THE STATE OF WESTERN AUSTRALIA -v- CF [No 2] [2022] WASC 424 (19 December 2022)

1. The State helpfully summarised Fiannaca J's findings on the original application (citations omitted):[5]

At the Respondent's detention order hearing, Fiannaca J found that the Respondent presented an unacceptable risk to the community that he would commit a serious offence, being a serious sexual offence against prepubescent and underage adolescent female children, and that it was necessary to make a restriction order to ensure adequate protection of the community against that risk.

Fiannaca J accepted the diagnosis of paedophilia made by Dr Wynn Owen and noted 'That elevates the respondent's risk and supports the conclusion that without a restriction order the community cannot be adequately protected against that risk. Given the level of risk and the potential harm to victims, the risk is unacceptable'.

Fiannaca J found that the Respondent 'has demonstrated a capacity to mislead and fabricate explanations' and 'while the respondent has taken positive steps on therapeutic counselling, his treatment is in early stages and, in my opinion, it is necessary for him to demonstrate consistently for a longer period that he will remain engaged in treatment and continue to make gains'.

Fiannaca J concluded that the Respondent had outstanding treatment needs and, until they are addressed, the conditions of a supervision order would not be sufficient to ensure the adequate protection of the community and noted it was necessary for the Respondent to address, in treatment, the following significant deficits:

(a) The Respondent lacks adequate insight into his risk of reoffending. As at the time of the hearing, he did not accept that he was at risk of committing a further sexual offence.

(b) The Respondent has not engaged in scenario planning.

(c) The Respondent lacks adequate insight into his risk of returning to using alcohol and cannabis, and the impact such use may have on his risk of sexual offending. He needs to demonstrate a commitment to avoiding such use while he is assessed to be at risk of sexual offending, and a capacity to do so if he were in the community.

(d) Impulsivity and difficulties with problem solving have been identified as issues relevant to the respondent's risk of reoffending, but were not addressed specifically in the counselling provided by Ms Ballantyne so far.

(e) The respondent has demonstrated distorted thinking about the impact of sexual acts committed against children. In particular, he has expressed ambivalence about whether it amounts to sexual abuse.

(a) Future treatment should address the issues of inappropriate sexual interests, desires and behaviours.

(b) The respondent should also give consideration to undergoing SSRI treatment, to reduce his preoccupation with sexual activity.

(c) The respondent should also be assessed to determine whether he suffers from PTSD or an anxiety disorder and, if so, a treatment and management plan should be developed and implemented to deal with any such disorder.

In deciding whether a supervision order (SO) was viable, Fiannaca J noted that:

An obvious factor that is relevant to the assessment of whether a respondent will substantially comply is his history of compliance and non-compliance with any previous court order. In this case, that will require consideration of the respondent's breaches of the [conditional suspended imprisonment order (CSIO)] imposed on 30 August 2012. Although that order was not the same as a supervision order under the HRSO Act, the respondent's failure to comply with the CSIO by failing to attend counselling sessions, failing to comply with his reporting conditions under the [Community Protection (Offender Reporting) Act 2004 (WA)] and returning positive urinalysis tests, may inform the question whether he has the capacity or willingness to comply with the conditions of a supervision order.

1. The State tendered, by consent, two volumes of material,[6] and other reports,[7] that contained historical material relating to the respondent's prior offending, his conduct and treatment in prison, and reports prepared for the purposes of this hearing. The reports included:
   1. a psychiatric report by a psychiatrist, Dr Wynn Owen;
   2. a treatment progress report by a senior counselling psychologist, Ms Collyer;
   3. two reports from a forensic psychologist, Ms Raggett;
   4. community supervision assessment reports from senior community corrections officers (CCOs) (Ms Hill and Ms Nichols) and from a team leader of the Community Offender Monitoring Unit (COMU), Ms Goode.
2. Dr Wynn Owen, Ms Collyer, and Ms Goode gave oral evidence in the hearing. The respondent did not give evidence.
3. The respondent did not challenge the credibility or reliability of any of the witnesses. Each of the witnesses gave their evidence in a measured and frank manner, giving reasons where appropriate.
4. The respondent did not challenge the expertise of the experts. Both Dr Wynn Owen and Ms Collyer are appropriately qualified.
5. I accept the witnesses' evidence.

Legal principles[8] Statutory framework

1. 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.[9]
2. Under s 64 of the HRSO Act, the State may seek a review of an offender's detention under a continuing detention order.

1. In The State of Western Australia v Corbett [No 5], Hall J, as his Honour then was, said (citations omitted):[10]

The clear intention of the review process is to allow for the possibility of a change of circumstances. Detention under the DSO Act is not a punishment for a past offending: it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised. If circumstances change such that the risk of reoffending reduces or can be adequately managed in the community, then the continuing need for detention must be considered ... It does not follow from this that a court conducting an annual review is bound by the factual findings made at previous hearings. In practice, however, there is usually little prospect that expert evidence on a review will call into question the previous finding that the respondent was a serious danger to the community ...

...

The risk of reoffending may change over time. It may be affected by age, health, or the successful completion of treatment. The availability of new technology or resources in the community may also affect whether the risk of reoffending can be managed by a supervision order. There is also the possibility that the risk may increase because of a failure of treatment or a relapse into deviant thinking.

The justification for making a continuing detention order is the existence of an unacceptable risk of serious sexual offending that cannot be adequately controlled by conditional release. However, detention also serves the purpose of allowing treatment and care in a secure environment: s 17 DSO Act. This confirms an obligation on the part of prison authorities to facilitate change by offering programmes and access to counselling.

If the risk changes or resources improve to enable more efficacious conditions then the need for detention may dissipate. In these circumstances, continuing detention may be unjust.

The review process is intended to ensure that detention only continues where necessary. It mitigates the otherwise draconian effect of imprisoning people for crimes that they have not committed. Reviews are not, therefore, a mere welfare check: they are an exercise of judicial power to affirm, vary or rescind a detention order. Continuing detention should not be ordered unless that course is justified by the circumstances existing at the time of the review. The court should choose the order that is least invasive of the person's right to be at liberty, whilst ensuring an adequate degree of protection of the community ...

1. With respect, I agree. However, I do not consider that the fact that the review process is intended to allow for the possibility of a change of circumstances means that the respondent must demonstrate a change of circumstances. Nor do I consider this was what Hall J intended to convey.
2. In my view, the question as to whether the respondent is a high risk serious offender, and whether the continuing detention order should be affirmed, is entirely a matter for the judge hearing the review application to determine. While the judge will no doubt give weight to the views expressed by other judges in any previous reviews and on the original application, the judge himself or herself must decide whether the respondent is a high risk serious offender, and whether the continuing detention order should be affirmed.

1. Section 68 of the HRSO Act provides:
   1. Review of detention under continuing detention order

(1) On a review under section 66 of an offender's detention -

(a) if the court does not find that the offender remains a high risk serious offender it must rescind the continuing detention order; or

(b) if the court finds that the offender remains a high risk serious offender it must -

(i) affirm the continuing detention order; or

(ii) subject to section 29, rescind the continuing detention order and make a supervision order.

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

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

High risk serious offender - necessary to make restriction order

1. Section 7(1) of the HRSO Act provides:
   1. 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.

1. With one qualification, this raises materially the same considerations as applied under the DSO Act in determining whether a person was a 'serious danger to the community'.[11]
2. The qualification is that s 7(1) of the HRSO Act expressly requires that the Court be satisfied that 'it is necessary to make a restriction order' before an offender can be found to be a 'high risk serious offender', whereas s 7 of the DSO Act did not.[12] By expressly requiring this, s 7(1) of the HRSO Act makes it clear that an offender who presents an unacceptable risk will not be a 'high risk serious offender' unless it is necessary to make a restriction order to adequately protect the community. In The State of Western Australia v D'Rozario [No 3],[13] Quinlan CJ gave the following example of when it might not be necessary:

... it may be that, in the circumstances of a particular case, other external restraints on an offender (such as a post‑sentence supervision order under the Sentence Administration Act 2003 (WA)) may provide adequate protection of the community against the unacceptable risk that the offender will commit a serious offence (such that a restriction order is not 'necessary').

1. Determining whether a restriction order is necessary requires a balancing exercise.
2. 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]
3. 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]
4. 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]
5. 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]
6. A 'serious offence' is defined in s 5 of the HRSO Act.
7. 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.

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

Precondition to a supervision order - compliance with standard conditions

1. If I find that the respondent is a high risk serious offender, I must make a continuing detention order or a supervision order.
2. Due to s 29 of the HRSO Act, 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.
3. Section 29 of the HRSO Act states:
   1. 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.

1. Section 23(1B) and (1C) of the DSO Act were in similar terms to s 29(1) and (2) of the HRSO Act.
2. There are seven standard conditions for a supervision order. They are set out in s 30(2) of the HRSO Act:[20]
   1. Conditions of supervision order

(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.

1. 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

1. The meaning of the phrase 'substantially comply' was considered by Fiannaca J in Director of Public Prosecutions for Western Australia v Hart[21] 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.

1. 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;[22]

(2) given the onerous nature of supervision orders, missteps are to be expected;[23] and

(3) the frequency or regularity of contraventions might inform the question of whether the person will substantially comply.[24]

1. 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.

1. 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 nine factors he had set out in his judgment in paragraph 50.[25]
2. Putting those factors in list form, they are as follows:

(1) the offender's history of non-compliance;

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

(3) his capacity to comply with the conditions;

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

(5) 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;

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

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

(8) abstinence from drugs;

(9) conduct while in prison; and

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

1. 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.
2. In deciding between these options, the paramount consideration is the need to ensure adequate protection of the community.[26] 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'.[27] Nor does it mean that other considerations are excluded.[28]
3. 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.[29] 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'.[30]
4. In Director of Public Prosecutions (WA) v DAL [No 2],[31] Beech J[32] 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?

1. The respondent conceded through his counsel that he was a high risk serious offender.[33] 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.

1. In his decision on the original application, Fiannaca J detailed the respondent's antecedents at length.[34] It is sufficient to note the following.
2. The respondent's social history was set out by Fiannaca J as follows (citations omitted):[35]

In summary, despite the absence of his natural father, the respondent's early years were happy. However, from about the age of 5, he endured neglect, trauma and dysfunctional living environments for significant parts of his life until his late teens. His middle teens were characterised by instability. He lacked a good male role model, but he generally maintained a good relationship with his mother. The respondent has continued to describe his mother in positive terms and he has maintained that she has always been supportive of him. However, his account to Ms Hasson suggests that his mother's affair with a man when the respondent was still of a tender age exposed him to sexual behaviour that led him to 'acting out' sexually with another child. I deal in more detail below with the evidence concerning the respondent's sexual development. The respondent has also been clear in his perception that his mother made poor choices in her relationships and that even since separating from Mr E, she has been in a 'series of bad relationships'.

1. The respondent had a disrupted education and has had little paid employment.[36] The respondent has a history of alcohol and substance abuse beginning in childhood.[37]
2. Fiannaca J summarised the respondent's criminal history as follows (citations omitted):[38]

The respondent has a history of sexual offending against female children under the age of 13 years. At various times from age 11 to age 22, in Western Australia, he committed a large number of sexual offences against mainly prepubescent girls who were known to him.

The first sexual offence occurred sometime between December 2005 and 2007, when the respondent was between 11 and 13 years of age. He allegedly indecently dealt with his half-sister, BP, who was between 6 and 8 years of age at the time. The respondent was given a caution in respect of that incident, in 2007, so no conviction was recorded in respect of the offending. However, the respondent has admitted sexually interfering with BP in a number of ways, which I will discuss later.

The respondent next committed sexual offences between July 2009 and February 2010, when he was 15 years old. He committed the offences against the younger sisters of one of his friends: ARF, who was 7 or 8 years old, and ZF, who was 6 years old. The respondent was dealt with for those offences in 2012.

In the meantime, the respondent committed his next sexual offence in October 2010, when he was in foster care. He was 16 years old. He indecently dealt with CS, a 5-year-old girl who was living in the same foster care home as him. The respondent was charged with one count of indecently dealing with a child under 13, arising from that incident. He pleaded guilty to that charge and was sentenced in the Children's Court on 7 December 2010. He was released on a 3 month youth conditional release order (YCRO).

In 2011, the respondent, aged 17, committed a sexual offence against a 4-year-old child, MM, while at his neighbour's house.

On 27 July 2012, the respondent was convicted in the Children's Court, after trial, of two offences arising from his sexual abuse of ARF and ZF between July 2009 and February 2010 and one offence arising from his sexual abuse of MM in 2011. He was convicted of sexual penetration of a child under the age of 13 years in relation to ARF and indecently dealing with a child under the age of 13 years in relation to ZF. He was also convicted of indecently dealing with a child under 13 years in relation to MM. On 30 August 2012, the respondent was sentenced to 18 months' imprisonment conditionally suspended for 24 months for the offence against ARF, 9 months' imprisonment conditionally suspended for 24 months for the offence against ZF, and 6 months' imprisonment conditionally suspended for 24 months for the offence against MM, all orders to run concurrently.

One of the conditions of the conditional suspended imprisonment order (CSIO) in each case required the respondent to attend counselling. In March 2013, the respondent failed to attend a scheduled psychological counselling session and consequently was charged with three counts of breaching a CSIO. He was convicted of those offences on 28 June 2013 and fined $50 for each offence. The court substituted a period of suspension of 18 months commencing 28 June 2013 in respect of each CSIO.

As a convicted sex offender, the respondent had reporting obligations under the Community Protection (Offender Reporting) Act 2004 (WA) (CPOR Act). On 27 September 2013, he was convicted of two counts of failing to comply with his reporting obligations under the CPOR Act as a result of his failure to notify the relevant persons of his new address and new mobile phone number. He was fined $1,500 on each count.

On 2 December 2013, the respondent was convicted of a further three counts of breaching a CSIO after he again failed to attend a scheduled psychological counselling session and returned two positive tests for illicit substances in August 2013. He was fined $200 on each count. The court substituted a period of suspension of 16 months commencing 2 December 2013 in respect of each CSIO.

In March 2014, the respondent was charged again with one count of failing to comply with reporting obligations under the CPOR Act due to a failure to notify the relevant persons of his new mobile phone number. He was fined $500 in the Children's Court on 20 June 2014.

On 25 August 2014, the respondent was convicted of a further three counts of breaching a CSIO. The respondent had breached the CSIOs by re-offending (the March 2014 offence of failing to report as required by the CPOR Act), further positive tests for illicit substances and failing to attend a telecommunications course. On this occasion, because of the respondent's continued non-compliance, the President of the Children's Court cancelled the CSIOs which had been imposed (by way of substitution of the suspension period) on 2 December 2013, and ordered that the respondent serve 12 months' imprisonment for the offence against ARF, 6 months' imprisonment for the offence against ZF and 4 months' imprisonment for the offence against MM, to commence on 25 August 2014 and to be served concurrently. No further orders were made in relation to the breaches.

Although it was not known at the time the respondent was dealt with in the Children's Court on 25 August 2014, he had committed a sexual offence between 3 August 2013 and 5 August 2014 while he was subject to the CSIOs. The respondent was 19 or 20 years of age and in an intimate relationship at the time. The offence was committed against his partner's sister, who was aged 4 or 5 years. The respondent asked the girl to touch his penis, but she refused. They were interrupted by the girl's mother coming into the room. The respondent was subsequently charged and convicted of that offence in December 2017.

Although the respondent was eligible for release on parole for the sentence of 12 months' imprisonment imposed on 25 August 2014, he was denied parole because of his poor response to prior supervision and the fact that he had unmet treatment needs.

After he was released from prison, the respondent committed a further sexual offence, this time against his partner's 13-year-old sister. That offence occurred between 5 August 2016 and 1 November 2016, when he was 22 years old.

The respondent was subsequently charged with one count of encouraging a child under the age of 13 years to engage in sexual behaviour in respect of the offending against the younger child and one count of sexually penetrating a child of or over the age of 13 years but under the age of 16 years in respect of the offence against the older child. He pleaded guilty and was sentenced for those offences in the District Court on 15 December 2017.

The respondent was sentenced to 12 months' imprisonment for the offence against the younger child and 3 years' imprisonment for the offence against the 13-year-old, to be served concurrently, resulting in a total effective sentence of 3 years' imprisonment. The sentence was backdated to commence on 29 December 2016, to reflect the time the respondent had spent in custody on remand for the offences.

Again, the respondent was made eligible for parole, but on 16 May 2018, parole was denied at the respondent's request.

1. After his sentence ended on 28 December 2019, the respondent remained in custody on the interim detention order imposed by Jenkins J on 17 September 2019 and then on the continuing detention order imposed by Fiannaca J on 15 January 2021.
2. Fiannaca J summarised the respondent's conduct in prison prior to the hearing of the original application.[39] In particular, his Honour noted (citations omitted):

The respondent has not incurred any prison charges or been the subject of adverse incidents since his incarceration on 29 December 2016.

According to the Department of Justice Individual Management Plan created in respect of the respondent on 23 May 2019, the respondent was polite towards staff in his block, responded well to authority and instruction, and generally was not known to be a management issue.

The respondent was employed in the Prisoner Clothing Store and was reported to be 'a reliable worker who always attends his rostered shifts and displays an appropriate attitude towards supervisor instructions'.

When the respondent was previously imprisoned, in 2015, there had been three noteworthy incidents recorded in respect of his behaviour. It is appropriate to mention them as they shed light on his attitudes and level of maturity at that time, which are relevant when considering whether there has been any development in those areas, particularly given the absence of adverse incidents during his most recent prison term.

1. Since that time, there have been two incidents recorded, both on 2 June 2020. On that day, the respondent disobeyed the lawful order of a prison officer. He was also found to be in possession of a drug (Panadol) which had not been lawfully issued to him.[40]
2. It appears there have been no further incidents since then.[41]

1. Dr Wynn Owen is a consultant forensic psychiatrist with considerable experience in this area. He interviewed the respondent twice and prepared a report. He also gave oral evidence.
2. Dr Wynn Owen said the respondent's psychiatric diagnoses are:[42]

Paedophilia, Non-exclusive type, attracted to females

Antisocial Personality Disorder

Possible anxiety disorder

1. In his report, Dr Wynn Owen referred to statements made by the respondent that he was 'depressed', had had suicidal thoughts and had persistent periods of anger. In relation to these statements, Dr Wynn Owen said:[43]

My clinical assessment of the above statements was that there was no emotional depth to the content and no apparent emotional connection with what was being reported. [The respondent] definitely did not appear to have a depressive disorder or come across as depressed at interview but was rather expressing a dysphoric perspective using generalisation and extremes without a connection to emotional perspective, possibly the exaggeration was unconscious and a part of [a] fixed pattern of impression management.

I note that [the respondent] does not appear to have the insight or vocabulary to articulate his emotional state and this alexithymia continues to present a restriction to his successful interaction with criminogenic and or psychotherapeutic intervention, this may in part explain his apparent use of exaggeration and extremes to describe emotions and emotion laden situations.

1. Dr Wynn Owen used two actuarial tools to assess the respondent's risk of future sexual offending, the Static-99R and the PCL-R. He said:[44]

STATIC-99R (2016 revision)

[The respondent's] Static-99R score is in the Level IVb or 'Well Above Average Risk' range.

...

Psychopathy Checklist, revised (PCL-R, Hare)

As has been previously noted [the respondent's] score on the PCL-R is in the moderate range indicating he has many of the features of psychopathy but he does not match the profile of prototypical psychopathy. [His] scores indicate that his interactions with others tend to be relatively superficial, manipulative or exploitative and his emotional/social connections with others somewhat shallow and self-serving, the score also [indicates] the presence of antisocial behaviours and lifestyle.

1. Dr Wynn Owen also assessed the respondent's risk for sexual violence using the 'Risk for Sexual Violence Protocol'. He found that the historical risk factors present for the respondent are 'chronicity of sexual violence, diversity of sexual violence, escalation of sexual violence, physical coercion in sexual violence, and psychological coercion in sexual violence'.[45]
2. As for the risk factors relating to psychological adjustment, Dr Wynn Owen said:[46]

Psychological adjustment

The risk factor extreme minimisation or denial of sexual violence is present.

...

Denial of sexual offending when assessed as an independent risk factor for future offending, has not been found to have a direct relationship with elevated risk except in the presence of psychopathy. It does, however, affect an individual's understanding of the requirement for risk management strategies and their attitude toward and compliance with supervision and monitoring.

The risk factor problems with self-awareness is still present. ... The failure to recognize one's own risk is regarded as an important dynamic factor for sexual recidivism which increases risk of future offending. Problems with self-awareness is regarded as a significant risk factor for future sexual offending.

The risk factor problems with stress or coping is definitely present. ... Problems with stress and coping are associated with an increased risk of future violent behaviours and, in the presence of sexual deviance, deviant sexual thinking can be prompted and or exacerbated by stress and poor coping. Problems with stress and coping are also associated with utilisation of established pathological coping such as self-harm behaviours, sex as coping and alcohol and substance use.

The risk factor problems resulting from child abuse is definitely present. ... It is associated with an increased risk of future sexual offending.

1. In his oral evidence, Dr Wynn Owen expanded upon the relevance of an offender denying his offending. He said that[47]

denial, per se, is not necessarily a risk factor if the person is demonstrating a willingness to engage, not just in therapy, though, but to engage in the overarching risk management strategy and supervision. One of the issues with denial is that a number of people - their denial is so deep that they really don't believe that they need any of that, so they have - have complacency. I didn't get that impression from CF this time around.

1. Dr Wynn Owen said that the respondent had previously been complacent, but that there had been a definite shift in the respondent's thinking.[48]
2. As for other risk factors, Dr Wynn Owen said:[49]

Mental disorder

...

The risk factor sexual deviance is definitely present. ... Individuals who are sexually deviant and have previously committed sexual offences are at increased risk of offending in future. ... Sexual deviance does not, however, mean an individual will definitely reoffend as deviant thinking and arousal tend to fluctuate over time in intensity and primacy and [the respondent] does not have an exclusive sexual interest in children.

The risk factor problems with substance abuse is present, [the respondent] has a history of alcohol and substance abuse from a young age. .... [I]t does not appear that intoxication is a prerequisite to sexual offending, rather a marker of poor coping...

The risk factors suicidal ideation and violent ideation are present. ... Violent and suicidal ideation are associated with an increased risk of future violence.

Social Adjustment

The risk factors problems with intimate relationships and problems with non- intimate relationships are present. ...

The risk factor problems with employment is present. ...

The risk factor non-sexual criminality is present. ...

4. Manageability

The risk factor problems with planning is definitely present...

The risk factor problems with treatment is definitely present. ...

Treatment has been shown to reduce the risk of future offending, sex offenders who have not responded to treatment or who are untreated have an elevated risk of future offending.

The risk factor problems with supervision is definitely present as evidenced by his history of offending and breaches while conditionally in the community as an adolescent and as an adult.

1. Dr Wynn Owen identified the most likely risk scenarios. I will discuss these later.[50]
2. Dr Wynn Owen noted that the respondent had said he would not consider taking any form of anti-libidinal medication to potentially reduce sexual libido and sexual preoccupation.[51]
3. Dr Wynn Owen summarised his findings as follows:[52]

FORMULATION AND OPINION

...Early onset offenders who are sexually deviant have a relatively high likelihood of future sexual offending.

[The respondent] currently presents as an individual with a superficial affect, a tendency to extreme exaggeration, who impression manages unless challenged, probably mainly unconsciously ...

On the basis of a structured professional judgement approach to reoffending risk assessment I am of the opinion that [the respondent] presents a high risk of future serious sexual offending if not subject to a Restriction Order.

[The respondent] has a 'Well above Average' score on Static-99R [and] a range of dynamic risk factors with no obvious balancing protective factors.

[The respondent] has not completed a Sex Offender Treatment Program and his individual psychological intervention to date has been fragmented.

[The respondent]'s risk is associated particularly with the presence of sexual deviance, sexual preoccupation and lack of self-awareness. Antisocial personality, limited coping strategies, deficits in emotional regulation, impulsivity, attachment issues and lack of empathy are also relevant factors. Substance use will be an indicator of poor coping and intoxication will potentially contribute to impulsivity and poor judgement.

The dynamic factors linked to risk are potentially amenable to psychological intervention.

1. In his oral evidence, Dr Wynn Owen said that, in his view, the risk factors identified for CF could be managed in the community with appropriate supports.[53]
2. Dr Wynn Owen also said that the respondent had made some significant gains. I will discuss these later.[54]
3. Dr Wynn Owen said that various gains the respondent had made, and the respondent's compliance with the variety of regimes and requirements of a prison, suggest that he is more likely than previously to comply with the conditions of a supervision order.[55] He also said that he believed that the respondent was maturing. Dr Wynn Owen further said that the respondent now demonstrated a better understanding of the seriousness of his situation and the consequences of issues should he breach in future.[56]
4. Dr Wynn Owen said there was a likelihood that further imprisonment would not reduce his overall risk, and indeed may well increase it.[57]

1. Ms Collyer is a Senior Counselling Psychologist employed by the Department of Justice.
2. Ms Collyer summarised the respondent's treatment history and progress since the original application. In relation to the respondent's treatment progress, she said:[58]

It is evident that [the respondent] has ongoing challenges regarding impression management, clarity of narrative, focusing on his own victimisation (potentially distracting from considering his own potential for risk) and antisocial cognitions. This appeared interspersed with some understanding that he needs to make changes and take responsibility for being the agency for change for himself. In essence, [the respondent] appeared reflective of an individual in the early phases of treatment, whereby, he has recognised some of his difficulties and began to make some changes with some regression to antisocial cognitions and unhelpful thinking evident. With time, and new situations to trial learned skills, ongoing engagement in treatment would likely assist him to consolidate and build on these gains and apply them more regularly and consistently.

1. Ms Raggett is a Forensic Psychologist employed by the Department of Justice. She had 14 individual psychological intervention sessions with the respondent between 26 May 2021 and 10 November 2021. These sessions were conducted via telephone with the respondent located at a metropolitan prison.
2. Ms Raggett said:[59]

Overall, [the respondent] has presented as motivated to engage in treatment and has consistently attended the telephone sessions. He has expressed ongoing concerns regarding a lack of privacy in the visits area in which he has been situated for telephone sessions, which has hindered the exploration of treatment relevant topics. He has maintained his motivation to pursue a transfer to [a particular regional prison] to engage in face-to-face treatment ... To date, the constraints of conducting counselling sessions via telephone (and the privacy concerns) have meant treatment has primarily focused on the establishment of rapport; supporting his preparation for transfer to [a particular regional prison]; development and management of emotional and self­regulation skills - particularly in response to emerging issues; and some discussion on future planning. There are further treatment needs which have previously been identified and which [the respondent] would benefit from exploring in future treatment. Accordingly, treatment goals should be reviewed and agreed upon once [the respondent] is able to engage in face-to-face treatment and/or his privacy concerns have been addressed.

1. Ms Raggett provided an updated report dated 16 August 2022. It stated:[60]

To date, [the respondent] has attended 24 individual psychological intervention sessions between 26/05/2021 and 04/08/2021 inclusive. This included an initial 14 sessions which were conducted via telehealth up to 10/11/2021 while [the respondent] was based at [a metropolitan prison]. ... Following his transfer to [a particular regional prison] on 25/01/22, [the respondent] engaged in a further 10 sessions between 15/02/2022 and 04/08/2022 inclusive.

...

[R]estrictions related to the management of COVID within [a particular regional prison] have had a significant impact on the course of treatment.

...

[The respondent] presented as motivated to engage in treatment throughout... However, as COVID restrictions began to impact the course and mode of treatment, [the respondent] expressed his concern about his capacity to make sufficient progress in advance of his review hearing. ... Notwithstanding these concerns, [the respondent] maintained his motivation to engage and attended session consistently where operational requirements allowed.

...

Overall, [the respondent] presented as able to adapt to the new environment at [a particular regional prison]. ... Latterly he was dismissed from his role as Unit shower cleaner due to inconsistent attendance, however, TOMS records that he is still a Unit 2 Worker. [The respondent] did not volunteer this change in employment status during sessions... Since transferring to [a particular regional prison], [the respondent] has developed his ability to utilise help-seeking skills to seek support from professionals when struggling with stressors.

...

It is likely that [the respondent] would benefit from further developing his emotional and self-regulation skills to assist with his capacity to tolerate frustrations with others, and to develop/apply skills to establish and maintain healthy interpersonal relationships.

... [The respondent] would benefit from continued support in developing skills for establishing and maintaining emotionally intimate and healthy relationships with those in his support network and any future partner.

...

[The respondent] reported an intention to comply with conditions imposed and to access professional support to assist with managing emerging issues. At times, [the respondent] presented as rigid when exploring possible conditions maintaining a focus on his interpretation of whether they were relevant to his convicted offending or could be unduly burdensome for him. ...

An area of treatment need that has been highlighted is the requirement for [the respondent] to identify risk scenarios and develop plans for managing risk in the community. Consistent with his offence stance regarding denial of all but one convicted offence, he identified that he wanted to develop his understanding of risky situations which could make him vulnerable to future allegations of sexual offending and to strengthen his skills/plans for protecting himself from such circumstances. There has been limited progress in this area to date due to the disruptions to the course of treatment and privacy concerns in e-visit sessions. He has recognised the need to maintain stringent personal boundaries within relationships and to comply with any supervision conditions regarding no unsupervised contact with children. He has expressed some concern about how this may impact his future long-term goals of marriage and fatherhood, and he would benefit from professional support in exploring management of these issues.

... He would also benefit from exploring options for developing social supports and building skills for assisting with establishing new friendships/relationships.

He ... would benefit from further work to identify and plan for management of risky or challenging situations.

It is recommended that [the respondent] continue to engage in individual intervention with [the Forensic Psychological Intervention Team] to further explore and address outstanding treatment needs.

1. Ms Hill is the respondent's CCO. She provided a community supervision assessment report dated 10 January 2022.
2. Ms Hill dealt with the respondent's progress since the last hearing. In relation to programmatic intervention, she said:[61]

[The respondent] has indicated that he would be willing to engage in group based intervention more specifically the Intensive Sex Offender Treatment Program (ISOTP), however he has not been afforded this opportunity due to his ongoing denial of the current offences. Liaison occurred with [a particular regional prison] regarding the Sex Offender Deniers Program ... there are vacancies in Quarter 4.

1. Ms Hill noted the respondent continued to be reluctant to take anti-libidinal treatment. She said:[62]

[The respondent] maintains his reluctance to participate in voluntary anti-libidinal treatment, identifying his age and negative side effects as factors preventing him from consenting to such treatment.

1. Ms Hill discussed the respondent's accommodation options. She said:[63]

[The respondent] is waitlisted for accommodation via the HRSO Supported Accommodation Program. ... [The respondent] is currently fifth on the waitlist, however this is a fluid list and a verbal update can be provided at his hearing regarding his status.

1. An updated report dated 28 July 2022 was provided by Ms Nichols of the COMU. It stated:[64]

[The respondent] has not incurred any adverse behaviour reports or prison charges in the last six months. ... Since arriving at [a particular regional prison] he has had one full urinalysis screening for all illicit substances on 26 January 2022 and returned negative results. He has also had 46 screenings for alcohol only and all have returned negative results.

1. A further updated report dated 17 November 2022 was provided by Ms Goode of the COMU. It stated:[65]

[The respondent] has not incurred any further adverse behaviour reports or prison charges since the earlier [Community Supervision Assessments]. He is currently employed in Part Time Education and remains at [a particular regional prison]. This is at level 3 gratuities. Positive comments are noted within the Individual Management Plan dated 8 September 2022. Since 5 July 2022 he has had only alcohol screenings, there have been nine and they have all returned negative results.

1. In CF, Fiannaca J said (citations omitted):[66]

... the respondent's criminal history and the circumstances of his offences demonstrate that, irrespective of whether he satisfies the diagnosis of paedophilia, the respondent has an inclination or tendency to commit serious sexual offences against young girls, predominantly against prepubescent girls. ... The inclination or tendency I have identified is an identifiable characteristic in the respondent's offending. As Murray AJA said in GTR, it matters not whether that characteristic has the quality of a diagnosable mental illness or personality disorder.

I am satisfied, therefore, that the respondent has a propensity to commit serious sexual offences against prepubescent and underage adolescent girls. The extent of the risk that he will act on that propensity at this point in time and in the future is informed by the assessments that have been made by Dr Wynn Owen and Ms Hasson, considered with the information from Ms Ballantyne and Dr Galloghly concerning the respondent's progress in treatment, other evidence of the attitudes evinced by the respondent since his incarceration in December 2016 and my assessment of the respondent's evidence in the hearing.

The most obvious pattern to the respondent's sexual offending has been that his victims have been children who are known to him and to whom he has had access through family, friends or cohabitation. The offending has tended to be impulsive or opportunistic, rather than planned. While there is no evidence of a pattern of grooming, there was an element of trust in his relationship with the victims or the circumstances in which he had access to the children. On some occasions the respondent would have had reason to think he was unlikely to be caught, but on other occasions his offending was brazen, with the real risk of discovery by someone walking in or observing his conduct in the open. On the other hand, as Ms Hasson pointed out, on most occasions his offending has stopped because he has been interrupted, in the absence of which it would appear he would have persisted. The respondent has not offended against strangers, or in public places. As Ms Hasson noted, there has been no indication of random offending against randomly selected children.

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

1. The respondent has previously been involved in numerous rehabilitation programmes both in the community and in prison.[68]
2. In CF, Fiannaca J noted that the respondent had a number of unmet treatment needs.[69] Since the original hearing, much has changed.
3. Dr Wynn Owen said that, since the original hearing, and for the first time, the respondent has demonstrated an ability to engage with therapy. Dr Wynn Owen said the respondent has shown he is motivated and engaged, and that this was a significant change.[70]
4. Dr Wynn Owen also said that the respondent definitely appears to be developing an ability to understand when he is stressed, to recognise his emotions, and to seek help. He said that the respondent had demonstrated good help-seeking behaviour and self-awareness.[71]
5. Dr Wynn Owen further said that the respondent had made progress in four of the five treatment goals to address outstanding treatment needs. Due to circumstances beyond his control, it was not possible to begin to address the fifth.[72]
6. In addition, Dr Wynn Owen said that there had been a positive shift in the respondent's tendency to be dishonest (sometime subconsciously).[73]

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

1. Dr Wynn Owen is 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.[74]
2. Dr Wynn Owen described the most likely risk scenario as follows:[75]

Having established a position of trust and friendship through a sibling or parent/guardian [the respondent] attempts sexual contact with a female child aged 4-13 years, eg exposing [his] penis, encouraging the child to touch him sexually, digital vaginal penetration may also form part of an offence. Some physical coercion may also be associated. This is likely to occur opportunistically further to grooming/establishment of a trusting relationship in the context of lack of self-awareness and poor management of sexually deviant urges.

...

Imminence of reoffending will relate to access to victims and, noting that an opportunistic offence against a stranger victim is not the most likely offence, will relate to the time it takes to establish a relationship of trust with a child and/or their family or guardian/carer.

1. Dr Wynn Owen said that this scenario is 'likely to result in significant psychological harm to the victim'.[76]
2. I accept the opinions of Dr Wynn Owen. There is an obvious need to protect the community from this risk.

1. A factor that could have been significant was the respondent's refusal to consider taking any form of anti-libidinal medication to potentially reduce sexual libido and sexual preoccupation. However, the respondent has now stated that he is willing to undergo anti-libidinal treatment.[77]

1. 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.
2. Therefore, I must affirm the continuing detention order or make a supervision order. Due to s 29 of the HRSO Act, 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?

1. 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.[78]
2. In this context, the most relevant of the standard conditions is the condition set out in s 30(2)(f) of the HRSO Act. It imposes a condition that the offender not commit a serious offence during the period of the order.
3. I have had regard to the factors identified by Fiannaca J, outlined earlier.[79]
4. Although the respondent had a history of non-compliance at the time of the original application, I am satisfied that the respondent is unlikely to deliberately flout the conditions in the future.
5. I am satisfied that the respondent has the capacity to comply with the conditions.
6. The proposed conditions are extensive, onerous, and protective.
7. 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 would be high. I am concerned as to whether the respondent might commit a serious offence. This would be contrary to the objects of the HRSO Act.
8. I am satisfied that the respondent is motivated to remain offence free and in the community.
9. A sex offender treatment program is not available to a denier. However, the respondent has engaged well with counselling to address his outstanding treatment needs.
10. The respondent has not failed a drug test since 2014.
11. The respondent has not engaged in concerning conduct in prison since 2020.
12. The respondent has made significant gains in self‑management and life skills. Due to circumstances beyond his control, there has not been an opportunity to address issues to do with his sexual thinking and his sexual offending, and that remains an outstanding treatment need.
13. Having regard to all of the evidence, I am satisfied on the balance of probabilities that the respondent would substantially comply with the standard condition not to commit a serious offence.

1. Given that finding, I must now decide whether to make a supervision order or affirm the continuing detention order. I must affirm the continuing detention order unless I am satisfied that the conditions of a supervision order would adequately protect the community.

1. Dr Wynn Owen recommended that any Supervision Order should be for a period of five years. Neither party said otherwise.[80]
2. The respondent suggested that the conditions proposed by the State should be amended in some minor respects and clarified in a number of other respects. After some discussion in relation to this during the hearing, I directed the parties to confer about the conditions. Following that conferral, the parties provided an amended proposed supervision order, setting out the changes they jointly proposed. None of the proposed changes had any bearing on the risk presented by the respondent. Rather, they ensured that the changes reflected what the State was actually seeking to achieve. The proposed amended conditions (with some typographical corrections) are set out in Annexure A to these reasons.

1. Having regard to all of the evidence (and the proper role of the State), the State submits that the conditions of a supervision order would adequately protect the community.

1. The paramount consideration is the need to ensure adequate protection of the community. However, the HRSO 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 HRSO Act applies would ever be released. The question is whether, having regard to the proposed conditions, a supervision order would adequately protect the community.
2. I have set out the relevant evidence above. The following evidence is of particular importance.
3. First, the respondent is now willing to take anti-libidinal medication.
4. Second, the respondent has engaged well with psychological counselling, demonstrating his capacity to do so and his motivation to address the concerns as to his risk of further offending.
5. Third, there have been significant changes in the respondent's capacities and thinking.
6. Fourth, the most likely risk scenario is that he would offend against a child after establishing a position of trust and friendship through a sibling or parent/guardian. That is, if he were to reoffend, it is unlikely be a spontaneous attack on a stranger. The fact that it is more likely to be only after establishing a position of trust and friendship through a sibling or parent/guardian gives the authorities much more opportunity to detect any increase in his risk before an offence actually occurs.[81]
7. Fifth, Dr Wynn Owen's expert opinion is that the respondent can be managed in the community.
8. Having regard to all of the evidence, I am satisfied that the conditions of a supervision order would adequately protect the community.

1. For these reasons, I would impose a supervision order on the respondent. I will order that he not be released before 9 January 2023, to allow the authorities the time required to make the necessary arrangements.
2. I will also order that he not be released until a new psychologist has been assigned to him and has conducted at least an introductory session and one further session with him (which may be done remotely). If the authorities are unable to arrange this promptly, it may be necessary to revisit this condition. To that end, I will give the respondent leave to apply on 24 hours' notice to seek a variation of this condition. I will also list the matter for hearing in the week commencing 16 January 2023, so that the State can advise me of the position in this regard.
3. Finally, I note that the respondent appears to have a positive relationship with his sister, one of his victims. Condition 24 prevents the respondent from having contact with a victim unless it is in accordance with an agreement made through, or approved by, the Victim-Offender Mediation Unit of the Department of Justice. I encourage the authorities to undertake the necessary steps to ensure that, if his sister wishes to continue contact with him, that is able to occur without any interruption. Provided his sister is willing, and it is not harmful to her, facilitating the maintenance of their relationship is likely to assist the respondent to manage the stressors of living in the community.[82] This in turn will reduce the risk of further offending. It is therefore in the interests of the community that this relationship be facilitated so far as possible.

1. The State seeks an order that, in addition to anonymising the name of the respondent and the victims of the respondent's offending (to protect the privacy of the victims), the address, including the suburb, of the respondent specified in condition 8 and any future address approved under this condition, be suppressed from publication.
2. The State seeks this order on the basis of the information provided by Ms Goode of COMU. Ms Goode advises:[83]

[T]he number name and suburb of the address suppression from social and mainstream media is to enable the address to be protected from possible security and safety management issues. If released publicly it may be compromised and lost from the scarce resources available to HRSOs. [CF's] safety and any staff may be rendered unsafe and he may need to be extracted if it's revealed publicly.

This has occurred before ....

1. The principles of open justice are well settled. A suppression order should only be made 'if it is really necessary to secure the proper administration of justice in proceedings before it'.[84] Further, 'there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient'.[85]
2. I am satisfied that it is necessary to make a suppression order to secure the proper administration of justice in these proceedings. The HRSO regime is not aimed at further punishment. It is aimed at the protection of the community. If someone can be acceptably managed in the community, it is not in the interests of justice that they be kept in custody simply because accommodation cannot be found. The suppression order is not made to save the respondent embarrassment. It is to ensure that accommodation that is currently available to the respondent remains available to him. It is necessary to make a suppression order to protect the viability of the supervision order that I will make.
3. I accept that members of the community have a legitimate interest in being aware of the identity and presence of offenders in their community. However, the protection of the community is achieved by the conditions of the supervision order, which involve extensive monitoring and supervision of the respondent.
4. For these reasons, I am satisfied that it is necessary to make an order prohibiting publication of the respondent's address, being the house number, street name and suburb and any future address approved under condition 8.
5. Further, to protect the privacy of the victims of the respondent's offending, in particular his half-sister, the name of the respondent and the victims have been anonymised in these reasons.

ANNEXURE - CONDITIONS STANDARD CONDITIONS REQUIRED BY THE HRSO ACT

1. Report to a Community Corrections Officer (CCO) at the East Perth Adult Community Corrections Centre, 30 Moore Street East Perth, within 48 hours of the order being issued and advise the officer of the person's 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 the person's name, place of residence, or place of employment at least 2 business days before the change happens.
4. Be under the supervision of a CCO, which includes, comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 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 section 31.

1. Take up residence at [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 approved address within normal business hours on the day of release from custody under this order.
2. Be under the supervision of a CCO, and comply with the lawful orders and directions of a CCO and report to, and receive visits from, a CCO at times and at places as directed by the CCO, such arrangements having regard to any employment commitments of you.
3. Not commence or change paid or unpaid employment, volunteer work, education or training without the prior approval of a CCO.

1. Consult, engage and attend all appointments with any medical practitioner, psychiatrist, psychologist, counsellor, 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 re-offending, as directed by a CCO.

1. Report to the Officer-in-Charge of the Serious Offender Management Squad (SOMS) at the Hatch Building, 144 Stirling Street, Perth WA 6000 within 48 hours of your release from custody, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the SOMS or his/her delegate.
2. If requested, permit Police Officers to enter and search your residence, and/or vehicle and/or 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.
3. Remain at your premises or vehicle when Police Officers conduct a search of your residence under the High Risk Serious Offenders Act 2020.
4. To advise a CCO or WA Police of every electronic device capable of being connected to the internet to navigate/browse the internet for the purpose of downloading any content, or used by you to access the internet for this purpose, and the location of that device.
5. Not allow any person other than a CCO or WA Police access to any device (in your possession) referred to in condition 17 and therefore not provide passwords used to access such devices or online accounts to any person other than a CCO or Police Officer, except with the permission of a CCO.
6. When requested, advise 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.
7. Permit a CCO or WA Police at any location as nominated by them, to access any computer or device capable of storing digital data or information (including your mobile telephone) used by you, for the purpose of ascertaining your activities, and provide to the CCO or WA Police upon request any passwords or any other device locking means required for such access.
8. Not delete or otherwise remove and/or disguise any data or information from any computer or electronic storage device (including your mobile telephone) in your possession without prior permission from the CCO or WA Police.

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 the previous condition, 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.

1. Not commit any other 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 557K Criminal Code 1913 (WA), s 17(1) Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021.
3. Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996.
4. Not possess, or consume, or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014, and your use is in accordance with the instructions of the prescriber.

1. Be subject to a curfew, pursuant to section 32 of the High Risk Serious Offenders Act 2020, 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 kerbside 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. Undertake medical treatment and any medication regime, including with Selective Serotonin Re-uptake Inhibitor (SSRI), as directed by the CCO in consultation with a medical practitioner or medical practitioners and/or in accordance with a medical practitioner's direction and comply with all testing to monitor your compliance with any such medical treatment or regime, including anti-libidinal treatment as directed by a CCO, except that you are not required to take any anti-libidinal medication or SSRI unless you consent to do so.
2. Comply fully with any treatment prescribed pursuant to condition 33.
3. Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of re­offending and compliance with treatment to the Department of Justice.
4. Permit any medical practitioner, psychologist, psychiatrist or counsellor to advise the CCO immediately if they become aware, or suspect, that you have, or intended to, cease undergoing pharmaceutical medication contrary to the advice of a medical practitioner, or if you appear to have ceased to consult with that medical practitioner on such treatment.

1. Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by a CCO.
2. Not possess, or consume, or purchase, or use alcohol unless approved in advance by a CCO.
3. Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place.
4. To provide a valid sample for testing pursuant to condition 39.
5. Not go or remain at any licensed premises unless permitted or required to do so for the following reasons:

(a) For the purpose of averting or minimising a serious risk of death or injury to yourself or another person.
>
> (b) For a purpose, and for a duration, approved in advance by a CCO.
>
> (c) On the order of a CCO or Police Officer.

6. Not remain in the presence of any person who you know, or ought to know, to be affected by a prohibited drug.
7. Not remain in any place where prohibited drugs, or substances that you believe to be prohibited drugs, are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place or exit the persons consuming the drugs or substances believed to be prohibited drugs from your address.
8. 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.
9. Provide a verbal or written account of your projected daily movements to your CCO and obtain prior approval of your projected movements, as and when directed by your CCO; with the exception of the following circumstances:

(a) to obtain urgent medical or dental treatment for yourself;
>
> (b) for the purpose of averting or minimising a serious risk of death or injury to yourself or another person;
>
> (c) to obey an order issued under a written law (such as a summons) requiring your presence elsewhere; or
>
> (d) at the direction of a CCO or Police Officer.

10. Not enter the premises of, or access the services of, escort agencies or sex workers unless approved in advance by a CCO.
11. 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; or
>
> (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 the condition immediately above, 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 to your CCO on the next occasion you report to that person and, if you report to the WA Police before reporting to your CCO, provide those details to the police on that occasion.
3. Not form any domestic relationship with a person who has children under the age of 18 years in their care either full time or part time without prior approval of a CCO.
4. On the next occasion you report to your CCO, report the formation of any social association (contact by any means on more than one occasion), domestic, romantic, sexual or otherwise intimate relationship.
5. As directed by a CCO, make full or partial disclosure regarding your past offending and the current order to anyone with whom you commence a domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.
6. Where membership thereof is primarily for children, have no contact with, membership of or affiliation with clubs, associations, or groups; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer.

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.

[3] The State of Western Australia v CF [2021] WASC 20.

[5] Applicant's Written Submissions filed 9 February 2022 (Applicant's Submissions) [28] - [33], which the respondent does not dispute - see the Submissions on Behalf of the Respondent filed 11 February 2022 (Respondent's Submissions) [15].

[8] This section reproduces, or draws from, what I have written in earlier decisions.

[9] 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].

[10] The State of Western Australia v Corbett [No 5] [2017] WASC 115 [8], [10] ‑ [13].

[12] See the discussion in The State of Western Australia v Garlett [2021] WASC 387.

[13] The State of Western Australia v D'Rozario [No 3] [2021] WASC 412 [21].

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

[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] (Wheeler JA), and expressly approved by Steytler P and Buss JA, as his Honour then was, in Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [26].

[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] and [43].

[18] In relation to the equivalent provision in the DSO Act, see GTR [28] (Steytler P and Buss JA, as his Honour then was).

[19] In relation to the equivalent provision in the DSO Act, see GTR [34] (Steytler P and Buss JA, as his Honour then was).

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

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

[25] The first four of the nine factors (numbers 2-5 on the list) his Honour drew from Kim v Witton [1995] FCA 1508; (1995) 59 FCR 258. The next four of the nine factors (numbers 6-9) were from The State of Western Australia v A [2018] WASC 250 [123]. The last of the nine factors (number 10) was from The State of Western Australia v Misko [No 6] [2018] WASC 389 [196].

[27] 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].

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

[29] See, in relation to the DSO Act, GTR [97] (Murray AJA).

[30] 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].

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

[35] CF [92]. The detail is set out in CF [73] - [91].

[41] See exhibit B.1 page 2 and exhibit B.2 page 3.

[50] See under the heading 'Risk and need to protect - s 7(3)(h) and (i) factors'

[54] See under the heading 'Addressing causes and rehabilitation (historical) - s 7(3)(e) and (f) factors'.

[71] ts 428. And see also ts 442 - 443.

[77] ts 437. See also the Supplementary Submission on Behalf of the Respondent dated 22 November 2022 [13]. And see ts 437 - 438 for the benefits of such treatment.

[79] The factors were set out under the heading 'Precondition to a supervision order - compliance with standard conditions'.

[83] See email from the State on 15 December 2022.

[84] Prisoners Review Board v Freeman [No 2] [2010] WASCA 167 [8].