between 17 June 2002 and 18 November 2002, Mr Atkinson completed the Sex Offender Maintenance Program.[45] At the conclusion of the program, Mr Atkinson's risk of sexual reoffending was assessed as being 'low'.
3. On 8 February 2017, Mr Atkinson commenced an Intensive Sex Offender Treatment Program. However, Mr Atkinson was only able to complete 28 of the 107 planned sessions due to ill health. The authors of the Non-Completion Report state that Mr Atkinson was scored on the STATIC‑99R tool. Mr Atkinson's score placed him in the high risk category for being charged or convicted of another sexual offence. Further, Mr Atkinson was assessed using the STABLE‑2007 tool which measures dynamic sex offender risk factors. Mr Atkinson was assessed as being of 'high' risk of sexually offending if his treatment needs were not met.[46]
4. The Non-Completion Report recommended that Mr Atkinson be afforded another opportunity to undertake the course given that his treatment needs remain 'unmet'.[47]
5. Between 7 November 2018 and 12 August 2019, Mr Atkinson completed 21 counselling sessions comprising one hour each.[48] The Psychological Intervention Completion Report confirms that Mr Atkinson engaged positively. The report also confirms that Mr Atkinson admitted that he still continued to have sexual thoughts about his child victims.
6. Ms Hasson expressed an opinion in respect of Mr Atkinson's account of his treatment history. Ms Hasson stated that Mr Atkinson expressed positive views about all the programs and counselling he has engaged in to address his sexual offending behaviour.[49] Mr Atkinson stated that he believes he has developed a good level of insight and self awareness about his offending behaviours.

Psychiatric reports and extent to which Mr Atkinson cooperated with psychiatric examinations - s 7(3)(a)

1. Dr Wynn Owen produced one report, under s 37 of the DSO Act, dated 27 July 2020[50] and also gave oral testimony at the hearing of the application.[51] In my view, it is evident from the reports and the evidence of Dr Wynn Owen that Mr Atkinson cooperated when he was examined.
2. Dr Wynn Owen used the diagnostic tool DSM‑V to determine the psychiatric diagnosis for Mr Atkinson. The DSM‑V professional diagnostic tool is an internationally recognised diagnostic system of the American Psychiatric Association. The DSM‑V is a comprehensive and highly detailed classification system for psychiatric disorders based on clinical description rather than presumed causation.
3. Dr Wynn Owen stated that Mr Atkinson had developed a pattern of offending against prepubescent children which is called paedophilia, non‑exclusive type and preferably females. Dr Wynn Owen stated that Mr Atkinson acknowledged a long standing sexual interest in prepubescent children.[52] Dr Wynn Owen also stated that Mr Atkinson had an avoidant personality which is a pervasive pattern of social inhibition, feelings of inadequacy and hypersensitivity to negative evaluations.
4. Dr Wynn Owen used actuarial instruments and structured professional judgment tools to assess risk. Dr Wynn Owen used the STATIC‑99R, which is an actuarial tool designed to assess the long‑term potential for sexual recidivism amongst adult male sex offenders. The STATIC-99R score of Mr Atkinson was in the level IVa or 'above average risk' range. In routine samples with persons with the same score as Mr Atkinson the five year sexual recidivism rate is 11% (between 10% and 12.1%). The STATIC‑99R high risk/high needs group of offenders include those individuals who have at least one of the following: significant unmet treatment needs, a mental illness or who are being assessed for indefinite detention or post sentence supervision. Dr Wynn Owen stated individuals in this sub cohort whose STATIC‑99R score was the same as Mr Atkinson had a 17.3% five year recidivism rate and a 27.3% 10 year recidivism rate.[53]
5. Dr Wynn Owen also utilised the Hare Psychopathy Checklist-Revised (PCL‑R), which assesses the extent to which an individual's personality structure conforms to the clinical construct of psychopathy. The PCL‑R score is recognised as a useful indicator of likely future recidivism for general, violent and, to a lesser degree, sexual offending. The score obtained from this test can be an important component of other risk assessment tools including structured clinical guides. The Risk for Sexual Violence Protocol (RSVP) is such a guide and requires consideration of a comprehensive range of risk factors for sexual offending, with emphasis given to the manageability of the risk of future sexual violence.
6. Dr Wynn Owen determined that for Mr Atkinson the risk factor of chronicity of sexual violence is definitely present. Further, the risk factors of diversity of sexual violence and escalation of sexual violence are also definitely present. Further, the risk factor of psychological coercion of sexual violence is definitely present. Dr Wynn Owen stated that the risk factor of attitudes that support or condone sexual violence has definitely been present in the past.
7. Dr Wynn Owen stated that Mr Atkinson does not currently have a major mental illness or any evidence of cognitive or intellectual impairment. However he has been previously diagnosed with and treated for depression. Dr Wynn Owen stated that Mr Atkinson has a number of medical conditions, which may reduce his risk of future offending through reduction in libido and sexual thinking, namely hypertension, heart disease and renal failure. Though a number of these chronic conditions were present when Mr Atkinson committed the index sexual offences.
8. Dr Wynn Owen stated that he was of the opinion that Mr Atkinson presents a high risk of future sexual offending if not subject to detention or community supervision. Dr Wynn Owen stated that Mr Atkinson's past offending and the presence of sexual deviance are the most significant factors contributing to this assessment of risk.[54]
9. During his testimony Dr Wynn Owen expressed the opinion that Mr Atkinson's attitude towards supervision satisfies him that the risk may be managed in the community by a supervision order.[55] Dr Wynn Owen stated that in his opinion Mr Atkinson would comply with the supervision order if given the opportunity.[56]

1. Ms Hasson, Forensic Psychologist, provided a report[57] and gave evidence at the hearing.[58]
2. Ms Hasson assessed the risk using a Structured Professional Judgment (SPJ) combining actuarial (STATIC-99R & PCL-R) and non‑actuarial (RSVP) tools, in combination with a psychological assessment and formulation.
3. Ms Hasson determined that Mr Atkinson's STATIC‑99R score was four placing him at risk level IVa (above average risk) for being charged or convicted of another sexual offence. Ms Hasson stated that on average, for offenders with a STATIC‑99R of four, the sexual recidivism rate at the five year mark in a routine sample is 11% with a confidence interval between 10% and 12.1%.
4. Ms Hasson assessed Mr Atkinson using the PCL‑R. Mr Atkinson's total score on the PCL‑R indicates he does not fit the construct of psychopathy. Further examination of both facet and factor scores revealed no significant concerns. Ms Hasson assessed Mr Atkinson's risk of sexual reoffending using the RSVP. Ms Hasson identified a number of risk factors including chronicity of sexual violence, problems with self‑awareness, problems with stress or coping and sexual deviance.[59]
5. Ms Hasson stated that based on the current assessment Mr Atkinson presents at an 'above average or high risk of sexual reoffending' if not subject to a continuing detention order or community supervision order.[60] Ms Hasson stated that Mr Atkinson has a 'good insight into his offending behaviour and an awareness of his high risk situations both internal and external'.[61] Ms Hasson stated that areas of focus in individual treatment and supervision include monitoring deviant sexual thoughts and arousal, discussing and exploring problems and issues that are likely to arise in intimate and non‑intimate relationships, assisting Mr Atkinson to initiate and explore friendships and to seek suitable employment.[62]
6. Ms Hasson recommended that Mr Atkinson should be subject to a supervision order of at least five years, with the focus of Mr Atkinson's engagement with the order to be developing a positive and fulfilling lifestyle and community engagement consistent with his age. During her testimony Ms Hasson confirmed that in her opinion the risk of reoffending may be managed in the community setting under a supervision order.[63]

1. Dr Poli, Senior Forensic Psychologist, provided a DSO Management Plan dated 17 July 2020.[64] Dr Poli used the STABLE‑2007 to identify outstanding treatment targets that warrant either further intervention or the development of risk management strategies. The areas identified under the STABLE‑2007 as potential treatment targets were the lack of positive social influences, capacity for relationship stability, emotional identification with children, general social rejection and loneliness and cooperation with supervision. Dr Poli stated that Mr Atkinson does not have any prosocial supports and that he has longstanding difficulties performing and maintaining intimate relationships due to his lack of self‑confidence, poor self‑esteem and fear of rejection.[65] Mr Atkinson has the risk factor of emotional identification with children. Mr Atkinson described feeling intimidated by adults and identified that he needed to work on his self‑confidence in developing relationships with adults.
2. Dr Poli recommended that Mr Atkinson receives psychological intervention to address the outstanding treatment targets despite his recent treatment gains and that many of these areas have previously been addressed in treatment. Dr Poli recommended that if released on a supervision order, Mr Atkinson should be allocated a psychologist from Forensic Psychological Services. In addition, Dr Poli stated that Mr Atkinson would benefit from assistance with adjusting in the community and to manage the requirements of a supervision order. Further, Mr Atkinson should be provided with assistance to engage in a range of activities in the absence of employment.[66]

The risk that a serious offence will be committed if a continuing detention or supervision order is not made - s 7(3)(h)

1. The psychiatric and psychological evidence supports the finding that Mr Atkinson is at a high risk of committing further serious offences. This assessment of risk takes into account his ongoing treatment needs. Mr Atkinson has undertaken a number of treatment programs. However, it is clear that there is the risk that a serious offence may be committed if a continuing detention or supervision order is not made.

The need to protect members of the community from that risk - s 7(3)(i)

1. There is a need to protect the community from the risk that Mr Atkinson will commit a serious offence.

Any other relevant matter - s 7(3)(j) - Community Supervision Assessment

1. Ms Comery, Senior Community Corrections Officer with the Community Offender Monitoring Unit of the Department of Corrective Services, provided a Community Supervision Assessment Report dated 30 July 2020[67] and gave oral evidence at the hearing.[68] The matters addressed included whether Mr Atkinson has a community support network, accommodation and employment prospects. At the hearing on 12 August 2020, Ms Comery stated that there was no residence available under the DSO Accommodation Program. In the DSO Accommodation Program there are only six residences, two of which have been allocated to persons and the remaining four are being held for persons who are currently subject to proceedings in the Supreme Court. There is an alternative provider, namely Uniting WA. The hearing was adjourned on 12 August 2020 for the reason that Uniting WA was unable at the time to provide accommodation. Mr Atkinson's term of imprisonment expired on 6 September 2020 but he remains in custody awaiting the availability of accommodation. Without being provided with accommodation, Mr Atkinson's release on a supervision order is not possible.
2. On 16 October 2020, Ms Cassam gave evidence confirming that accommodation had been identified.[69] The accommodation provider is Uniting WA. The police conducted a Desktop Spatial Analysis, which confirmed that there were two shopping precincts and schools and childcare facilities within a 2 km radius of the address. There would be very few addresses in any part of Perth or urban area of Western Australia that do not have a school or shopping centre within a 2 ‑ 5 km radius. The accommodation is suitable. I am of the view that any risk with the accommodation may be managed by specific conditions of a supervision order.

1. After considering all of the evidence in respect to the factors in s 7(3) of the HRSO Act, and finding that evidence to be acceptable and cogent, I am satisfied to a high degree of probability that Mr Atkinson currently presents an unacceptable risk to the community that he would commit a serious offence. Therefore, I am satisfied that a restriction order must be made under the HRSO Act to ensure the adequate protection of the community against that risk. Both Dr Wynn Owen and Ms Hasson gave cogent and reliable evidence that supports this finding.

1. I must now decide whether Mr Atkinson should be detained pursuant to a continuing detention order or released into the community under a supervision order.
2. The court must choose the order that is the least invasive to Mr Atkinson's liberty while ensuring an adequate degree of protection of the community.
3. In considering whether a supervision order will adequately protect the community, it is necessary to take into account any conditions which can be placed on a supervision order so as to ensure adequate protection of the community, the rehabilitation of Mr Atkinson and his care and treatment and to ensure adequate protection of victims of offences committed by Mr Atkinson.[70]
4. I must also be satisfied on the balance of probabilities that Mr Atkinson will substantially comply with the standard conditions of the order under s 29 of the HRSO Act. The onus is on Mr Atkinson to satisfy the court that he will so comply.
5. The State submitted that the risk posed by Mr Atkinson could only be managed by continuing detention. The State also submitted that Mr Atkinson has outstanding treatment needs and has a lack of social supports in the community. I agree with that fact. However, the evidence supports a finding that the outstanding treatment needs can be provided in the community and that the authorities are aware of the need to assist Mr Atkinson in developing social supports. The social supports can only be developed in the community of which Mr Atkinson is a part.
6. The State also submitted that given that Mr Atkinson committed an offence concerning the possession of child exploitation material he would be unable to comply with the conditions of a supervision order. The conditions of the proposed supervision order are extensive, including the search of his premises by police and further the following conditions in respect to electronic devices:

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

Not access the internet on any computer, telecommunication or other device capable of internet access, unless such access is approved and supervised at all times by a person approved in advance by a CCO. Such approval may include a requirement for the access to be supervised by a person approved in advance by a CCO.

Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 44, without prior approval of the CCO.

Enable device locking or password access of your computer, telecommunication and/or electronic devices; Not provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device referred to in condition 44 or any online accounts, to any person other than a CCO or Police Officer.

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

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

1. The evidence fully supports a finding that a supervision order will provide adequate protection of the community. In particular, Dr Wynn Owen and Ms Hasson expressed the opinion that the risk may be managed in the community by a supervision order.
2. I consider that this is a case where the protection of the community may be properly and satisfactorily advanced by a supervision order rather than a continuing detention order. Further, I am satisfied on the balance of probabilities that Mr Atkinson will substantially comply with the standard conditions of a supervision order as set out under s 30 of the HRSO Act.
3. In my view, there are conditions that may be imposed under a supervision order that will provide adequate protection of the community. The conditions that are to be imposed are outlined in the Supervision Order, which is attached as Annexure One. The conditions are extensive and serve to manage or reduce the risk in the community.

1. For the above reasons, I have determined that it is necessary to make a restriction order in relation to Mr Atkinson to ensure adequate protection of the community against the unacceptable risk that he will commit a serious offence. Further, I have determined that the risk of reoffending may be adequately managed in the community with the imposition of a supervision order for a period of 5 years. The terms of the supervision order are stated in Annexure One.

SUPERVISION ORDER MADE BY THE HONOURABLE JUSTICE MCGRATH ON 21 OCTOBER 2020

Pursuant to s 48(1)(b) of the High Risk Serious Offenders Act 2020 (WA), the court, having found that the respondent is a high risk serious offender within the meaning of s 7(1) of the High Risk Serious Offenders Act 2020 (WA), makes a supervision order in relation to the respondent, for a period of 5 years from 4 November 2020 on the following conditions:

1. Report to a Community Corrections Officer (CCO) at the place and within the time stated in the order and advise the officer of your current name and address.
2. Report to and receive visits from, a CCO as directed by the court.
3. Notify a CCO of every change of your name, place of residence, or place of employment at least two business days before the change happens.
4. Be under the supervision of a CCO, which includes complying with any reasonable direction of the officer (including a direction for the purposes of s 31 or s 32).
5. Not leave or stay out of the State of Western Australia without the permission of a CCO.
6. Not commit a serious offence during the period of the order.
7. Be subject to electronic monitoring under s 31.

1. Take up residence at (address redacted) and spend each night at that address or at a different address only if such different address is approved in advance by a CCO assigned to you.

1. Report to a CCO at your nominated release address within normal business hours on the day of release from custody under this order.
2. Be under the supervision of a CCO, report to and receive visits from a CCO at times and places as directed by the CCO, and comply with the lawful orders and directions of a CCO.
3. Not commence or change paid or unpaid employment, education, training or volunteer work without the prior approval of the CCO.

1. Consult and engage with any psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO.
2. Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious sexual reoffending, as directed by a CCO.

1. Report to the officer-in-charge of the Sex Offender Management Squad (SOMS) at Hatch Building, 144 Stirling Street, PERTH WA 6000 within 48 hours of your release from custody and thereafter report to and receive visits from WA Police at times and at locations as directed by the officer-in-charge of SOMS or his/her delegate.
2. Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004 (WA).
3. If requested, permit police officers to enter and search your residence and/or vehicle, and/or your person for the purpose of monitoring your compliance with your obligations under this order and allow the seizure of any such items that the police officer believes to contravene the conditions of the order.
4. Remain at your premises and/or vehicle when police officers conduct a search of your residence and/or vehicle under the High Risk Serious Offenders Act 2020 (WA).
5. When requested, advise WA Police of the names of all of your internet service providers, all mobile or landline telephone services used by you and all internet user names or identities used by you.

1. Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information.
2. Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history.

1. Have no contact, directly or indirectly, with the victims of your sexual offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-Offender Mediation Unit of the Department of Justice.
2. Unless contact with victims is permitted pursuant to condition 21, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times.
3. Report to the CCO and WA Police any direct or indirect contact with the victims of your sexual offending within 48 hours of such contact occurring.
4. Not breach any provision or, or commit any offence under, the Restraining Orders Act 1997 (WA).

1. Not commit any criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments.
2. Not commit an offence under s 202, s 203, s 204, s 204A, s 204B, s 217, s 218, s 219, s 220 or s 557K Criminal Code (WA).
3. Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA).
4. Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 (WA) applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014 (WA) and your use is in accordance with the instructions of the provider.

1. Be subject to a curfew, pursuant to s 19B of the High Risk Serious Offenders Act 2020 (WA), such that you are to remain at and not leave your approved address as directed by a CCO from time to time.
2. When subject to a curfew under this order, present yourself for inspection at the front door or curtilage of your approved address, or speak on the telephone, to any CCO or police officer or their agent monitoring your compliance with the curfew.
3. When subject to a curfew under this order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew.

1. Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO.
2. Have no contact with any child under the age of 18 years, whether such contact is in person, in writing, by telephone or by electronic means, unless:

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

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

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

1. Where any unsupervised contact with a child under the age of 18 years is initiated by the child, unless the contact is permitted under condition 33, you must withdraw immediately from the presence of the child.
2. Provide details of any contact with a child under the age of 18 years both to your CCO and to the WA Police on the next occasion you report to that person or agency.
3. Maintain a daily diary of your movements, activities and associations if and as directed by the CCO and present this diary to the CCO and police officer upon request.
4. Report at your next contact with your CCO the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship by you with any person.
5. Report at your next contact with your CCO and WA Police any association or relationship by you with a person who has a child or children under the age of 18 years in their care either full time or part time.
6. Not form any domestic relationship with a person who has a child or children under the age of 18 years in their care either full time or part time, without prior approval of a CCO.
7. Not conduct computer searches for, collect, access, or be in possession of in either electronic or permanent form, images of children including drawings or sketches, whether indecent or not, with the exception of images of your immediate family that are not indecent images if approved in advance by a CCO. Possession of such images depicting a child or children on items such as household items, may be authorised by a CCO.
8. Not be in possession of any children's toy, game or confectionary that could reasonably be perceived to be capable of being an enticement to children, unless such possession is for a legitimate purpose.
9. As directed by a CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence a friendship, domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a police officer.
10. Have no contact with, membership of or affiliation with clubs, associations or groups where membership includes children, unless approved in advance by a CCO; and to cease/cancel such memberships if directed to do so by a CCO or police officer.
11. Advise a CCO of every computer, telecommunication and/or electronic device capable of storing digital data or information possessed or used by you, whether or not it is capable of being connected to the internet, and the location of that device.
12. Not access the internet on any computer, telecommunication or other device capable of internet access, unless such access is approved and supervised at all times by a person approved in advance by a CCO. Such approval may include a requirement for the access to be supervised by a person approved in advance by a CCO.
13. Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 44, without prior approval of the CCO.
14. Enable device locking or password access of your computer, telecommunication and/or electronic devices; not provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device referred to in condition 44 or any online accounts, to any person other than a CCO or police officer.
15. Upon request, permit a CCO or WA Police at any location nominated by them, to access any computer, telecommunication and/or device capable of storing digital data, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device; should any other entity be required to access a device for instances such as technical advice, approval must be sought in advance from a CCO.
16. Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised by another person, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunications and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police.

____________________________________

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

____________________________________

____________________________________

____________________________________

____________________________________

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

[1] Application by the State of Western Australia dated 13 March 2020.

[8] The State of Western Australia v ZSJ [2020] WASC 330.

[9] The State of Western Australia v Narrier [No 6] [2020] WASC 349.

[10] Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246 [10].

[11] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [66], [68] (Wheeler JA); Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [21] (Steytler P & Buss JA).

[12] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [28] (Steytler P & Buss JA).

[13] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [34] (Steytler P & Buss JA).

[14] Italiano v The State of Western Australia [2009] WASCA 116 [46].

[15] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63] (Wheeler JA).

[16] High Risk Serious Offenders Act 2020 (WA) s 48.

[17] Dangerous Sexual Offenders Act 2006 (WA) s 3.

[18] High Risk Serious Offenders Act 2006 (WA) s 48(2).

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

[20] The State of Western Australia v Latimer [2006] WASC 235 [24]; Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [15].

[21] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52].

[22] High Risk Serious Offenders Act 2020 (WA) s 7(3)(c).

[23] High Risk Serious Offenders Act 2020 (WA) s 7(3)(d).

[25] Exhibit 1, Transcript of proceedings in the District Court of Western Australia on 12 May 2000, 535 ‑ 537.

[26] Exhibit 1, District Court Indictment 814 of 2000 dated 12 May 2020, 531 ‑ 533.

[27] Exhibit 1, Transcript of proceedings in the District Court of Western Australia on 12 May 2000, 534 ‑ 537.

[28] Exhibit 1, Transcript of sentencing hearing in the District Court of Western Australia on 20 June 2000, 566.

[29] Exhibit 1, Department of Corrective Services History of Board Secretariat Decision Slips, 12 ‑ 13.

[30] Exhibit 1, District Court Indictment 731 of 2015 dated 18 September 2015, 683 ‑ 685.

[31] Exhibit 1, Transcript of sentencing hearing in the District Court of Western Australia on 10 November 2015, 740 ‑ 741.

[32] Exhibit 1, Amended Statement of Material Facts, 686 - 691; Exhibit 1, Transcript of sentencing hearing in the District Court of Western Australia on 10 November 2015, 708.

[33] Exhibit 1, Transcript of sentencing hearing in the District Court of Western Australia on 10 November 2015, 704 ‑ 705.

[34] Exhibit 1, Transcript of sentencing hearing in the District Court of Western Australia on 10 November 2015, 731.

[35] Exhibit 1, Transcript of sentencing hearing in the District Court of Western Australia on 10 November 2015, 731.

[36] Exhibit 1, Transcript of sentencing hearing in the District Court of Western Australia on 10 November 2015, 739 - 741.

[37] Exhibit 1, Western Australian Criminal Record, 1 ‑ 4.

[38] Exhibit 1, Report of Dr Wynn Owen dated 27 July 2020, 836.

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

[40] Exhibit 1, Report of Dr Wynn Owen dated 27 July 2020, 822.

[41] Exhibit 1, Report of Dr Wynn Owen dated 27 July 2020, 831 ‑ 837.

[42] Exhibit 1, Report of Ms Hasson dated 22 July 2020, 805 ‑ 807.

[43] Exhibit 1, Completion Report for the Intensive Sex Offender Treatment Program dated 4 April 2002, 567 ‑ 572.

[44] Exhibit 1, Completion Report for the Intensive Sex Offender Treatment Program dated 4 April 2002, 571.

[45] Exhibit 1, Program Completion Report for the Sex Offender Maintenance Program dated 20 November 2002, 573 ‑ 574.

[46] Exhibit 1, Non-Completion Report for the Intensive Sex Offender Treatment Program dated 18 July 2017, 750.

[47] Exhibit 1, Non-Completion Report for the Intensive Sex Offender Treatment Program dated 18 July 2017, 751.

[48] Exhibit 1, Psychological Intervention Completion Report dated 5 July 2019 and Psychological Intervention Completion Report - Addendum dated 10 October 2019, 776.

[49] Exhibit 1, Report of Ms Hasson dated 22 July 2020, 807.

[50] Exhibit 1, Report of Dr Wynn Owen dated 27 July 2020, 818 ‑ 851.

[52] Exhibit 1, Report of Dr Wynn Owen dated 27 July 2020, 838.

[53] Exhibit 1, Report of Dr Wynn Owen dated 27 July 2020, 840.

[54] Exhibit 1, Report of Dr Wynn Owen dated 27 July 2020, 849 ‑ 850.

[57] Exhibit 1, Report of Ms Hasson dated 22 July 2020, 794 ‑ 817.

[59] Exhibit 1, Report of Ms Hasson dated 22 July 2020, 809 ‑ 811.

[60] Exhibit 1, Report of Ms Hasson dated 22 July 2020, 815.

[61] Exhibit 1, Report of Ms Hasson dated 22 July 2020, 815.

[62] Exhibit 1, Report of Ms Hasson dated 22 July 2020, 815.

[64] Exhibit 1, Report of Dr Poli dated 17 July 2020, 780 ‑ 793.

[65] Exhibit 1, Report of Dr Poli dated 17 July 2020, 789 ‑ 790.

[66] Exhibit 1, Report of Dr Poli dated 17 July 2020, 792.

[67] Exhibit 1, Community Supervision Assessment Report dated 30 July 2020, 852 ‑ 864.

[70] High Risk Serious Offenders Act 2020 (WA) s 30.