THE STATE OF WESTERN AUSTRALIA -v- D'ROZARIO [No 3] [2021] WASC 412 (24 November 2021)

2 I advised the parties that I would published my reasons later. These are my reasons.

3 The State initially applied for orders under s 14 and s 17(1) of the Dangerous Sexual Offenders Act 2006 (WA) (the DSO Act) in relation to the respondent. The application was made on 10 January 2020, when Mr D'Rozario was serving a sentence of 5 years imprisonment that had commenced 6 March 2015.

4 Following the commencement of the proceedings, the DSO Act was repealed and replaced by the HRSO Act. Pursuant to s 125 of the HRSO Act, the present application is taken to have been made under s 35, s 46 and s 48 of the HRSO Act.

5 On 24 January 2020, following a preliminary hearing, Fiannaca J ordered that the restriction order hearing be listed on 4 and 5 June 2020 and that Mr D'Rozario undergo examinations by two qualified experts, Dr Peter Wynn Owen and Dr Mark Hall, for the purposes of preparing reports for the restriction order hearing.

6 On 28 February 2020, Fiannaca J ordered that, upon completion of his custodial sentence, Mr D'Rozario be released into the community subject to the conditions of an undertaking, which were set out in the order.[1]

7 The respondent completed his sentence and was released on 5 March 2020. He has thereafter resided with his partner, Ms B.

8 On 20 May 2020, Dr Wynn Owen advised the State that, after speaking with a senior community corrections officer from the Community Offender Monitoring Unit, he had become aware of some telephone calls between Mr D'Rozario and Ms B that may be relevant to their relationship and which differed from the way in which Mr D'Rozario had portrayed their relationship in interview. Dr Wynn Owen considered that he needed to listen to the calls because they potentially contained information that may impact his overall assessment of risk of reoffending.

9 As a consequence, the State issued a summons for the calls and the restriction order hearing was vacated.

10 On 27 May 2020, the State filed an application for an interim supervision order or, in the alternative, an interim detention order. This application arose from alleged breaches of the undertaking by Mr D'Rozario. The application was heard by Fiannaca J on 3 June 2020. His Honour ordered that Mr D'Rozario be subject to an interim supervision order.

11 The matter was not listed before the Court again until a directions hearing on 4 August 2021. On that day, Fiannaca J ordered that the restriction order hearing be listed on 22 November 2021.

12 The Court must make a restriction order if it 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 respondent to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence.[2]

13 A restriction order may be either a continuing detention order or supervision order. In deciding whether to make a detention order or a supervision order, the paramount consideration is the need to ensure adequate protection of the community.[3]

14 The Court cannot make a supervision order, and therefore must make a detention order, unless it is satisfied, on the balance of probabilities, that a respondent will substantially comply with the standard conditions of a supervision order. The respondent has the onus of proving that he will substantially comply.[4]

15 The State does not seek an order that Mr D'Rozario be made subject to a continuing detention order. The State only seeks that I make a supervision order. Mr D'Rozario did not contest the making of a supervision order.

16 Notwithstanding the parties' agreed position, it remains for me to be satisfied that it is necessary to make a restriction order in relation to Mr D'Rozario and that a supervision order is the appropriate restriction order. In determining whether I am satisfied as required by s 7(1) of the HRSO Act, I must have regard to the following matters referred to in s 7(3):

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

(b) any other medical, psychiatric, psychological, or other assessment relating to Mr D'Rozario;

(c) information indicating whether or not Mr D'Rozario has a propensity to commit serious offences in the future;

(d) whether or not there is any pattern of offending behaviour by Mr D'Rozario;

(e) any efforts by Mr D'Rozario to address the cause or causes of his offending behaviour, including whether he has participated in any rehabilitation program;

(f) whether or not Mr D'Rozario's participation in any rehabilitation program has had a positive effect on him;

(g) Mr D'Rozario's antecedents and criminal record;

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

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

17 The term 'serious offence' is defined in s 5 of the HRSO Act. Relevantly to this application, it includes an offence specified in sch 1. The offences in sch 1 include, but are not limited to, sexual offences. Mr D'Rozario has been convicted of, inter alia, sexually penetrating a child over 13 years and under 16 years and possession of child exploitation material. Both offences are specified in sch 1.

18 Section 7(1) of the HRSO Act was recently considered by Corboy J in The State of Western Australia v Garlett.[5] In that case, his Honour identified an arguably material difference between s 7(1) of the DSO Act (read with s 17(1)) and s 7(1) of the HRSO Act (read with s 48). The difference arises from the inclusion in s 7(1) of the HRSO Act of the requirement that the Court be satisfied that 'it is necessary to make a restriction order'. In that regard, Corboy J said:[6]

It is arguable that the words 'necessary to make a restriction order in relation to the offender to ensure adequate protection of the community' introduce a further evaluative element over and above an evaluation of whether the risk of an offender committing a serious offence is unacceptable.

19 To some extent the additional evaluative element referred to by his Honour might be thought to have been inherent in s 7(1) of the DSO Act in the phrase 'if the person were not subject to a continuing detention order or a supervision order'. That is, the evaluative element under the DSO Act of an 'unacceptable risk' had embedded within it consideration of the effect that a restriction order would have on the risk posed by the offender. As I said in The State of Western Australia v Rao:[7]

It is important to recognise that the finding that a person is a 'serious danger to the community' is an assessment made as to the person's risk of committing a serious sexual offence if they are not subject to a continuing detention order or a supervision order. That is, a finding that a person is a serious danger to the community is to be made upon the assumption that the person is not subject to a continuing detention order or supervision order.

There is therefore an essential interrelationship between s 7 and s 17 of the Act. As the assessment of whether a person is a 'serious danger to the community' is made upon the assumption that there is no detention or supervision of the offender, it follows, as a matter of the purpose of the Act as a whole, that an order made under s 17 (either detention or supervision) is intended to remove or ameliorate the risk that the person will commit a serious sexual offence, so that there is no longer an 'unacceptable risk' of that occurring. In other words, the purpose of the Act as a whole is that, as a consequence of the detention or supervision order, the person will no longer be 'a serious danger to the community'.

20 Under the HRSO Act, rather than embed the ameliorating effect of a potential restriction order within the evaluation of the 'unacceptable risk' (as was the case in the DSO Act), the 'unacceptable risk' and the effect of a putative restriction order are kept conceptually distinct.

21 The effect of this distinction, as Corboy J observed in Garlett, is to make clear the possibility that the Court might find that it was not necessary to make a restriction order to adequately protect the community notwithstanding that it has found that the risk of future offending was unacceptable.[8] While no doubt such a situation would be rare, it is possible to envisage circumstances in which that might be the case. For example, 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').

22 As Corboy J recognised in Garlett, the current form of s 7(1) recognises that the need to ensure adequate protection for the community should form part of the Court's determination of whether the offender is a high risk serious offender (the first step in making a restriction order) and not merely the paramount consideration in deciding what form of order should be made in respect of an offender who has been found to be a high risk serious offender (the second step).[9]

23 I agree with Corboy J's conclusions in that regard and have applied his Honour's construction of s 7(1) in the current application.

(c) Dr Benjamin Bannister, forensic psychologist; and

(d) Ms Alexandra Maynard, Senior Community Corrections Officer.

25 The State tendered a three-volume Book of Materials (Exhibit 1), which included:

(b) a chronology of offending prepared by the Office of the Director of Public Prosecutions;

(c) various records of the Department of Justice in relation to Mr D'Rozario's time in prison (including charge and incident reports, individual management plans, substance use test reports, treatment assessment and treatment completion reports and medical records);

(d) transcripts and other material relating to Mr D'Rozario's prior convictions (including convictions for serious offences);

(e) presentence reports prepared on the occasion of Mr D'Rozario's prior convictions (including reports of Mandy Corrigan dated 2 February 2007, Emma Cashmore dated 1 November 2013 and Lisa Rathmann dated 1 December 2014);

(f) previous psychological reports in relation to Mr D'Rozario (including reports of David Summerton dated 5 May 2007, Helen Fowler dated 1 November 2013 and 25 February 2015, Wendy Wager dated 23 July 2018 and Dr Sarah George dated 22 January 2019 and 2 May 2019);

(g) statements from officers of the Department's Community Offender Monitoring Unit (COMU) and the Police Sex Offender Management Squad (SOMS) in relation to Mr D'Rozario's compliance with supervision;

(h) a proposed DSO management plan prepared by Dr Bannister dated 11 May 2020 and an addendum plan dated 26 October 2021;

(i) psychiatric reports required by s 46(2)(a) and s 74 prepared by Dr Hall and Dr Wynn Owen;

(j) community supervision assessment from COMU prepared by Ms Maynard dated 1 November 2021; and

(k) transcripts of prison telephone calls (PTS calls).

26 The State also played, and tendered, a series of extracts of recordings of PTS calls between Mr D'Rozario and Ms B from 2017 to 2020 during Mr D'Rozario's most recent term of imprisonment (Exhibit 2).

Antecedents and criminal record - s 7(3)(g)

27 It is convenient that I begin with Mr D'Rozario's antecedents and criminal record (s 7(3)(g) of the HRSO Act), given that they inform the consideration of other relevant factors.

28 Mr D'Rozario was born in 1984 and is now 37 years old. He is the eldest of three children born in Western Australia to Burmese parents.

29 Mr D'Rozario described, to Dr Wynn Owen and Dr Hall, a largely unremarkable upbringing, although he noted that his parents were very strict and 'overprotective'.

Mr D'Rozario gave overall a rather confused, vague and sanitised account of his sexual history. He said that his first sexual contact of any kind occurred around the age of 12 when he said he was allegedly sexually abused by a male cousin 2 years his senior. He said that they would play in his or his cousin's room a couple of times per week and that the play became sexualised ... He said that the behaviour continued for about a year ... Mr D'Rozario said that he had not paid the behaviour any attention at the time that it was happening or afterward, only disclosing it when he was being assessed for a presentence report in 2014.

31 Mr D'Rozario told the psychiatrists that he did well in, and enjoyed, school. He obtained a Certificate IV in business and a Bachelor of Commerce upon completing high school.

32 Mr D'Rozario began working part‑time at 14 years of age and worked part‑time during his studies. His employment history includes ground transportation officer at the domestic airport, car sales, delivery driver, store manager of a jewellery store and customer service officer of a hardware distributor. Mr D'Rozario is not currently working but is searching for work with an employment agency.[11]

33 Mr D'Rozario reported that his first serious relationship began when he was around 16 or 17 years old. His girlfriend was two years younger than him and the relationship lasted around three years. After this relationship, Mr D'Rozario was single until around the age of 20 or 21 when he commenced another relationship with a woman. Mr D'Rozario reported that 'there was a void' after breaking up with her, and that he had offended within weeks of the relationship ending (as discussed below).

34 Mr D'Rozario met his current partner, Ms B, in 2013. Mr D'Rozario was 28 years old at the time and she was 19. Ms B confirmed in a telephone interview in May 2020 that Mr D'Rozario did not disclose his offending history to her until they had been in a relationship for quite some time. When he was arrested in 2013, Ms B supported Mr D'Rozario. As a result, her relationship with her parents broke down and she eventually moved in with Mr D'Rozario's parents and lived with them for three years.

35 Mr D'Rozario denies any history of illicit substance use and reported to Dr Hall only light social consumption of alcohol. All of the substance use test reports were negative.

36 Mr D'Rozario has no history of mental health or psychiatric issues. His medical history includes asthma and high blood pressure, which is managed by medication.

37 On 29 May 2007, Mr D'Rozario was sentenced to 27 months imprisonment following convictions on six counts of intent to procure a person believed to be under 13 years for sexual activity, and one count of intent to expose a person believed to be under 16 years to indecent matter. The offending occurred between May 2006 and August 2006 and involved Mr D'Rozario communicating online over a chat forum to a person who he believed to be a 12-year-old girl ('Chloe', who was in fact a police officer posing as a 12-year-old girl). The conversations between Mr D'Rozario and 'Chloe' included him asking 'Chloe' to perform sexual acts, telling 'Chloe' that he wanted to perform sexual acts on her and asking to speak with her directly on the telephone. In the course of the exchanges Mr D'Rozario sent a photograph of his penis to 'Chloe'. Ultimately, Mr D'Rozario arranged to meet with 'Chloe' in person with the intention of engaging in sexual activity. When he attended the meeting location Mr D'Rozario was arrested.

38 Also on 29 May 2007, Mr D'Rozario was sentenced to 4 months and 2 weeks imprisonment following conviction of one count of possession of child pornography. This offence involved the police finding a copy of a movie on Mr D'Rozario's computer which depicted a 12-year-old girl performing fellatio on an adult male.

39 Mr D'Rozario was released from prison on parole on 22 June 2008. His parole order expired 8 August 2009.

40 On 19 November 2013, Mr D'Rozario was sentenced to a 12‑month intensive supervision order following a conviction on one count of failure to comply with reporting obligations. This offending involved Mr D'Rozario speaking to a 12-year-old girl over Facebook. After sending her a friend request, Mr D'Rozario had eight conversations with the girl before she blocked him. The conversation involved Mr D'Rozario offering her money in return for a massage and requesting that they meet in person.

41 On 6 March 2015, Mr D'Rozario was sentenced to 5 years imprisonment following convictions for 11 counts of failure to comply with reporting obligations, one count of intent to procure a person under 16 years for sexual activity, one count of possessing child exploitation material and four counts of sexually penetrating a child over 13 and under 16 years.

42 These offences occurred between May 2009 and November 2013 and involved Mr D'Rozario engaging in online contact with a number of teenage girls, which included sexual conversations and the exchange of sexually explicit images. One of the girls, who was 15 years old at the time, met with Mr D'Rozario in person on a number of occasions, where he engaged in sexual activity (including digital penetration and cunnilingus).

43 Also on 6 May 2015, Mr D'Rozario was sentenced to 6 months imprisonment following conviction for failure to comply with reporting obligations. That offence involved Mr D'Rozario reactivating a Facebook account on 1 December 2013 without informing SOMS. This offending occurred after Mr D'Rozario was charged with the offences referred to in the previous paragraph and after he had already had untaken five sessions with a psychologist in relation to the charges he was facing.

Section 74 reports and extent of cooperation - s 7(3)(a)

44 I am required by s 7(3)(a) of the HRSO Act to consider any reports prepared pursuant to s 74 and the extent to which Mr D'Rozario cooperated in the examination required by that section. As noted above, psychiatric reports were obtained from Dr Hall and Dr Wynn Owen and they both gave oral evidence at the hearing before me.

45 Dr Hall produced a psychiatric report dated 20 May 2020 and an addendum psychiatric report dated 1 November 2021.

46 In relation to the offending for which Mr D'Rozario was sentenced on 29 May 2007, Dr Hall observed that 'the themes evident in Mr D'Rozario's communication with the child were his interest in the child's inexperience and his desire to teach her, using language of a type that would be typically used by a child naïve to sex'.[12] Dr Hall also reported that Mr D'Rozario denied that the purpose of meeting the child was to engage her in activity of the kind discussed in the messages. On specific enquiry as to why then he would have met with her at all, he said 'that's a good question ... I felt a connection and thought it would be great to meet'.[13]

47 In relation to Mr D'Rozario's offence of possession of child pornography, Dr Hall reported that Mr D'Rozario was unable to explain why he had downloaded the movie. He said that although Mr D'Rozario reluctantly conceded that it pointed to a sexual interest in children, he qualified that any such interest must have only been present at that time and not subsequently.[14]

48 In relation to the offences for which Mr D'Rozario was sentenced on 6 March 2015, Dr Hall stated:[15]

Mr D'Rozario's pattern of offending [between May 2009 and November 2013] was to select victims who were known to or friends of his younger sister, and then send them a friend request on Facebook before commencing a process of grooming for the ultimate purpose of contact offending. Several of the offences, against a number of the victims, involved Mr D'Rozario engaging the victim in conversations via text, messaging platforms or the telephone that were sexual in nature and in particular contained descriptive content about masturbation and vaginal/penile sexual intercourse.

...

Despite facts to the contrary, Mr D'Rozario initially claimed both that he had been the one to accept friend requests from the victims rather than having sent them a friend request, and that his contact with them had been a way of 'reconnecting'. However, Mr D'Rozario was challenged regarding the above in that he had had no prior connection with the victims in the first place and therefore had no basis for 'reconnecting'. Mr D'Rozario then went on to say that when he did send a friend request it was because Facebook had suggested the person as a 'friend suggestion', thereby implying that Facebook bore some responsibility for his decision to initiate contact with the victims. ... Although unable to explain why his contact with the females, which he claimed had been to 'reconnect', had become sexualised, he stated that his sex drive at that time was 'probably' elevated as he did not have a sexual outlet whilst in prison.

49 Dr Hall's primary diagnosis of Mr D'Rozario is paedophilia with a secondary diagnosis of narcissistic and obsessive compulsive personality traits.[16]

50 Dr Hall provided the following reasons for his diagnosis:[17]

[Mr D'Rozario has] a history spanning several years of recurrent, intense sexually arousing fantasies and urges involving sexual activity with children upon which he has acted. The above is consistent with the presence of paedophilia. Further evidence for paedophilia in Mr D'Rozario's case, despite his denial of any deviant sexual interest in children, includes the persistence of his offending against children over many years, and the overriding of common sense in someone with a conformist personality by what is clearly a strong, uncontrollable and specific sexual urge. The above is typical of the paraphilic disorders. Furthermore, aspects of his offending clearly point to sexual arousal being specifically linked to the young age of the victims, including his interest in their sexual naivety and a desire to teach them, his possession of child exploitation material, and the content of videos he made of himself masturbating.

51 For the purpose of risk assessment, Dr Hall used the Static‑99R, PCL‑R and RSVP risk assessment tools. The Static‑99R is designed to assess the long‑term potential for sexual recidivism among adult male sex offenders. The PCL‑R assesses the extent to which an individual's personality structure conforms to the clinical construct of psychopathy. The RSVP assesses risk of sexual violence by considering a range of risk factors for sexual offending with emphasis given to manageability of the risk of future sexual violence.

52 Both Dr Hall assessed Mr D'Rozario as being in the 'well above average risk' category on the Static‑99R.[18]

53 Dr Hall assessed Mr D'Rozario as being in the low to moderate range of the PCL‑R, indicating that he has a few of the features of psychopathy.[19] Dr Hall noted that this is well below the threshold for a diagnosis, but stated that individuals with this score 'have interactions with others that are relatively superficial, manipulative or exploitative, and have emotions and social and emotional connections with others that are shallow, self‑serving and impaired'.[20]

54 On the RSVP, Dr Hall stated that the following risk factors are present:

(a) chronicity of sexual violence.[21] Dr Hall noted that Mr D'Rozario's offending spanned from 2006 to 2013. He observed that Mr D'Rozario's offending persisted despite having reporting obligations, and that his offending was frequent in that he offended against multiple victims in a short period of time, including multiple victims at the same time;[22]

(b) psychological coercion in sexual violence.[23] Dr Hall stated that Mr D'Rozario has established relationships for the sole purpose of furthering sexual offending and he had acquired some level of trusted status with the victims, and he used language which implied that the victims would gain some favour and attention through their compliance. Dr Hall also noted that Mr D'Rozario is reported to have threatened to post naked photos of one victim on the internet if she disengaged from him;[24]

(c) attitudes that support or condone sexual violence.[25] Dr Hall noted that Mr D'Rozario exhibits psychological and emotional congruence with an adolescent peer group, lacks empathy for those against whom he offends and seeks to exert power and authority in relationships;

(d) problems with self-awareness.[26] Dr Hall stated that Mr D'Rozario lacks a true appreciation of the factors that placing him at risk, notably his sexual deviance;

(e) sexual deviance.[27] Dr Hall pointed to a 'stable pattern of deviant sexual arousal, specifically paedophilia'. In his addendum report, Dr Hall stated that Mr D'Rozario remains in denial with regard to his sexual interest in children;[28]

(f) problems with intimate relationships.[29] Dr Hall stated that Mr D'Rozario's current intimate relationship is 'not wholly protective'. He noted that Mr D'Rozario's offending desisted after being detected by authorities which occurred in the same month as having commenced his relationship with Ms B, but stated that the relationship may not have been a factor contributing to the desistence and that some of his offending relationships (with underage girls) persisted after having commenced his current intimate relationship. In his addendum report, Dr Hall stated that:[30]

The PTS calls point to a dysfunctional relationship in which Mr D'Rozario's behaviour could be characterised by controlling, denigrating, self‑serving and manipulative. It is unrealistic to accept that there has been a dramatic shift in this pattern in the time since his release from prison. The relationship is likely to encounter severe difficulties in due course and to be a source of significant negative affect for both parties.

(g) problems with non‑intimate relationships.[31] Dr Hall pointed to the fact that Mr D'Rozario had exploited his relationship with his sister to gain access to victims while working in a job that his sister had gotten for him upon his release from prison;

(h) problems with treatment.[32] Dr Hall stated that, in his opinion, Mr D'Rozario has 'essentially failed to benefit from treatment thus far other than to learn how to impress as having gained from treatment'. He pointed to his lack of insight and lack of genuine desire to address his deviant sexual interest; and

(i) problems with supervision.[33] Dr Hall stated that Mr D'Rozario has a track record of concealment and an unreliable self‑report. Notably, Dr Hall stated:

Third party validation of any claims made by Mr D'Rozario will be a large part of the work of those supervising him going forward. He possesses the verbal skills to explain away contraventions and extend his opportunity to offend by avoiding the consequences of said contraventions and remaining in the community. His ability to gain the collusion of others in attesting to his claim of being at low risk is of concern with regard to the reliability of family members in maintaining protective behaviours for children within Mr D'Rozario's family. Furthermore, it is possible that Mr D'Rozario's partner could facilitate his access to the internet due to her supporting his belief that he has no outstanding treatment needs and poses no risk.

55 In terms of possible reoffending scenarios, Dr Hall also stated that the most likely scenario of reoffending would be for Mr D'Rozario to repeat past offences, where he would engage in a sexualised conversation with a girl aged between 12 to 15 with the intention of contact offending.[34] Dr Hall stated that Mr D'Rozario would be seeking to gratify his deviant sexual interest in addition to exercising power and control needs due to issues with self‑esteem and feelings of inadequacy.

56 Dr Hall's report concluded (recalling that it was written when the DSO Act was in operation):[35]

It is my opinion that Mr D'Rozario is at high risk of committing a serious sexual offence as defined in the Dangerous Sexual Offenders Act 2006 if not subject to a continuing detention or community supervision order.

57 Dr Hall stated that Mr D'Rozario's risk should be reassessed if his relationship status changes or if he engages in any 'limit‑testing'.[36] In his addendum report, Dr Hall stated that there was a minimal shift in the dynamic risk factors since he assessed Mr D'Rozario in April 2020, and that his assessment of risk was unchanged.[37]

58 In relation to recommendations for future management, Dr Hall stated that monitoring of Mr D'Rozario would require third‑party cross validation of any self‑report and the ability to monitor his internet access through genuinely random inspection of devices in his possession.[38]

59 Dr Hall stated that Mr D'Rozario required ongoing individual psychological counselling, and such counselling would need to be long‑term, intensive and on a frequent (fortnightly) basis. He noted that any counselling should be provided by a departmental forensic psychologist.[39] This view was maintained in his addendum report.[40]

60 Dr Hall also stated that Mr D'Rozario needs to be strictly limited in his opportunity for grooming. Dr Hall recommended that Mr D'Rozario be prohibited from using social media platforms unless authorised by a community corrections officer (CCO), that there be genuinely random inspections of his devices, that exclusion zones be implemented in relation to past victims and areas where children may congregate, that there be a prohibition on unsupervised access to children, that there be a requirement that he make full and frank disclosure to family members who have children or have the potential to facilitate his access to children, and that prior approval by a CCO is required of any supervision arrangements.

61 Dr Hall also stated that, in his opinion, any testing of limits around conditions of a supervision order should be treated as Mr D'Rozario seeking to create an opportunity to offend.[41]

62 Dr Hall stated that if the Court was to make a supervision order, it should be in place for approximately 10 years.[42] In reaching this conclusion, Dr Hall stated:

[T]he time for which he is compelled to undertake treatment and supervision cannot be so short as to encourage him to hold out. His own faith in his interpersonal skills is such that the prospect of a review of a supervision order that is not too far into the future may be taken by Mr D'Rozario as a further opportunity to present his case of being at low risk provided he maintains the position that he does not have a deviant sexual interest in children. He lacks awareness of his own transparency in that regard and so would fail to appreciate it as counterproductive let alone contrary to the goal of self management of risk factors into the longer term. Taking into account the above, as well as his young age, his resistance to intervention, and anticipated slower pace of progress due to the need for third party verification of self‑report, I am of the opinion that any supervision order imposed should be in the order of 10 years.

63 In his addendum report, Dr Hall maintained his previous recommendations and added the following recommendations:[43]

(a) that Mr D'Rozario be permitted to possess a smartphone;

(b) that Mr D'Rozario should be permitted to access the internet only through the smartphone;

(c) that Mr D'Rozario must surrender the smartphone for random inspection and a requirement that he must not delete data;

(d) that Mr D'Rozario must not be in possession of any other device that is capable of accessing the internet or has a messaging function; and

(e) that Mr D'Rozario must be prohibited from accessing all social networking platforms with the exception of Linkedin.

64 The main purpose for these additional recommendations is so that Mr D'Rozario can find employment. Dr Hall also stated that it is in the interest of Mr D'Rozario's relationship with Ms B that she be relieved of the burden of facilitating his access to the internet, and that Mr D'Rozario be solely accountable for his internet use. He also noted that Mr D'Rozario owning a smartphone would facilitate inspection of the device.[44]

65 In his evidence at the hearing, Dr Hall stated, in relation to this last recommendation, that there was no urgency with Mr D'Rozario accessing the internet, and so it would be sensible for there to be possibly a provision whereby, at the CCO's discretion, that it could be introduced when the risk management team feel that he's ready for that.[45]

66 Dr Hall also expressed some caution at the prospect of relaxing the restrictions on Mr D'Rozario's contact with children: including his nephew of approximately 2 years of age. While Dr Hall did not suggest that Mr D'Rozario presented a current risk of offending in relation to his nephew, his concern related to the effect that any change to his restrictions would have on his capacity to groom the people around him and bring them to the belief that he does not pose a risk.[46]

67 Dr Hall's evidence concluded with his opinion that, given his track record on supervision since being released, Mr D'Rozario's risk can be adequately managed in the community.[47]

68 The opinions in Dr Hall's reports were clearly expressed and his reasons for those opinions clearly disclosed by reference to both the evidence and his expertise. In particular, in relation to his diagnosis and his assessment of Mr D'Rozario's risk, I found Dr Hall's evidence persuasive and I accept it.

69 Dr Wynn Owen produced a psychiatric report dated 8 June 2020 and an addendum psychiatric report dated 2 September 2021.

70 When discussing Mr D'Rozario's earliest offences, Dr Wynn Owen reported that Mr D'Rozario related these offences to being lonely following the end of a relationship. He also observed that Mr D'Rozario's description on the context of his offending did not appear to correlate with what actually occurred.[48]

71 In relation to the child pornography offence, Dr Wynn Owen reported that:[49]

Mr D'Rozario stated at interview that he had no sexual interest in children, in particular girls who were not 'developed', by which he meant his interest was only in overtly post-pubescent females. He acknowledged downloading the video ... (which I note was in part titled 'Porno Underage Dee and Desi 8') although he said: 'I can't remember actually seeking [sic] that'.

72 In relation to the offence of failing to comply with reporting obligations for which Mr D'Rozario was sentenced on 19 November 2013, Dr Wynn Owen stated:[50]

[Mr D'Rozario] stated, 'I stupidly went back online, linked to people via my sisters Facebook friends' ... He acknowledged awareness of breaching SOMS/ANCOR reporting requirements by being in contact with victim KMB, also that the relationship was inappropriate, he did not tell anyone about it, however he recalls thinking 'I am in a relationship' and saying to himself 'she's not forced', further stating 'I was so much in denial from 2009 to 2013'.

...

Mr D'Rozario did state at one point, rather insightfully, in relation to the period during which he was communicating online: 'You don't stop to think about anyone else at that stage. You have a one-track mind'. This suggests sexual preoccupation and primacy/saliency of sexual thinking.

73 Dr Wynn Owen also diagnosed Mr D'Rozario as 'paedophilia, non‑exclusive type, attracted to females'.[51] Dr Wynn Owen also diagnosed Mr D'Rozario as having antisocial and narcissistic personality traits, but stated that he did not meet the criteria for an antisocial, narcissistic or general personality disorder.[52]

74 Dr Wynn Owen provided the following reasons for his diagnosis:[53]

Mr D'Rozario demonstrates [a sexual interest in prepubescent children] through his possession of pictures of children under 13, including a movie clip of a child under 13 engaging in sexual acts with adults, in both 2006 and 2013 ...

A deviant paedophilic sexual interest is also potentially indicated by his engagement in online sexual conversations and attempting to meet with a female who stated she was 12 years old in 2006 and online interactions with another (real) female who was aged 12 years in 2013. Only Mr D'Rozario knows what his mental image of these children was at the time however the recurrence of that behaviour and associated findings of images/videos of very young children are strongly suggestive of a paraphilia.

75 Dr Wynn Owen also stated that Mr D'Rozario had previously acknowledged a sexual interest in underage girls when speaking to other psychologists in 2015 and 2019. However, Dr Wynn Owen noted that it was not clear what age range was being referred to. He stated that the acknowledgment appeared to be a sexual interest in and attraction to peri‑pubescent and post‑pubescent teenaged girls rather than prepubescent female children. He noted that Mr D'Rozario has never acknowledged a sexual attraction to prepubescent female children.[54]

76 Dr Wynn Owen also used the Static‑99R, PCL‑R and RSVP risk assessment tools.

77 Dr Wynn Owen assessed Mr D'Rozario as being in the 'well above average risk' category on the Static‑99R.[55]

78 Initially, Dr Wynn Owen stated that Mr D'Rozario's score did not meet the PCL-R threshold for psychopathy, but that he had a 'relatively high Factor 1 score ... indicating an individual who can be glib, is manipulative, is able to use others without remorse or empathy, with a superficial relatively unchanging emotional state'.[56] After reviewing the PTS calls, Dr Wynn Owen stated in his addendum report:[57]

Mr D'Rozario demonstrates [in the PTS calls] a number of traits over the period reviewed, these include some grandiosity; a lack of empathy in interactions particularly when his partner is emotional; financial dependence on his partner while also abusing the financial support (irresponsibility) and being at times critical of it's (in)adequacy; a clear pattern of response to criticism with abuse and at times threats.

Mr D'Rozario's abuse and criticism of [Ms B] is misogynistic in nature, he frequently belittles her intelligence and maturity and constantly tells her what to do. Mr D'Rozario at times denies swearing or abuse shortly after it has occurred. Consistent interactions of this type, such as denial of actions or behaviours and trying to convince the other person they are mentally unsound or immature, are often called 'gaslighting', and are indicative of a coercive form of control through altering that person's reality.

79 Dr Wynn Owen stated that because of this, the PCL‑R score is higher than when initially assessed, but that Mr D'Rozario still did not meet the threshold for psychopathy. He noted, however, that this further assessment confirmed and reinforced the presence of psychopathic interpersonal and affective traits.[58]

80 On the RSVP, Dr Wynn Owen stated that the following risk factors are present:

(c) escalation of sexual violence.[61] Dr Wynn Owen noted that Mr D'Rozario's offending moved from non‑contact to contact offending, and that his later offences mirrored his stated intentions in the lead up to the 2006 offences;

(d) psychological coercion in sexual violence.[62] Dr Wynn Owen explained that 'psychological coercion is evidenced by developing a relationship of trust through ongoing contact, also through use of age and maturity differentials and through grooming through ongoing contact, and such things as offers of money or participation in activities otherwise potentially unavailable to the victim';[63]

(e) problems with self-awareness.[64] Dr Wynn Owen stated that Mr D'Rozario does not currently believe himself to be at risk of future reoffending and has been unable to identify any treatment needs. Dr Wynn Owen stated that 'failure to recognise one's own risk is regarded as an important dynamic factor for sexual recidivism which increases risk of future offending';[65]

(f) problems with stress and coping.[66] Dr Wynn Owen pointed to Mr D'Rozario's own theory of his offending, which includes references to loneliness and relationship breakdown;

(g) sexual deviance.[67] Dr Wynn Owen pointed to Mr D'Rozario's possession of child exploitation material in 2006 and 2013 as well as his sexual conversations and attempts to have face‑to‑face contact with girls he knew to be 12 years of age;

(h) problems with intimate relationships.[68] Dr Wynn Owen stated that Mr D'Rozario reported difficulty engaging intimately with same age females and that between his release in 2008 and being interviewed in mid‑2013, he had no long‑term age appropriate relationships, but had many often concurrent 'friendships' with underage girls. After reviewing the PTS calls, Dr Wynn Owen stated in his addendum report:[69]

Although the relationship is dysfunctional and the power balance is skewed to Mr D'Rozario who is controlling and domineering there has been no indication of specific risk of physical harm to [Ms B], notwithstanding that it seems inevitable that she has suffered psychological harm, her self‑esteem and confidence are at risk and she is at elevated risk of mood disorder.

(i) problems with non‑intimate relationships.[70] Dr Wynn Owen stated that Mr D'Rozario has just one sustained friendship with a person who is not a member of his family, and that his relationship with this person has been intermittent and that he had not told the friend about his first sexual offending;

(j) problems with planning.[71] Dr Wynn Owen pointed to Mr D'Rozario's rapid return to an offence cycle and escalation of offending following release from prison in 2008. He stated that this risk factor is strongly associated with poor self‑awareness which can result in the individual placing themselves in high risk situations, and that the risk factor is associated with an increased risk of future sexual offending;[72]

(k) problems with treatment.[73] Dr Wynn Owen stated that Mr D'Rozario has been unable to identify his treatment needs and stated that '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'; and

(l) problems with supervision.[74] Dr Wynn Owen pointed to Mr D'Rozario's multiple breaches of National Child Offender Register reporting conditions, sexual offending while subject to SOMS supervision and breaches of his undertaking pending the present proceedings. Dr Wynn Owen noted that Mr D'Rozario had failed to disclose social media accounts, a telephone account, breached exclusion zones, deleted telephone logs and deleted SMS messages. Dr Wynn Owen stated that it was specifically concerning that Mr D'Rozario's explanations for these breaches were glib and appeared not to recognise the importance of transparency in relation to his telephone and SMS contacts.

81 In relation to possible scenarios for reoffending Dr Wynn Owen reported that the most likely scenario would be for Mr D'Rozario to offend in a manner similar to previous offences. That is, following an emotional stressor such as an argument with his partner, he would seek to manage his affect by talking to underage girls online. Dr Wynn Owen stated that it is likely that once the conversation commences it would be rapidly sexualised by Mr D'Rozario, he would groom them through further contact, possibly seek sexualised images from them and suggest a meeting. If the meeting were to progress, Mr D'Rozario would likely engage in contact offending against a girl aged 12 to 15, including sexual penetration.

82 Dr Wynn Owen said that it is less likely that his offending would escalate or change.[75]

83 Dr Wynn Owen stated that the imminence of Mr D'Rozario's reoffending is related to his ability to manage stresses of community reintegration and a newly cohabiting relationship. He noted that Mr D'Rozario reported offending 'within weeks' of being released from prison in 2008, suggesting that it is possible for Mr D'Rozario to reoffend within a matter of weeks.[76]

84 Dr Wynn Owen noted in his report that cohabiting in an intimate relationship was a protective factor against reoffending.

85 Dr Wynn Owen concluded his report with the following opinion:[77]

On the basis of a structure professional judgment approach (combining clinical assessment and review of available collateral information with structured and semi-structured assessment tools and consideration of static and dynamic risk factors) I am of the opinion that Mr D'Rozario presents a high risk of future serious sexual offending if not subject to detention or community supervision.

86 Dr Wynn Owen stated that Mr D'Rozario's future risk will potentially be reduced by ongoing engagement in therapy, if he is able to see the need for treatment and engage fully. Dr Wynn Owen also stated that Mr D'Rozario's intimate relationship can reduce risk, if it is stable.

87 In his addendum report, Dr Wynn Owen stated that his review of the PTS calls had not varied the estimate of risk of future offending made in his previous report, and that Mr D'Rozario continues to present a high risk of committing a future serious offence if not subject to detention or community supervision.[78]

88 Dr Wynn Owen's recommendations included the following:[79]

(a) one‑on‑one counselling with a specialist psychologist to confirm and address outstanding treatment needs, in particular in relation to self‑awareness and self‑management, sexual deviance (with a focus on developing an understanding of why he uses sexualised behaviour with underage girls as a coping strategy), emotional recognition and regulation and interpersonal function;

(b) if released on a supervision order, the conditions should include:

(i) conditions designed to prevent contact with females aged 17 years and under;

(ii) a requirement to participate in criminogenic interventions;

(iii) if access to a telephone is granted (including use through a third party) all use to be fully visible and accessible to the CCO (i.e. telephone calls, metadata and actual message and online content);

(iv) if access to the internet is granted (including use through a third party), the history must be fully visible to the CCO; and

(v) conditions designed to cross‑check his movements and meetings as there is a history of unreliable reporting.

89 Dr Wynn Owen stated that any supervision order should be for a period of five years. He based this opinion on research literature indicating that five years offence free in the community is likely to reduce future reoffending risk by 50%, that a cohabiting relationship of two years or more reduces Static‑99R score by one, as will his age in five years' time.

90 In his evidence at the hearing, Dr Wynn Owen said that, because of the pivotal relevance of internet access to Mr D'Rozario's past offending, he remained concerned about internet access. While he recognised that there was a need for any offender to be able to demonstrate that they are able to self‑manage their risk over the duration of an order, he said that the 'gold standard of reducing risk would be not having internet access'.[80] In that regard, Dr Wynn Owen supported a graduated access to the internet as Mr D'Rozario enters treatment, by which, Dr Wynn Owen stressed, he meant criminogenic treatment not simply psychotherapeutic support (such as he had been recently receiving).

91 In relation to Mr D'Rozario's request for greater ease of contact with his nephew, Dr Wynn Owen also expressed concern as to the 'message' sent by any relaxation of the requirements for approval and supervision as it may feed into Mr D'Rozario's sense that he is not a risk.[81] In that context he agreed in cross‑examination that Mr D'Rozario had no male victims or victims of that age.[82]

92 Dr Wynn Owen gave evidence that notwithstanding that he identified dysfunctional aspects of the relationship between Mr D'Rozario and Ms B (evident on the PTS calls), that on balance the relationship was likely to be a protective factor in Mr D'Rozario's case.[83]

93 Dr Wynn Owen also confirmed, in evidence, his opinion that Mr D'Rozario's risk can be adequately managed in the community.[84]

94 As in the case of Dr Hall, I found Dr Wynn Owen's evidence in relation to his diagnosis and his assessment of Mr D'Rozario's risk persuasive. I accept that evidence. Any differences between Dr Hall and Dr Wynn Owen were, in my assessment, principally matters of emphasis. In relation to the important issues of relevant to the application, such as Mr D'Rozario's risk, his pattern of offending and his treatment needs, their evidence was consistent.

Extent to which the respondent cooperated in the examinations

95 It is apparent from both Dr Hall and Dr Wynn Owen's reports that Mr D'Rozario cooperated in the examinations, in the sense that he actively engaged with each psychiatrist. In each case, however, his cooperation was characterised by impression management. For example Dr Hall reported:[85]

[Mr D'Rozario] was polite almost to the point of being obsequious and whilst superficially cooperative, he was ultimately evasive. He impressed as a verbose and verbally facile individual who engaged heavily in impression management and attempted to control the direction and content of the interview. His account appeared scripted, lacked depth, and repeatedly made the case for his good character. He gave lengthy, jargonistic and scripted descriptions of how various programmes had helped him, and was keen to report the various things that he had learnt. He was obfuscatory, defended and circumferential in response to enquiries about any sexual interest in children. He provided a sanitised narrative in which he both minimised and romanticised some aspects of his offending.

96 Similarly, Dr Wynn Owen reported:[86]

His mood was stable, relaxed, his affect was restricted with little variation resulting from changes in emotional content of topics discussed notwithstanding the gravity and emotional loading of matters under discussion.

He tended to frequently veer off topic, particularly when discussing offending, returning often to what he had learned from interventions and his personal realisations or detailed descriptions of his personal explanations of the reasons for his offending.

Mr D'Rozario's previously noted tendency to present himself in a positive light was apparent at all interviews.

Other medical, psychiatric, psychological or other assessments - s 7(3)(b)

(a) individual management plans prepared by the Department of Justice dated 23 October 2018, 18 February 2019 and 7 August 2019;

(b) presentence reports of Mandy Corrigan dated 2 February 2007, Emma Cashmore dated 1 November 2013 and Lisa Rathmann dated 1 December 2014;

(c) psychological reports of David Summerton dated 5 May 2007, Helen Fowler dated 1 November 2013 and 25 February 2015, Wendy Wager dated 23 July 2018 and Dr Sarah George dated 22 January 2019 and 2 May 2019;

(d) a treatment assessment report dated 30 April 2015;

(e) intensive sex offender treatment program completion report dated 28 March 2017;

(g) updated parole assessment report dated 19 December 2018;

(h) post sentence supervision order report dated 16 January 2020;

(i) undertaking assessment report dated 24 February 2020;

(j) a proposed DSO management plan of Dr Bannister dated 11 May 2020 and addendum plan dated 26 October 2021; and

(k) community supervision assessment from Ms Maynard dated 1 November 2021.

98 It is not necessary for me to discuss every report in detail. Much of their content is largely of historical relevance and may be briefly summarised.

99 It is clear from the presentence reports that Mr D'Rozario has, in the past, consistently attempted to minimise the seriousness of his offending and deny any sexual interest in underage girls. For example:

(a) in her report dated 2 February 2007, Ms Corrigan stated that Mr D'Rozario denied having an intention to engage in sexual activity with underage girls, stated that he did not believe the girl he was talking to online was actually 12 years old and described his offending as a 'stupid mistake';[87]

(b) Ms Cashmore stated in her report dated 1 November 2013 that Mr D'Rozario accepted responsibility for his offending but appeared to minimise the seriousness of his actions and lacked insight regarding the motivation behind his offending.[88] Ms Cashmore noted that Mr D'Rozario worked hard to assert that he had no sexual interest in underage females; and

(c) Ms Rathmann stated in her report dated 1 December 2014 that Mr D'Rozario minimised his culpability for his offences. He claimed to take full responsibility for his actions but diverted blame onto the victim by stating that she had asked to stay the night with him.

100 The past psychological reports reveal that Mr D'Rozario's responses to treatment have been limited, and marked by denial and lack of insight. For example:

(a) Ms Fowler's report of 1 November 2013 noted that Mr D'Rozario consistently maintained that he is not interested in underage girls.[89] She recommended further treatment to increase his insight.[90] In her subsequent report dated 25 February 2015, Ms Fowler observed that Mr D'Rozario still maintains that underage females are not his primary sexual preference but has been able to acknowledge that he finds underage females easier to form relationships with than women of his own age;[91]

(b) Ms Wager stated in her report dated 23 July 2018 that Mr D'Rozario failed to express an understanding of why he acted out his emotional difficulties and challenges through illegal sexualised behaviour and that he lacked awareness regarding the future potential restrictions upon his behaviour;[92] and

(c) Dr George stated in her progress report dated 22 January 2019 that Mr D'Rozario acknowledged his deviant sexual interest but maintained that it was historical.[93] Dr George also reported that Mr D'Rozario tended to return to a discourse of speaking about what he had learned from prior intervention and had difficulty identifying treatment targets.[94]

101 Dr Bannister is a forensic psychologist with the department's forensic psychological service. In addition to giving evidence at the hearing, Dr Bannister prepared a proposed DSO management plan dated 11 May 2020 and an addendum plan dated 26 October 2021. Those reports are largely concerned with Mr D'Rozario's treatment needs and proposed future treatment.

102 In that context Dr Bannister observed that Mr D'Rozario continued to deny any degree of sexual deviancy.[95] He noted, however, that Mr D'Rozario was able to articulate an understanding of the mechanisms of his sexual offending and was able to discuss warning signs related to increased risk.[96]

103 Dr Bannister observed that Mr D'Rozario had been receiving private psychological support since his release. His therapist, however, maintained that Mr D'Rozario did not pose any risk of recidivism and had no outstanding criminogenic need. This indicated to Dr Bannister that the treatment he had received had not been criminogenic and was supportive in nature only.

104 Dr Bannister concluded that Mr D'Rozario may benefit from continued consolidation of previously made gains (with a particular focus on developing and maintaining healthy intimate and non‑intimate relationships, as well as general and sexual self‑regulation), scenario‑based risk management with a suitably qualified clinician and sessions with a psychologist aimed at addressing his focus on maintaining a positive presentation.[97] He also suggested treatment with a forensically experienced clinician to increase his internal motivation to make genuine and lasting gains.[98]

105 Dr Bannister stated that if Mr D'Rozario is subject to a supervision order, he would be allocated an experienced psychologist who will be better placed than a private psychologist to address Mr D'Rozario's needs.[99]

106 In his evidence Dr Bannister confirmed that the best therapeutic approach moving forward would be that Mr D'Rozario's treatment would transfer to someone within the department who has that forensic experience and who would be looking to focus on criminogenic need. In that context Mr D'Rozario's contact with his private therapist would become largely redundant.[100]

107 I found Dr Bannister's approach to Mr D'Rozario's treatment needs thoughtful and helpful. I accept his evidence, consistent with that of Dr Hall and Dr Wynn Owen, that Mr D'Rozario's future treatment should focus on his outstanding criminogenic needs and, in particular, that it should not reinforce his view that he poses no ongoing risk.

108 Ms Maynard is a Senior Community Corrections Officer with the COMU and is Mr D'Rozario's current CCO. While there are other supervision assessments that I have considered, the most relevant community supervision report is Ms Maynard's assessment dated 1 November 2021.

109 In her report, Ms Maynard stated that Mr D'Rozario has been compliant with his reporting obligations and currently attends for supervision on a weekly basis. She stated, however, that there are ongoing concerns regarding impression management and grooming type behaviours. She stated:[101]

He has been observed to attempt to manipulate or groom different officers, for example asking the same question of several officers, despite already being told the outcome or answer to his request, this has occurred frequently in relation to curfew, and praising officers or comparing them to others who have supervised him previously. Further, he appears to present himself in a positive light, often appearing to make significant effort to impression manage within supervision, with no change in presentation noted, even at times when there could be increased stress, for example, when non‑compliance is raised. Mr D'Rozario's level of impression management has made it difficult to gain a clear understanding of his current circumstances, particularly around his coping skills and relationship. At times, Mr D'Rozario can also be demanding and has been observed to push boundaries. He has been noted to at times pressure COMU to approve requests, for example when considering a request in relation to his nephew, he would revert back to the impact on practising his faith and questioning how much his 'family have to suffer'.

110 Ms Maynard stated that Mr D'Rozario had deflected or justified his decision‑making when challenged and had attempted to 'split services'. Ms Maynard gave an example that when seeking approval from COMU to attend a location, he explained that SOMS had no difficulty with the location. COMU confirmed that no such discussion occurred between SOMS and Mr D'Rozario.[102] Ms Maynard said this is an issue that has been raised with Mr D'Rozario on numerous occasions.

111 Ms Maynard stated that Mr D'Rozario had, overall, accurately recorded his movements and associations within his diary and rectified issues if raised, although she noted that Mr D'Rozario has attended some areas of concern and that he lacked self‑awareness of the risks posed by these locations.[103]

112 Ms Maynard reported that Mr D'Rozario had maintained his relationship with Ms B and speaks of the relationship in a positive light. Mr D'Rozario told Ms Maynard that there was only one telephone conversation between him and Ms B while he was in prison when he became elevated, and Ms Maynard reported that Mr D'Rozario provided various explanations for his behaviour.[104] As discussed below, having listened to some of the PTS calls, I am satisfied that this is not the case and reflects Mr D'Rozario's tendency towards minimisation of his behaviour.

113 Ms Maynard reported that Mr D'Rozario has the support of his parents and sisters, has regular contact with two aunts and two primary social supports.[105] Mr D'Rozario has been permitted to see is nephew who is just over 2 years old. Meetings between Mr D'Rozario and his nephew have occurred under conditions involving supervisors.[106]

114 Ms Maynard stated that Mr D'Rozario has, overall, demonstrated compliance with his supervision order obligations, albeit with ongoing issues of impression management and grooming. He has stable accommodation and an ongoing desire to abide by any condition imposed.[107]

115 Ms Maynard stated that if Mr D'Rozario was placed on a supervision order, he would continue to be closely monitored and supervised by members of the risk management team.[108] He would also continue to be subject to GPS monitoring. In her evidence at the hearing Ms Maynard outlined in more detail the manner in which Mr D'Rozario's supervision is coordinated with the risk management team, which meets once a week.[109]

116 I was impressed by Ms Maynard's approach to Mr D'Rozario's supervision and with her keen appreciation of his tendency to impression manage and attempts to groom supervisors. I have every confidence in her ability, together with the risk management team, to critically approach Mr D'Rozario's supervision in accordance with the need to protect the community.

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

117 There can be little doubt that Mr D'Rozario has a propensity to commit serious offences in the future, in the sense that he has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim.[110]

118 Both Dr Wynn Owen and Dr Hall have diagnosed Mr D'Rozario with paedophilia, a diagnosis that I accept. Although Mr D'Rozario has consistently denied it, Mr D'Rozario still has a deviant sexual interest in underage girls. That tendency has been reflected in offending in relation to girls between 12 to 15 years of age, by engaging in sexualised conversations with the intention of contact offending. Both Dr Hall and Dr Wynn Owen concluded, as do I, that the most likely scenario for reoffending would be for Mr D'Rozario to offend in a similar manner to his previous offences.[111]

119 I am satisfied that Mr D'Rozario has a propensity to commit serious sexual offences in relation to girls under the age of 16.

Any pattern of offending behaviour - s 7(3)(d)

120 There is a clear, and predictable, pattern of offending behaviour by Mr D'Rozario. Mr D'Rozario consistently chooses young victims (girls aged 12 to 15 years) and befriends them on the internet. He then proceeds to groom the victim with sexualised conversation, with the ultimate purpose of contact offending, which has once occurred.

Addressing the cause or causes of the offending and rehabilitation programs - s 7(3)(e) and (f)

121 As the discussion of the previous reports have made clear, Mr D'Rozario's approach, and response to treatment, has been mixed. In a general sense it can be said that he has made efforts to address the causes of his offending, in the sense that he has regularly participated in programs. Nevertheless, the efficacy of those efforts have, in my view, been 'blocked' by Mr D'Rozario's consistent unwillingness or inability to address the deeper causes of his offending, in particular his sexual deviance.

(a) Mr D'Rozario first underwent sex offender treatment in with Ms Fowler from September 2013. Over the course of 12 months he had 11 sessions with Ms Fowler. Ms Fowler reported that Mr D'Rozario's treatment gains were initially slow due to his defensiveness, but as he became more comfortable with the therapeutic process he was able to offer more relevant information which enabled some gains.[112] She stated that Mr D'Rozario was able to identify and communicate the aetiology and motivation for his sexual offending behaviour, which she considered a significant treatment gain;[113]

(b) Mr D'Rozario undertook the intensive sex offender treatment program between 29 June 2016 and 1 March 2017. The program completion report stated that Mr D'Rozario recognised how poor communication skills, emotional loneliness and insecure attachment led to his offending behaviour which was noted to be a considerable treatment gain;[114]

(c) Mr D'Rozario attended eight individual psychological intervention sessions with Dr George at Acacia Prison between 18 November 2018 and 1 March 2019. While Dr George reported some gains, such as recognising the importance of monitoring his thoughts and feelings on a regular basis and not setting unrealistic expectations for himself, upon being denied parole Mr D'Rozario questioned whether intervention was useful. He was unable to identify any further treatment needs;[115] and

(d) as noted above, Mr D'Rozario has completed 21 sessions with a private counsellor since March 2020. As Dr Bannister reported however, the treatment he received in those sessions has not been criminogenic and has been supportive in nature only.

123 As I have said above, the effect of these treatments on Mr D'Rozario have been mixed. As Dr Hall stated in his report, Mr D'Rozario's paedophilia has not yet been a specific target of treatment due to his denial of its existence. It therefore remains an ongoing unmet treatment need.[116]

124 Similarly, Dr Wynn Owen stated:[117]

Treatment to date has enabled Mr D'Rozario to form an intellectual theory of his offending which, significantly, does not explain why his coping strategy is illegal sexual behaviour with young girls.

Risk and the need to protect members of the community - s 7(3)(h) and (i)

125 It will be apparent from what is set out above that the evidence is to the effect that, in the absence of a restriction order, there is a significant risk that Mr D'Rozario would commit a serious offence, and in particular a sexual offence against a 12 to 15‑year‑old girl. I find that to be the case.

126 Both Dr Hall and Dr Wynn Owen considered that Mr D'Rozario presents a high risk of committing a serious offence. I accept that evidence. In any event, the label 'high' is not determinative. Mr D'Rozario's pattern of offending and the ongoing risk that it poses to 12 to 15‑year‑old girls, without him being actively supervised, is unacceptable and the community must be protected from that risk.

Other relevant matters - s 7(3)(j)

127 I am required by s 7(3)(j) of the HRSO Act to consider any other relevant matter.

128 There is one matter that I consider to be relevant that I should specifically refer to.

129 As will be apparent, Mr D'Rozario is in a long‑term relationship with his partner, Ms B. As stated above, the State tendered a series of extracts of PTS calls between Mr D'Rozario and Ms B from 2017 to 2020.

130 Dr Hall and Dr Wynn Owen expressed the view that those recordings revealed a dysfunctional relationship between Mr D'Rozario and Ms B and that Mr D'Rozario's behaviour in the calls may be characterised as controlling, denigrating and manipulative.

131 Having listened to the recordings myself, I agree with those descriptions. No doubt some allowance must be given for the stresses associated with imprisonment and the effect of those stressors on Mr D'Rozario's mood. Nevertheless, giving full allowance for those factors, some of Mr D'Rozario's language towards Ms B is disgraceful and inexcusable. Of particular concern is the extent to which Mr D'Rozario gaslights Ms B by suggesting that she is at fault in relation to her treatment of him, causing her to plead with him for forgiveness or permission. Mr D'Rozario's apparent lack of compassion for Ms B in these situations provides independent verification of his tendency towards self‑centeredness and his attempts to manipulate others.

132 While I, as with Dr Wynn Owen, am ultimately satisfied that Mr D'Rozario's relationship with Ms B is a protective factor that ameliorates his risk, it will be important for those supervising him to monitor that relationship and that the criminogenic treatment he receives addresses his behaviour in his intimate and personal relationships. Not only is this type of treatment good for Mr D'Rozario and (especially) Ms B in and of themselves, progress towards a healthier relationship between them will better contribute to the protection of the community.

Conclusions as to whether Mr D'Rozario is a high risk serious offender

133 I am satisfied, in terms of s 7(1) of the HRSO Act, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to Mr D'Rozario to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence.

134 The necessity of making a restriction order in this case follows directly from the nature of the unacceptable risk that Mr D'Rozario will otherwise commit a serious offence. For all of the reasons I have given above, Mr D'Rozario's risk of committing a serious offence without supervision is high and, without a restriction order, the community will not be adequately protected from it.

135 I therefore find that Mr D'Rozario is a high risk serious offender within the meaning of the HRSO Act.

136 As a consequence of my finding that Mr D'Rozario is a high risk serious offender, I am required to make a restriction order.

137 As I said at the outset the State did not seek an order that Mr D'Rozario be made subject to a continuing detention order. Rather the State sought that I make a supervision order.

138 I am satisfied that a supervision order is the appropriate order in the present case. The evidence of both Dr Hall and Dr Wynn Owen was to the effect that Mr D'Rozario can be safely managed in the community. I agree with that assessment. In particular, it is significant that Mr D'Rozario has been subject to an interim supervision order since June 2020 and has, overall, demonstrated compliance with his obligations, albeit with ongoing issues of impression management and grooming. His performance on the interim supervision order thus far augurs well for his continued management in the community.

139 In that regard, I am satisfied, on the balance of probabilities, that Mr D'Rozario will substantially comply with the standard conditions of a supervision order. In that regard, while there were some earlier breaches of his initial undertaking, Mr D'Rozario's compliance with supervision significantly improved after June 2020.

140 I need not set out all of the conditions of the supervision order in these reasons. Most of the conditions proposed by the State were uncontroversial. In relation to those conditions that were the subject of submissions by the parties, I record my reasons for those conditions as follows.

141 As referred to at [63] to [65] and [90] above, an important issue in relation to the conditions of the supervision order was whether Mr D'Rozario should be permitted greater access to the internet, and in particular, whether he should be permitted access to a smartphone.

142 In my view, it is too early for Mr D'Rozario to be permitted unsupervised access to the internet, particularly given that his criminogenic needs have not been sufficiently addressed. It is preferable, in my view, to provide his CCO with appropriate discretion to enable such access in the future, if Mr D'Rozario can demonstrate that he has made sufficient gains that his use of the internet will not pose an unacceptable risk. In that regard, I made the following conditions in relation to Mr D'Rozario's internet use, namely that he must:

39. Subject to condition 40, not access the internet on any computer, telecommunication or other electronic device capable of internet access unless such access is supervised at all times by a person approved in advance by a CCO and/or for a purpose approved in advance by a CCO;

40. If he or she is satisfied, following assessment by your risk management team, that it is appropriate to do so and the risks can be properly managed, your CCO may permit you to possess one smartphone for unsupervised access of the internet (subject to conditions 41, 42, 43, 44, 45 and 46);

41. Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunication and/or electronic device, OR dispose of, or give away, or purposefully damage any 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;

42. 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;

43. With respect to any of your computers, telecommunication and/or electronic devices, enable pin or password protection of that device and not provide or allow to be obtained, any pin or passwords or any other device locking means required for such access to anyone other than Police or a CCO;

44. Not join, access, register, view, or use any social media applications, programs or services without the prior approval of a CCO;

45. Not to share or access any computer, telecommunication and/or electronic devices of another person or organisation that is capable of connecting to the internet, unless such access is approved in advance by the CCO;

46. Not conduct electronic media searches for, access data containing, or collect or possess in either electronic or physical form, images of children, whether indecent or not, with the exception of clothed family members;

143 Similarly, Mr D'Rozario sought an amendment to his conditions relating to contact with children, to permit him to have contact with his young nephew. Again, in my view, it is important for the integrity of his supervision order generally that Mr D'Rozario's CCO retains full authority to control his contact with any children, even his young nephew, in relation to whom he does not currently present a risk.

144 I have therefore determined not to allow unapproved contact in relation to Mr D'Rozario's nephew. I will, however, amend the condition to allow his CCO to provide a standing approval in relation to such contact, which may be revoked at any time. Such a condition in my view, provides an appropriate balance between setting clear conditions on Mr D'Rozario's behaviour while providing his CCO with the capacity to enable him to demonstrate that he can be trusted with more flexible arrangements.

145 For that reason, the condition in relation to contact with children provides that Mr D'Rozario must:

33. 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;

(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.

For the purposes of paragraph (a) of this condition, in the case of contact with your nephew, the CCO may give a written standing approval of such contact and a written standing approval of the adult approved to supervise such contact. Any such standing approval may be revoked at any time.

146 The expert evidence differed as to the appropriate length of the supervision order. As recorded above, Dr Wynn Owen considered that any supervision order should be for five years whereas Dr Hall considered that it should be in the order of 10 years. Dr Hall's reasons for that view are set out at [62] above. In my view, it is in the interests of the community that Mr D'Rozario's supervision be of sufficient duration to enable a proper and meaningful response to intervention. In many respects, he will be starting afresh. Nevertheless, given his reasonable performance under supervision since March 2020, somewhat less than 10 years is appropriate. I have therefore determined that the duration of the supervision order will be eight years.

147 Section 27(3) of the HRSO Act provides that 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. In the present case, given that Mr D'Rozario was already on an interim supervision order, I was satisfied that it was practically feasible for the supervision order to take effect immediately.

148 For all of the above reasons, I made the supervision order at the hearing of the restriction order application.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.

Principal Associate to the Honourable Chief Justice Quinlan

[1] The State of Western Australia v D'Rozario [2020] WASC 187.

[5] The State of Western Australia v Garlett [2021] WASC 387 (Garlett).

[7] The State of Western Australia v Rao [2019] WASC 93 [28] ‑ [29] (Quinlan CJ).

[10] Psychiatric report of Dr Mark Hall dated 20 May 2020 [37] (Exhibit 1, 734).

[11] Addendum psychiatric report of Dr Mark Hall dated 1 November 2021 [14] (Exhibit 1, 805).

[12] Psychiatric report of Dr Mark Hall dated 20 May 2020 [7] (Exhibit 1, 725).

[13] Psychiatric report of Dr Mark Hall dated 20 May 2020 [8], [13] (Exhibit 1, 725, 727).

[14] Psychiatric report of Dr Mark Hall dated 20 May 2020 [9] (Exhibit 1, 725 ‑ 726).

[15] Psychiatric report of Dr Mark Hall dated 20 May 2020 [12], [13] (Exhibit 1, 726 ‑ 727).

[16] Psychiatric report of Dr Mark Hall dated 20 May 2020 [59] (Exhibit 1, 741).

[17] Psychiatric report of Dr Mark Hall dated 20 May 2020 [60] (Exhibit 1, 741 ‑ 742).

[18] Psychiatric report of Dr Mark Hall dated 20 May 2020 [70].

[19] Psychiatric report of Dr Mark Hall dated 20 May 2020 [70] (Exhibit 1, 745).

[20] Psychiatric report of Dr Mark Hall dated 20 May 2020 [70].

[21] Psychiatric report of Dr Mark Hall dated 20 May 2020 [71].

[22] Psychiatric report of Dr Mark Hall dated 20 May 2020 [71] (Exhibit 1, 745 ‑ 746).

[23] Psychiatric report of Dr Mark Hall dated 20 May 2020 [71].

[24] Psychiatric report of Dr Mark Hall dated 20 May 2020 [71] (Exhibit 1, 745 ‑ 746).

[25] Psychiatric report of Dr Mark Hall dated 20 May 2020 [72] (Exhibit 1, 746).

[26] Psychiatric report of Dr Mark Hall dated 20 May 2020 [72] (Exhibit 1, ).

[27] Psychiatric report of Dr Mark Hall dated 20 May 2020 [73] (Exhibit 1, 746).

[28] Addendum psychiatric report of Dr Mark Hall dated 1 November 2021 [24] (Exhibit 1, 807).

[29] Psychiatric report of Dr Mark Hall dated 20 May 2020 [74] (Exhibit 1, 746).

[30] Addendum psychiatric report of Dr Mark Hall dated 1 November 2021 [25] (Exhibit 1, 807).

[31] Psychiatric report of Dr Mark Hall dated 20 May 2020 [75] (Exhibit 1, 746).

[32] Psychiatric report of Dr Mark Hall dated 20 May 2020 [76] (Exhibit 1, 747).

[33] Psychiatric report of Dr Mark Hall dated 20 May 2020 [77] (Exhibit 1, 747).

[34] Psychiatric report of Dr Mark Hall dated 20 May 2020 [79] (Exhibit 1, 747 ‑ 748).

[35] Psychiatric report of Dr Mark Hall dated 20 May 2020 [86] (Exhibit 1, 750).

[36] Psychiatric report of Dr Mark Hall dated 20 May 2020 [82] (Exhibit 1, 749).

[37] Addendum psychiatric report of Dr Mark Hall dated 1 November 2021 [28] (Exhibit 1, 808)

[38] Psychiatric report of Dr Mark Hall dated 20 May 2020 [83] (Exhibit 1, 749).

[39] Psychiatric report of Dr Mark Hall dated 20 May 2020 [83] (Exhibit 1, 749).

[40] Addendum psychiatric report of Dr Mark Hall dated 1 November 2021 [24] (Exhibit 1, 807).

[41] Psychiatric report of Dr Mark Hall dated 20 May 2020 [84] (Exhibit 1, 749).

[42] Psychiatric report of Dr Mark Hall dated 20 May 2020 [85] (Exhibit 1, 750).

[43] Addendum psychiatric report of Dr Mark Hall dated 1 November 2021 [29] (Exhibit 1, 808).

[44] Addendum psychiatric report of Dr Mark Hall dated 1 November 2021 [27] (Exhibit 1, 808).

[48] Psychiatric report of Dr Wynn Owen dated 8 June 2020 (Exhibit 1, 757 ‑ 758).

[49] Psychiatric report of Dr Wynn Owen dated 8 June 2020 (Exhibit 1, 759).

[50] Psychiatric report of Dr Wynn Owen dated 8 June 2020 (Exhibit 1, 757, 759).

[51] Psychiatric report of Dr Wynn Owen dated 8 June 2020 (Exhibit 1, 776).

[52] Psychiatric report of Dr Wynn Owen dated 8 June 2020 (Exhibit 1, 777 ‑ 778).

[53] Psychiatric report of Dr Wynn Owen dated 8 June 2020 (Exhibit 1, 776 ‑ 777).

[54] Psychiatric report of Dr Wynn Owen dated 8 June 2020 (Exhibit 1, 777).

[55] Psychiatric report of Dr Wynn Owen dated 8 June 2020 (Exhibit 1, 778).

[56] Psychiatric report of Dr Wynn Owen dated 8 June 2020 (Exhibit 1, 778).

[57] Addendum psychiatric report of Dr Wynn Owen dated 2 September 2021 (Exhibit 1, 799 ‑ 800).

[58] Addendum psychiatric report of Dr Wynn Owen dated 2 September 2021 (Exhibit 1, 800).

[59] Psychiatric report of Dr Wynn Owen dated 8 June 2020 (Exhibit 1, 779).

[60] Psychiatric report of Dr Wynn Owen dated 8 June 2020 (Exhibit 1, 779). He stated that the diversity is in there being contact and non‑contact offences, identified and non‑identifiable victims, involving both pubescent and prepubescent victims.

[61] Psychiatric report of Dr Wynn Owen dated 8 June 2020 (Exhibit 1, 779).

[62] Psychiatric report of Dr Wynn Owen dated 8 June 2020 (Exhibit 1, 779).

[63] Psychiatric report of Dr Wynn Owen dated 8 June 2020 (Exhibit 1, 779).

[64] Psychiatric report of Dr Wynn Owen dated 8 June 2020 (Exhibit 1, 780).

[65] Psychiatric report of Dr Wynn Owen dated 8 June 2020 (Exhibit 1, 780).

[66] Psychiatric report of Dr Wynn Owen dated 8 June 2020 (Exhibit 1, 780).

[67] Psychiatric report of Dr Wynn Owen dated 8 June 2020 (Exhibit 1, 781).

[68] Psychiatric report of Dr Wynn Owen dated 8 June 2020 (Exhibit 1, 781).

[69] Addendum psychiatric report of Dr Wynn Owen dated 2 September 2021 (Exhibit 1, 800).

[70] Psychiatric report of Dr Wynn Owen dated 8 June 2020 (Exhibit 1, 781).

[71] Psychiatric report of Dr Wynn Owen dated 8 June 2020 (Exhibit 1, 781).

[72] Psychiatric report of Dr Wynn Owen dated 8 June 2020 (Exhibit 1, 782).

[73] Psychiatric report of Dr Wynn Owen dated 8 June 2020 (Exhibit 1, 782).

[74] Psychiatric report of Dr Wynn Owen dated 8 June 2020 (Exhibit 1, 782).

[75] Psychiatric report of Dr Wynn Owen dated 8 June 2020 (Exhibit 1, 783 ‑ 784).

[76] Psychiatric report of Dr Wynn Owen dated 8 June 2020 (Exhibit 1, 784).

[77] Psychiatric report of Dr Wynn Owen dated 8 June 2020 (Exhibit 1, 788).

[78] Addendum psychiatric report of Dr Wynn Owen dated 2 September 2021 (Exhibit 1, 800 ‑ 801).

[79] Psychiatric report of Dr Wynn Owen dated 8 June 2020 (Exhibit 1, 788 ‑ 789).

[85] Psychiatric report of Dr Mark Hall dated 20 May 2020 [58] (Exhibit 1, 740 ‑ 741).

[86] Psychiatric report of Dr Wynn Owen dated 8 June 2020 (Exhibit 1, 776).

[87] Exhibit 1, 213 ‑ 214. This was in relation to his offending for which he was sentenced on 29 May 2007.

[110] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [178] (Murray AJA). His Honour was there addressing propensity under the Dangerous Sexual Offenders Act.

[116] Psychiatric report of Dr Mark Hall dated 20 May 2020 [60].

[117] Psychiatric report of Dr Wynn Owen dated 8 June 2020 (Exhibit 1, 782).