THE STATE OF WESTERN AUSTRALIA -v- DRAGON [No 2] [2022] WASC 189 (31 May 2022)

3 The respondent's sentence for his most recent conviction expired on 17 December 2021, and he has been detained in custody pending the final determination of this application pursuant to s 46(2)(c)(i) of the HRSO Act.

4 On 29 November 2021, after a preliminary hearing of the application pursuant to s 46(1) of the HRSO Act, Quinlan CJ found that there were reasonable grounds for believing that a court might find that the respondent is a high risk serious offender within the meaning of the HRSO Act: The State of Western Australia v Dragon [2021] WASC 425. An interim detention order was made pursuant to s 46(2)(c)(i), together with programming orders under s 46(2)(a) and s 74, requiring the respondent to undergo examinations by two qualified experts, a psychiatrist, Dr Peter Wynn Owen, and a psychologist, Ms Julie Hasson, for the purpose of preparing reports. The court must have regard to such reports in determining the State's application by operation of s 7(3)(a) of the HRSO Act.

5 The hearing of the restriction order application was originally scheduled to commence on 5 May 2022. However, one week prior to the hearing, the State advised that only one report had been received, being that of Ms Hasson. After a directions hearing on 3 May 2022, the hearing of the restriction order application was vacated.

6 At the hearing of the State's application on 24 May 2022, the respondent did not oppose the court finding that he is a high risk serious offender.[3] For the reasons that follow, I am satisfied that it is necessary to make a restriction order to ensure adequate protection of the community against the unacceptable risk that the respondent will commit a serious offence. It is appropriate that the respondent be subject to supervision for 10 years, and required to comply with over 60 conditions which shall be imposed to guard against the risk that the respondent poses to the community. Subject to hearing from the parties as to the form of the orders, I propose to make a supervision order in the terms set out at sch A to these reasons.

7 The objects of the HRSO Act as outlined in s 8 are:

(a) to provide for the detention in custody or the supervision of high risk serious offenders to ensure adequate protection of the community and of victims of serious offences; and

(b) to provide for continuing control, care or treatment of high risk serious offenders.

8 Section 7(1) of the HRSO Act provides that an offender is a 'high risk serious offender' if the court dealing with an application under the HRSO 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 to ensure adequate protection of the community against the unacceptable risk that the person will commit a serious offence. The State has the onus of satisfying the court that an offender is a high risk serious offender.[4]

9 In the HRSO Act, a 'restriction order' means a continuing detention order or a supervision order.[5] A continuing detention order is an order that the offender be detained in custody for an indefinite term for control, care, or treatment. A supervision order is an order that the offender, when not in custody, is to be subject to stated conditions in accordance with s 30 of the HRSO Act.

10 A 'serious offence' is an offence that is specified in sch 1 div 1 of the HRSO Act, or is specified in sch 1 div 2 and is committed in circumstances indicated in relation to that offence in div 2.[6] Schedule 1 comprises a list of serious violent and sexual offences, the majority of which attract a maximum penalty of imprisonment of seven years or more.

11 The court, in considering whether it is satisfied of the matters in s 7(1), must have regard to the following matters listed in s 7(3) of the HRSO Act:

(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; and

(j) any other relevant matter.

12 The matters set out in pars (h) and (i) above are conclusions or findings based on s 7(3)(a) ‑ (g) and (j) of the HRSO Act.

13 In considering whether it is satisfied as required by s 7(1), the court must disregard the possibility that the respondent might temporarily be prevented from committing a serious offence by imprisonment, remand in custody, or the imposition of bail conditions.[7]

14 Section 48(1) of the HRSO Act provides that if the court hearing a restriction order application finds that the offender is a high risk serious offender, the court must make in relation to the offender a continuing detention order, or a supervision order (except as provided in s 29). 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.[8]

15 The powers conferred by the HRSO Act, like the now‑repealed Dangerous Sexual Offenders Act 2006 (WA) (DSO Act), are not to be exercised for the purpose of imposing additional punishment on the offender, but rather for the ultimate purpose of protecting the community.[9] This requires the court to choose the order that is the least invasive or destructive of the offender's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community.[10] The requirement in s 48(2) of the HRSO Act does not exclude other considerations.[11]

16 The HRSO Act, like the DSO Act, does not require that there be no risk of reoffending; rather, the issue is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community.[12] The use of the word 'adequate' indicates that a qualitative assessment is required. It cannot simply be assumed that the most assured preventative measure is detention and, therefore, the protection of the community will always favour such an order.[13]

17 Section 29 of the HRSO Act limits a court's power to make a 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.

18 Section 7(1) of the HRSO Act was considered by Corboy J in The State of Western Australia v Garlett [2021] WASC 387. His Honour preferred an interpretation of the section (read with s 48) that requires that the court assess two separate matters.[14] First, whether a risk that an offender will commit a serious offence is unacceptable; and secondly, if the risk is found to be unacceptable, whether it is necessary to make a restriction order to ensure adequate community protection against a risk that the offender will commit a serious offence.

19 That is, s 7(1) involves two evaluative judgments, and 'necessity' and 'adequacy' involve evaluative assessments.

20 The word 'unacceptable' might carry a meaning similar to that suggested by French CJ in Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38, that is, a risk that is not trivial or transient.[15] Further, the factors identified by Wheeler JA in Director of Public Prosecutions (WA) v Williams, and Buss JA in Italiano v The State of Western Australia [2009] WASCA 116, and the balancing exercise to which their Honours referred, would be most relevant to the determination of whether it was necessary to make a restriction order to adequately protect the community.[16]

21 I have applied Corboy J's preferred construction of s 7(1). In so doing, I took into account the factors identified by Wheeler JA, and applied the balancing exercise to which Wheeler JA and Buss JA referred. I adopt the passages reproduced in the reasons of Corboy J in The State of Western Australia v Garlett at [128] to [132], as if reproduced here in full.

22 I have proceeded on the basis that these separate matters need to be demonstrated 'by acceptable and cogent evidence and to a high degree of probability'.[17] The expression 'high degree of probability' connotes a standard that is more than the civil standard but less than the criminal standard of proof.[18]

23 The effect of this distinction, as Corboy J observed in The State of Western Australia v 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.[19] As to such possibility, Quinlan CJ observed:[20]

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').

24 As Corboy J observed in The State of Western Australia v Garlett, 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).[21]

25 At the hearing of this application, I received into evidence a book of materials in three volumes. The first was dated 15 March 2022 and the second and third were both dated 3 May 2022.[22]

26 The first volume contained a copy of the respondent's criminal record in Western Australia, New South Wales and Queensland; a summary of offences committed by the respondent in Thailand; a chronology of offending by the respondent in the period 2007 to 2017 prepared by the State Solicitor's Office; various Department of Justice prison records; documents which concern the respondent's offending history for offences defined as 'serious offences' under the HRSO Act; documents which concern the respondent's offending history for offences not defined as 'serious offences' under the HRSO Act, but that the State contended were relevant proceedings for the purpose of the State's application; and post-sentence reports and documents.

27 The second volume contained an updated report of the respondent's criminal record in Western Australia; a post sentence supervision order made on 17 November 2021 and associated report dated 9 November 2021; various Department of Justice prison records; copies of Thailand court documents; and documents which concern the respondent's offending history which were omitted from the first volume of the book of materials. The final document of the second volume, being the transcript of the respondent's interview with Ms Hasson undertaken for the purpose of preparing a report under s 74 of the HRSO Act, was not tendered.[23]

28 The third volume contained various reports prepared for the purpose of the restriction order hearing. A number of the documents incorporated in the third volume were not tendered. They were the transcript of the respondent's interview with Dr Wynn Owen undertaken for the purpose of preparing a report under s 74 of the HRSO Act; and various historical post-sentence reports and documents created between 2007 and 2012, as the documents were duplicates of reports tendered within volume 1.[24]

29 The State called four witnesses who gave evidence and were cross‑examined. They were as follows:

(a) Dr Wynn Owen, a consultant forensic psychiatrist and author of the psychiatric report dated 1 May 2022;

(b) Ms Hasson, a consultant forensic psychologist and author of the psychological report dated 7 April 2022;

(c) Ms Cashmore, a senior community corrections officer within the Community Offender Monitoring Unit of the Department of Justice. Ms Cashmore was the author of and one of three signatories to the community supervision assessment dated 27 April 2022 and updated community supervision assessment dated 17 May 2022; and

(d) Ms Collyer, a senior counselling psychologist employed by the Department of Justice and author of the proposed management plan dated 2 May 2022.

30 In addition to the book of materials, the State tendered into evidence:

(a) a parole refusal notice dated 7 December 2020;

(b) an email communication from Dr Wynn Owen to Mr Meertens, counsel for the State, sent on 11 May 2022; and

(c) the updated community supervision assessment report prepared by Ms Cashmore dated 17 May 2022.[25]

31 Counsel for the State also relied upon the written outline of submissions filed on 16 May 2022.

32 No objection was taken to the evidence sought to be tendered on behalf of the State. Counsel for the respondent instead submitted that the court should be cognisant of the weight to be given to some of the documents, such as prison incident reports and records of offences committed by the respondent as a juvenile.[26]

33 The respondent elected not to give evidence.[27] Counsel for the respondent relied upon the written outline of submissions filed on 19 May 2022.

34 During the course of her evidence, Ms Cashmore referred to a document of the Department of Justice that she understood had been provided to Dr Wynn Owen and Ms Hasson before the preparation of their reports.[28] She explained that the document listed conditions that might be included in a suppression order, which was used as a basis for Ms Cashmore's discussion with the experts as to the conditions which might be appropriate for the respondent, and the formulation of the proposed supervision order conditions set out in the community supervision assessment. The undisclosed document had not been included in the book of materials and the State was not able to produce the same before the conclusion of the sitting day. Indeed, there was no disclosure by the State of any of the documents by which the State's witnesses were engaged or instructed. An indication of the documents provided to the witnesses concerning the respondent could only be discerned from the summary of sources relied upon by the witnesses listed in their respective reports.

35 At the conclusion of the hearing, I ordered that the undisclosed document in the possession of the Department of Justice be produced to the applicant's representative and provided to the court and respondent by 4pm on 25 May 2022. Orders were also made programming the filing of any written submissions by the parties regarding the document.

36 On 25 May 2022, a document titled 'All of the Adult and child and violent conditions', was produced to the court by the Department of Justice.[29] No party elected to make submissions in relation to the same, nor objected to its tender.

37 I now turn to the matters relevant to determining whether or not the respondent is a high risk serious offender pursuant to s 7 of the HRSO Act.

38 In deciding whether a person is a high risk serious offender, the court must have regard to the person's antecedents and criminal record. That requires that all prior offences be considered, to the extent that such offences are relevant to the question of whether the person is a high risk serious offender within the meaning of the HRSO Act (whether they be serious offences or not). It also requires consideration of the person's antecedents, including the context in which the past offences were committed.[30]

39 The criminal record and antecedents are relevant in and of themselves, but are also relevant to whether the person has a propensity to commit serious offences in the future. The criminal record and antecedents are also relevant as to whether there is any pattern of offending behaviour.[31] It is therefore convenient to first consider the respondent's criminal record and antecedents as required by s 7(3)(g).

40 The respondent is a 62-year-old man. He was born and raised predominantly in New South Wales and moved to Queensland at age 15. His biological father never played a role in his life, and he was raised by his mother and stepfather. The respondent reported to Ms Hasson that he had had a good attachment to his mother and shared a solid bond with his stepfather who treated him as his own. When he was approximately nine years of age, the respondent's mother and stepfather separated. His stepfather remarried three times and had two sons, whom the respondent refers to as his half-brothers. Both of his parents are now deceased, and the respondent is estranged from all family.

41 The respondent reported to Ms Hasson that he was often bored at school and as such he frequently presented a challenge to teachers, impairing his relationships with them.[32] The respondent reported that he was expelled from school by the time he was 14.

42 The respondent is single and has no children. He reported to Ms Hasson that he has had one significant intimate relationship of 18 months' duration when he was 17.[33] The respondent reported to Dr Wynn Owen that his one significant intimate relationship occurred when he was eight and was with a classmate.[34] The respondent reported to both Dr Wynn Owen and Ms Hasson that he was sexually assaulted by a police officer when he was 10 years old.[35]

43 The respondent has lived outside of Western Australia for much of his life and has spent extensive time in prison. He has no friends or acquaintances within the community from whom he can obtain support. This appears to be a recurring theme in the respondent's life, recorded in historic psychological reports prepared for the purposes of the respondent's prior court hearings.[36]

44 The respondent has convictions in both Queensland and New South Wales dating back to 1974, most of which relate to stealing and burglary and for which the respondent was sentenced to terms of juvenile detention, and to terms of imprisonment as an adult in 1979 and 1982.[37] There are no convictions of a sexual nature in those jurisdictions.

45 In terms of employment, the respondent reported to Ms Hasson that he has had difficulty in maintaining employment for periods longer than six months as he often became bored.[38] Since returning to Western Australia in 2008, he struggled to gain and/or maintain employment, which he attributed to 'negative media attention and government oversight of his freedom'.[39] During his current term of imprisonment, the respondent has been employed and it is reported that he is a reliable worker who requires minimal supervision.[40] The respondent does not have employment to commence upon his release and will be reliant on Centrelink payments.[41]

46 The respondent has limited formal education. As noted above, he did not complete high school. The respondent reported that he has undertaken and/or completed studies to degree level in managerial psychology and forms of economics.[42] At his interview with Dr Wynn Owen, the respondent reported having attended university to commence studies for approximately five months, however Dr Wynn Owen questioned the veracity of the respondent's report in this regard.[43]

47 While the respondent admitted to trying cannabis, LSD and heroin in his youth,[44] the respondent does not have a history of substance abuse, nor was substance abuse a factor in his past offending.[45]

Criminal record - serious offences and other relevant offences

48 The respondent has spent approximately 31 years of his life incarcerated for various criminal offences. For the purpose of the hearing of the restriction order application, the State prepared a chronology of the respondent's offending committed within Western Australia which falls within the meaning of a serious offence under the HRSO Act, and other offences committed within Western Australia that the State submitted were relevant offences. The chronology included the date and nature of each offence; a high level summary of the material facts for each offence; the date of outcome; and the sentence imposed. I understood that the respondent took no issue with the State's characterisation of the offences as 'serious offences', nor with the accuracy of the facts summarised in the chronology.[46]

49 The State also submitted that the offences for which the respondent was convicted as a juvenile and as a young adult in New South Wales and Queensland were relevant offences.[47] In this regard I note that in 1974 the respondent was dealt with at the age of 14 by the Children's Court in New South Wales and given probation for many counts of burglary and stealing. He was committed to a boys' training school. The respondent was first sentenced to imprisonment in 1979 when convicted of a large number of stealing offences and a burglary offence. Later that same year the District Court of New South Wales sentenced the respondent to a total of five and a half years' imprisonment with a non-parole period to expire in 1982 for offences of burglary and stealing motor vehicles. Upon the respondent's release from prison he went to Queensland where in September 1982 he was convicted of stealing and unlawful use of a motor vehicle. He received prison terms for those offences.

50 The respondent admitted his criminal history.[48]

51 I understand that after the respondent's release from prison in Queensland, he travelled extensively in the South Pacific and Asia regions. He then travelled to Thailand.[49]

52 On 30 December 1994, the respondent was sentenced to two and a half years' imprisonment for possession of pornography and possession of an offensive weapon. On 3 June 1996, he was sentenced to one year imprisonment, which was reduced to eight months after a successful appeal, for possession of pornography. These convictions concerned possession of pornography which involved child exploitation materials. Therefore, they are 'serious offences' for the purpose of the HRSO Act as the respondent's acts would have constituted serious offences if they had occurred in Western Australia (namely, possession of child exploitation materials contrary to s 220 of the Criminal Code (WA), which is identified as a serious offence in item 5 of sch 1 div 1 subdiv 3 of the HRSO Act).[50]

53 On 16 June 1997, the respondent was sentenced to 35 years' imprisonment for having sexual intercourse with girls under 15 years of age on four occasions, and committing indecent acts on children under 15 years of age on four occasions. This sentence was reduced to 18 years as a result of a series of sentence adjustments and Royal amnesties, and the respondent was released from prison on 30 June 2006.[51]

54 These offences are also 'serious offences' for the purpose of the HRSO Act as the respondent's acts would have constituted serious offences if they had occurred in Western Australia. As the age of the children was not stated in the Thailand court documents, the respondent's acts were either a sexual offence against a child under 13 (s 320 of the Criminal Code (WA)), or a sexual offence against a child of or over 13 and under 16 (s 321 of the Criminal Code (WA)), which are identified as serious offences in items 16 and 17 of sch 1 div 1 subdiv 3 of the HRSO Act.[52]

55 On 31 May 2007, the respondent attended a cinema complex and had in his possession a computer thumb drive containing child exploitation material. Following the film, cleaning staff located the thumb drive left behind by the respondent and upon examination, cinema staff notified police and the thumb drive was seized. The thumb drive was analysed by police and found to contain a total of 818 child abuse images. On 7 June 2007, the respondent returned to the cinema to retrieve his thumb drive at which time he was arrested by police and a search of his residence resulted in the seizure of several compact discs containing 11 child abuse images.[53] The respondent was charged with possession of child pornography and sentenced to 12 months' imprisonment, conditionally suspended for 12 months.[54]

56 On 5 February 2008, the respondent attended an internet cafe where he browsed pornographic websites. A member of the public, who saw the respondent looking at the images contacted police and upon their arrival to the cafe, police witnessed pornographic images on the respondent's computer screen. A thumb drive belonging to the respondent was seized and analysis of the contents revealed approximately 60 images depicting female children aged between six months and 14 years of age.[55] Of the 60 images, six were the subject of the indictment.[56] The respondent was convicted of the offence of possession of child pornography and ultimately sentenced to a total of 15 months' imprisonment.[57]

57 On 27 August 2010, the respondent was convicted of eight counts of being in possession of child pornography in the form of digital images stored on several storage devices.[58] The respondent was sentenced to a total of 34 months' imprisonment.[59]

58 The convictions described in [56] and [57] were convictions for possession of child pornography contrary to s 60(4) of the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA), now a repealed provision. The respondent's acts that constituted an offence under the repealed provision would now constitute an offence under s 220 of the Criminal Code (WA), the offence of being in possession of child exploitation materials. By operation of s 5(2) of the HRSO Act, an offence under the now repealed s 60(4) constitutes a 'serious offences' for the purpose of the HRSO Act as the respondent's acts that constituted an offence under the repealed provision would constitute a serious offence specified in sch 1 div 1 (namely, possession of child exploitation materials contrary to s 220 of the Criminal Code (WA)).

59 Dr Wynn Owen noted that the respondent expressed no victim empathy or remorse in relation to these offences.[60]

60 On 8 August 2012, the respondent committed an aggravated armed assault with intent to rob.[61] The circumstances of the offence were that the respondent was in Mount Lawley, near the Mercy Hospital. The victim was walking to her car, which was parked in a carpark on the roadside. The victim unlocked the vehicle and placed her 11-month-old baby into a child seat in the centre of the back seat, she then placed a pram in the boot before getting into the driver's seat and preparing to drive away. At that point, the respondent opened the rear passenger door and climbed in. He reached over the baby seat and placed an arm around the driver's seat headrest and the victim's throat to restrain her. The respondent was holding a knife. The victim fought back and managed to wrench the knife from the respondent and throw it away. The respondent ran from the scene. As a consequence of the assault, the victim received cuts to her fingers. The respondent pled guilty and was sentenced to five years' imprisonment.[62]

61 Item 35 of sch 1 div 1 subdiv 3 of the HRSO Act specifies that assault with intent to rob (s 393 of the Criminal Code (WA)) is a 'serious offence' for the purpose of the HRSO Act.[63]

62 Dr Wynn Owen discussed this offending with the respondent during their interview and noted that the respondent stated that at the time of the offence he was desperate. He had no money and had unstable accommodation.[64] The respondent expressed remorse and victim empathy in relation to this offence.[65]

Accessing child pornography material using a carriage service - index offending

63 The respondent was released from prison on 6 August 2017 and moved to a backpackers' accommodation.[66] Two days after his release, the respondent attended a different backpackers' location that had internet access, where he spent approximately 4.5 hours on the internet. During that time, he accessed child pornography material depicting children between the ages of 2 and 16 years. On 12 August 2017, the respondent returned to the same location and spent approximately six hours on the internet. The material accessed included over 700 images of child pornography. The respondent was convicted of two counts of using a carriage service to access child pornography material contrary to s 474.19 of the Criminal Code (Cth) and was sentenced to a total effective term of four years and four months imprisonment, backdated to 17 August 2017.[67]

64 These were 'serious offences' for the purpose of the HRSO Act as the respondent was convicted of offences against the law of the Commonwealth of a sexual nature with a penalty of seven years or more, and which was prescribed to be a serious offence.[68]

65 As to the respondent's attitude, Dr Wynn Owen noted that the respondent stated in interview that he could not control his urge to seek child images; and expressed no remorse or victim empathy in relation to this offending.[69] Dr Wynn Owen further recorded that the respondent stated that 'looking and searching' was the appeal, not sexual arousal to the images themselves, and that the respondent appeared to minimise his offending behaviour.[70]

66 The respondent has three convictions for possession of weapons. First, on 15 May 2009, the respondent was searched by police and had in his possession a black plastic replica pistol.[71] The respondent was sentenced to a fine of $300 and the weapon was ordered to be destroyed. Secondly, on 9 June 2009, while attending a courthouse, the accused had in his possession a foldout knife and a black plastic replica pistol.[72] The respondent was sentenced to a fine of $400 and the weapons were ordered to be destroyed. Thirdly, on 6 July 2012, the respondent was at an internet cafe and got into a fight with another patron (who was known to the respondent). As the respondent was leaving the building, the patron followed the respondent and took hold of his shoulder. The respondent took out a pocketknife with the blade drawn and pointed it in the direction of the patron.[73] The respondent was sentenced to two months' imprisonment.

67 The State contends that these offences are 'relevant proceedings' for the purposes of s 84(5) of the HRSO Act. The State also submitted that the offences for which the respondent was convicted as a juvenile and as a young adult in New South Wales and Queensland offences are 'relevant proceedings' for the purposes of s 84(5) of the HRSO Act.

68 At the hearing of the application, counsel for the respondent confirmed that the respondent took no issue with the State's characterisation of these other offences as 'relevant' for the purposes of s 84(5) of the HRSO Act, save as to weight.[74] This concession was correctly made, and I consider that these proceedings are relevant to the restriction order application, albeit I place less weight on the juvenile offending.

69 In his current term of imprisonment, the respondent has incurred two prison charges.[75] The details of these two charges are as follows. First, on 9 April 2020, the respondent committed an act of misconduct by being in possession of two makeshift tools. For this charge, the respondent was given a loss of gratuities for 12 days (suspended for 60 days). The second charge arose on 10 October 2019, when the respondent assaulted another prisoner. The respondent was punished by a loss of gratuities for 14 days. According to prison records, in addition to the two formal charges, the respondent was involved in five incidents, the most serious of which involved the respondent behaving in a threatening manner to another prisoner on 23 August 2019.[76]

70 Counsel on behalf of the respondent submitted that the respondent's charges during his current term of imprisonment are not relevant to the disposition of this application.[77] I consider that none of the charges or incidents ought to weigh heavily in the balance in the determination of the restriction order application. However, I am satisfied that the reports of these incidents are sufficiently cogent to be borne in the balance, and reveal that while in prison the respondent has engaged in some acts of violence.

71 In terms of his general behaviour in prison, the Department of Justice prison reports also record that the respondent 'follows block rules and regulations, seems to be functioning well in the prison environment and maintains his cell and personal hygiene to an acceptable standard'.[78] I have also borne this positive report of prison behaviour in the balance.

72 According to Departmental records, during a previous term of imprisonment, the respondent was found to be in possession of documents on his computer including clip art images of young girls posing, a list of phone numbers for sex workers and a list of over 130 pornography sites, including some relating to children. Further, he had a list of counties with comments next to them such as 'no police ‑ anything goes here'. It was reported that he had been found in possession of other sexually inappropriate material including images of children, drug paraphernalia and weapons.[79]

73 Counsel on behalf of the State submitted that these incidents were relevant to the disposition of the restriction order hearing.[80] It was the respondent's submission that these incidents were of marginal relevance, if at all, due to the length of time since they occurred.[81] The State did not produce evidence as to the particulars of these incidents. In the absence of further evidence, I did not consider the records of the incidents to be sufficiently acceptable or cogent and I do not weigh these incidents in the balance.

74 The respondent's previous response to supervision has been poor, which was acknowledged on behalf of the respondent.[82] On 15 January 2008, the respondent became subject to a conditional suspended imprisonment order, which was shortly thereafter cancelled, as the respondent reoffended by accessing child exploitation materials at an internet cafe on 5 February 2008.

75 I understand the respondent to be a reportable offender under the Community Protection (Offender Reporting) Act 2004 (WA) as part of the Australian National Child Offender Registry (ANCOR) in relation to his offences committed in Thailand. The respondent's serious offences since that time were committed while he was subject to the obligations under that Act.

76 The respondent's poor response to supervision in the past is a matter which weighs against the court being satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of a supervision order, if made.

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

77 The word 'propensity' is taken to have its ordinary meaning in the context of the criminal law, that is, to have an inclination or tendency to do something.[83] In Director of Public Prosecutions (WA) v GTR [178], in the context of an application made under the DSO Act, Murray AJA stated that:

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

78 The State submitted that the respondent has a propensity to commit serious offences in the future. In support of the same, the State referred to the respondent's 13 convictions of serious offences relating to possession of child exploitation material, and/or the use of the internet to access child pornography.[84] As to the nature of the respondent's offending, the State acknowledged that one of the respondent's convictions was for aggravated armed assault with intent to rob, which is not of a similar nature to most of his serious offending. Further, the State did not make reference to the respondent's convictions for serious offences in Thailand in support of the submission of the respondent's propensity.

79 The State submitted that the respondent has a sexual interest in children and an arousal pattern in response to the use of child exploitation material. The State referenced the statements that the respondent made to psychologists and others who have assessed him, having expressed strong beliefs supportive of sexual contact with children, and his attempts to impress this conduct as normal and positive behaviour. The State submitted that the respondent tended to also minimise, justify and fail to acknowledge wrongdoing in relation to his sexual offending.

80 It was the State's position that the respondent's offending history indicates that he has a tendency to commit serious offences, relating to possession of child exploitation materials or viewing such material on the internet, as well as serious sexual 'contact' offences against children. This tendency is an identifiable characteristic of the respondent which appears to be in his make up or personality, for which he is unapologetic and lacks remorse. The State submitted that, accordingly, the respondent satisfies the definition of 'propensity' as described by Murray AJA.

81 Counsel for the respondent did not expressly address the matter of the respondent's propensity to commit serious offences in the future. However, as to the character of his offending, counsel noted that the respondent's Australian convictions concerned access to child exploitation materials, not sexual 'contact' offences. Further, the respondent's 2012 conviction for assault with intent to rob, while serious, was the only conviction of a violent nature since the respondent was a young adult. While this distinction was noted, no attempt was made on behalf of the respondent to minimalise or excuse what was accepted to be 'deplorable behaviour' on his part.[85]

82 The respondent has a significant history of offending against children and was diagnosed by Dr Wynn Owen with Paedophilic Disorder, non-exclusive type (that is, he is sexually attracted to both male and female children). The evidence also reveals that the respondent has a long held strong belief that sexual contact with children is a positive experience for the child, and sexual contact with children is as a natural behaviour.[86]

83 The convictions and diagnosis readily permit the inference to be made that the respondent has a tendency to commit sexual offences against children, particularly young females, both by accessing child exploitation material and by 'contact' offending.

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

84 The State submitted that a 'pattern', as it pertains to behaviour, is a recurrent way of acting by an individual or group towards a given object or in a given situation.[87]

85 The State noted that the respondent has convictions within Western Australia for having accessed child pornography on a computer in an internet cafe or backpackers hostel on three occasions. Counsel for the State submitted that there is a pattern to the respondent's offending, which is a recurrent way of accessing child exploitation material, either in private or public places. The State further relied upon the offences committed in Thailand, and submitted that these offences demonstrate a recurrent way of acting towards children. That is, engaging in sexual acts with children.

86 At the hearing of the application the respondent did not seek to challenge the characterisation of his prior offending, which included his convictions in Thailand.[88] Counsel accepted that the respondent's behaviour pattern was to use computers to access pornography/child exploitation materials, which had occurred on three occasions. While acknowledging the seriousness of the respondent's convictions in Thailand, counsel for the respondent submitted that his criminal record did not reveal a pattern of sexual offending (that is, 'contact' offending) against children.

87 I understood it to be common ground that the respondent's criminal history reveals a pattern of offending by accessing child exploitation material.

88 While the respondent has not been convicted of having committed a sexual offence against a child under 13 (s 320 of the Criminal Code (WA)), or a sexual offence against a child of or over 13 and under 16 (s 321 of the Criminal Code (WA)) in Western Australia, he was convicted and imprisoned in Thailand for having sexual intercourse with girls under 15 years of age on four occasions, and committing indecent acts on children under 15 years of age on four occasions. Albeit not recent, this conduct reveals a pattern of sexual offending against children.

89 With respect to the respondent's violent offending, counsel for the parties accepted that the respondent's aggravated armed assault with intent to rob appeared to be a 'one-off' offence and consequently, it cannot be said that there is a pattern of offending for like offences.[89] I am of the same opinion, and do not consider that the respondent's history reveals a pattern of violent offending behaviour.

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

90 I must consider if the respondent has made any efforts to address the cause or causes of his offending behaviour, including by participating in any rehabilitation programs, and whether or not such participation has had a positive effect. The respondent has participated in two rehabilitation programs while incarcerated, with very little positive effect.

91 While in prison in 2008, the respondent declined to participate in the Sex Offender Treatment Program. In the program participation waiver, the respondent claimed that the length of the program at the late stage of his sentence would 'negate [his] eligibility for parole and so would cause undue suffering that the sentencing judge did not intend'.[90]

92 Between 15 September and 10 December 2014, the respondent engaged in and completed the Think First Cognitive Skills Program, having attended 29 of the 30 sessions. The completion report recorded that the respondent 'was able to grasp the majority of the concepts, however his application in terms of offence related issues was limited as he tended to discuss most of the concepts in a more general sense'.[91]

93 On 9 March 2015, the respondent commenced the Intensive Sex Offender Treatment Program. Among other things, the completion report recorded that:[92]

(a) the respondent's 'readiness and motivation to engage was questionable' and his level of engagement was suggestive of being in the 'pre-contemplative stage of change';

(b) the respondent presented as hostile and oppositional and appeared to use the program to express his grievances with the Australian government and society which he seemed fixated on;

(c) during the program, the respondent frequently expressed strong beliefs supportive of sexual contact with children/offending attempting to impress this as providing a positive experience and portraying this as a natural behaviour;

(d) throughout treatment, the respondent showed lack of insight into his deviant sexual behaviour, lacked motivation for change and presented with problematic personality disorder/structure; and

(e) at the conclusion of the program, the respondent continued to present with significant outstanding treatment needs.

94 During his most current period of incarceration, the respondent has not completed any programs to address his risk of reoffending.

95 In his report, Dr Wynn Owen observed that the respondent has fixed attitudes supporting child sexual abuse and had been 'rejecting of treatment'.[93] However, in cross-examination, Dr Wynn Owen accepted that the programs undertaken by the respondent to date have been group based, and in his expert opinion, the respondent is not a suitable candidate for group therapy.[94]

96 Dr Wynn Owen opined that the type of therapeutic intervention likely to assist the respondent was an individual 'psychotherapeutic approach over the long term' which 'addresses facets of his personality'.[95] Dr Wynn Owen explained that occasionally a prisoner will be offered individual intervention, but he believed access to such intervention to be rare and accepted that it had not been offered to the respondent.[96]

97 In Ms Hasson's opinion, numerous treatment needs of the respondent remain outstanding. Ms Hasson opined that the respondent requires assistance to manage his deviant sexual interests, persecutory belief system, emotional regulation, distress tolerance, coping, problem solving, conflict resolution, and communication skills including assertiveness and the expression and inhibition of angry and aggressive impulses.[97]

98 As to the treatment that the respondent had received whilst incarcerated, Ms Hasson also expressed the view that the respondent was 'not suitable for a group based program'.[98] She opined that the only treatment option for the respondent was long term individual treatment, preferably from an experienced practitioner, either a forensic psychologist or a practitioner with extensive forensic experience.[99]

99 I accept that the respondent has many significant outstanding treatment needs, particularly in relation to his deviant sexual interests. While the respondent made some effort to address his offending behaviour by engaging in two group programs while incarcerated, they were group programs not suited to addressing his offending behaviour.

Expert reports and extent to which the respondent cooperated with examinations - s 7(3)(a)

100 Dr Wynn Owen and Ms Hasson each examined the respondent and prepared independent reports as required by s 74(1) of the HRSO Act.

101 Section 74(2) of the HRSO Act required that the reports prepared by Dr Wynn Owen and Ms Hasson indicate their respective assessment of the level of risk that, without a restriction order, the respondent will commit a serious offence; and the reasons for their assessment.

102 Section 74(3) of the HRSO Act required Dr Wynn Owen and Ms Hasson to have regard to any medical, psychiatric, prison or other relevant report or information relating to the respondent that is in the possession of the chief executive officer of the Department of Justice, or to which the chief executive officer has, or may be given, access, in preparing their reports.

103 I summarise below the evidence of each of the independent experts, which evidence I weighed in the balance as required by s 7(3)(a) of the HRSO Act.

104 Dr Wynn Owen is a medical practitioner registered with the Medical Board of Western Australia as a specialist (forensic psychiatrist). His statement of qualifications is set out in his report.[100] He is qualified to give the opinions expressed in his report and in the course of his evidence.

105 For the purposes of this proceeding, Dr Wynn Owen interviewed the respondent in person. He also spoke with Ms Cashmore. The documents to which Dr Wynn Owen had regard are identified at par 7 of his report.

106 As to the extent to which the respondent cooperated with the examination, Dr Wynn Owen recorded that he was cooperative with the interview process.[101]

History of offending and attitudes towards past serious offending

107 Dr Wynn Owen provided a summary of the respondent's serious offences and relevant offences which is consistent with the summary of the same at [51] - [65] above.

108 Dr Wynn Owen recorded in his report the respondent's current description and attitudes towards his past offending within Western Australia.[102] Save for the offence committed on 8 August 2012 of aggravated armed assault with intent to rob, the respondent expressed no remorse or victim empathy in relation to his offending.

109 Dr Wynn Owen provided a comprehensive summary of the respondent's medical and psychiatric history.[103] The account of the respondent's psychiatric history reveals that he had been diagnosed with a Cluster B Personality Disorder, and psychopathic traits; and that the respondent had self-reported and sought medical intervention on several occasions.

110 Dr Wynn Owen recorded that in 2014, the respondent asked to see the psychiatrist and is reported to have been 'seeking a specialist opinion on whether his offending is due to mental illness'. On assessment by the psychiatrist no mental illness was diagnosed and no psychiatric follow up was planned.[104] Following a further self-referral seeking 'an in depth assessment', the respondent was advised that long term counselling may help. Dr Wynn Owen noted that the psychiatrist had recorded 'No acute mental disorder detected. Underlying problems of personality structure, coping, sexual preferences'.[105] The respondent again self referred in 2019, 2020 and 2022. On the last occasion, the respondent was not assessed as being acutely unwell or at risk, and therefore did not meet the criteria for psychiatric review at that time.[106]

111 Dr Wynn Owen noted that the respondent does not have a history of substance abuse, and that illicit substances were not a factor in his past offending.[107]

112 Dr Wynn Owen summarised the respondent's personal and family history, school/educational history, occupational history and sexual development. The summary was substantively consistent with the evidence outlined at [41] - [46] above.

113 Dr Wynn Owen summarised the respondent's prison behaviour. The summary was consistent with the evidence summarised at [69] and [71] ‑ [72] above.

114 Dr Wynn Owen drew the court's attention to psychological assessments undertaken for the purposes of previous court hearings and sentencing. The summary of the reports was consistent with the evidence discussed at [204] ‑ [208] below.

115 Dr Wynn Owen summarised the respondent's past treatment programs. The summary was consistent with the evidence outlined at [90] ‑ [93] above.

116 The respondent reported to Dr Wynn Owen that if released he planned to spend his time alone at home. Dr Wynn Owen recorded that the respondent was 'clear that his preference was to be in a remote location with minimal contact with anyone, but he realised that this was unlikely'.[108] The respondent also reported that he did not intend to seek employment.

117 The respondent told Dr Wynn Owen that he intended to avoid the internet because he may be tempted to browse child images and said that he would understand and be compliant with a condition that restricted and/or prohibited internet access.[109] Dr Wynn Owen noted that other than internet access, the respondent did not articulate any plans to manage risk or identify high risk situations, but indicated that he would comply with order conditions.[110]

118 In his report, Dr Wynn Owen noted that at the time of their interview, the respondent did not have confirmed accommodation. In his evidence, Dr Wynn Owen did not comment about the appropriateness of proposed accommodation. He did however state that 'unless that is assisted and managed in some way that provides stable accommodation and supports, etcetera, the stress will be too much for him to manage'.[111]

119 Dr Wynn Owen reported that the respondent has indicators of a sexual preoccupation and a high libido, and recommended that he undergo anti‑libidinal therapy.[112] He explained that this medication would act as a chemical hormonal agent, with the effect of artificially reducing the respondent's level of testosterone.[113]

120 Dr Wynn Owen gave evidence to the effect that anti-libidinal medication would reduce the respondent's libido and deviant sexual thinking, and reduce his intrusive thoughts and sexual preoccupation. In combination, this would assist the respondent to engage with and focus on his psychological treatment.[114] Put another way, anti-libidinal therapy would be an adjunct to psychological intervention therapy.[115] Dr Wynn Owen's evidence was that in combination, these therapies would put the respondent in the trajectory of likely treatment effectiveness.

121 Dr Wynn Owen recorded that during the interview, the respondent raised the matter of treatment, but stated that he was 'seeking a memory wiping treatment', or a therapy similar to treatment used in the past to 'treat' homosexuality. While initially opposed to hormonal anti‑libidinal therapy, the respondent indicated that if the treatment were recommended, he would try it.[116] In his evidence, Dr Wynn Owen also noted that the respondent had felt that it was a good idea to undergo anti-libidinal treatment 'just to get it off the books'.[117] I understood this to mean that while the respondent was not optimistic as to effectiveness, he was not opposed to undergoing the treatment.

122 Dr Wynn Owen also noted the respondent's proposal to undergo physical castration, reported in the updated community supervision assessment. Dr Wynn Owen reported that he was not aware of anywhere in Western Australia or Australia where such treatment would be offered.[118]

123 Dr Wynn Owen used a diagnostic classification system, DSM‑V,[119] and diagnosed the respondent with paedophilic disorder (non-exclusive type), and antisocial personality disorder (with additional narcissistic and schizoid personality traits).[120]

124 Dr Wynn Owen explained that he had undertaken an evaluation of the respondent using the Psychopathy Checklist - Revised (PCL-R), a tool which determines whether a subject fits the construct of psychopathy. Dr Wynn Owen attributed a score of 29 to the respondent, which is within the range which indicates prototypical psychopathy. He further explained that the presence of psychopathy is significantly associated with an elevated risk of future sexual and violent offending if that individual has, like the respondent, committed such offences in the past.[121] Further, Dr Wynn Owen explained that psychopathy is associated with very poor treatment response, often in the face of apparent compliance; and is a very significant factor in terms of the respondent's risk of both future sexual offending and future violent offending.[122]

125 Dr Wynn Owen accepted that reoffending risk cannot be accurately predicted, but opined that the most reliable indicator of future behaviour is past behaviour, particularly if there is an established and enduring pattern of that behaviour. As to future risk, Dr Wynn Owen stated that future risk is:[123]

... modified by a range of factors including life experience, social and interpersonal context, personality, cognitive capacity and mental state, the opportunity given to address risk and the individual s response to this and the presence and impact of a range of dynamic variables. A Structured Professional Judgement (SPJ) approach to risk assessment, which has been demonstrated to be more a more accurate method of consideration of risk, takes into account static and historical risk factors using a combination of actuarial tools, structured assessment guides and clinical assessment. This approach has been demonstrated to be significantly more accurate than using one of static or combined static/dynamic risk tool.

126 The respondent was evaluated by Dr Wynn Owen using the Static‑99R (2016 Revision, updated 2021 recidivism estimates), which is an actuarial tool. Dr Wynn Owen explained that use of the Static‑99R actuarial tool is intended to position offenders in terms of their relative degree of risk for sexual recidivism based on commonly available demographic and criminal history information found to correlate with sexual recidivism in adult male sex offenders. The tool is concerned with historic rather than dynamic factors.[124] Dr Wynn Owen explained in his report that the Static‑99R has moderate accuracy in ranking offenders according to their relative risk for sexual recidivism and is widely accepted by the scientific community.

127 The respondent's Static-99R score was Level IVb, or the 'well above average risk' range. Dr Wynn Owen explained offenders released with the same score as the respondent, using the data from the 'high risk high needs' cohort, had an average five year sexual recidivism rate of 25.7%, with a range of between 21.5% and 30.3%. At 10 years, the predicted recidivism rate is 37.3%, and at 20 years is 44.5%.[125]

128 Dr Wynn Owen also suggested that the respondent's score be compared to the likelihood of an adult male with no history of sexual offending committing a sexual offence during his lifetime, which is less than 1%. He also noted that the future likelihood of any individual who has committed a prior sexual offence committing a new sexual offence within five years is between 5% and 15%. To be considered in context, Dr Wynn Owen explained that the respondent's average five year sexual recidivism rate of 25.7% under the Static-99 tool is considerably higher than an adult male with no history of sexual offending committing a sexual offence during his lifetime, or an individual who has committed a prior sexual offence.[126]

129 The respondent was also evaluated by Dr Wynn Owen using the Risk for Sexual Violence protocol (Hart, Kropp and Laws, 2003) structured clinical judgment framework. Dr Wynn Owen explained that the RSVP is a tool designed to identify static and dynamic risks for future sexual offending; to identify treatment needs; and to target and assist with the development of suitable monitoring and supervision parameters to address identified risk.[127]

130 In assessing the respondent against the structured clinical judgment framework, Dr Wynn Owen considered static and dynamic risk factors, including the respondent's sexual violence history, psychological adjustment, mental disorder, social adjustment and manageability. As part of the psychological assessment, Dr Wynn Owen recorded that a number of risk factors were present in the respondent, including chronicity and diversity of sexual violence; extreme minimisation of sexual violence; attitudes that support or condone sexual violence; problems of self awareness; problems with stress or coping; problems resulting from child abuse; sexual deviance; psychopathic personality disorder; non-sexual criminality; and problems with planning, treatment and supervision.

131 As to the respondent's attitude to sexual violence, Dr Wynn Owen noted that the respondent:[128]

[has made] statements about such things as believing that what we call paedophilia is, in fact, possibly quite a normal thing, much of the society doesn't agree with laws relating to the restriction of access to pornographic material about children or sexual contact with children, and much like homosexual relationships, this may be something which is legalised in the future. So he has got very firmly entrenched, deeply held attitudes that condone sexual contact with children.

132 As to the risk scenarios presented by the respondent, Dr Wynn Owen opined as follows:[129]

168. Nature

169. Repeat: This is the most likely scenario should an offence occur in future. In the ongoing context of persistent attitudes supportive of child abuse and inability/unwillingness to acknowledge sexual deviance [the respondent] will return to internet browsing for child exploitation.

170. Escalates: If [the respondent's] internet browsing for child exploitation material continues unchecked, reinforcing his sexual deviance, he may then escalate to contact or non-contact offending (as he openly acknowledges such sexual offending in the past). This is likely to be opportunistic offending against a stranger child who is isolated if in Australia, contact or non-contact offending could include photographs taken without consent escalating to sexual contact. If [the respondent] were in a country other than Australia offending may be associated with the child sex trade or opportunistic as above. Contact and non‑contact offending, should it occur is likely to parallel his offending in Thailand ie to include photographing naked children opportunistically through to penetrative sexual intercourse with a female child under 15 years, potentially as young as 8, possibly younger.

171. Escalates and changes: Noting that this is the least likely reoffence scenario. [The respondent] has collected many child exploitation images of male children and although he denies ever having any sexual interest in males this collecting behaviour belies his claims. An escalation and change could involve opportunistic sexual contact with or non-contact offending involving a male child.

172. Any contact or in person non-contact offending will have immediate and long term adverse psychological consequences for the victim.

173. Imminence

174. Based on [the respondent's] past pattern of offending in WA he could return to viewing child exploitation material within days of returning to the community and having opportunities for internet access. Depending on supervision and the duration of reinforcement of deviance this could escalate to contact offending.

133 Dr Wynn Owen evaluated the respondent using the Historical/Clinical and Risk Management 20, version 3 (HCR-20), which he explained is a violence risk assessment structured professional guideline.

134 Dr Wynn Owen reported that risk factors identified by assessing the respondent using the RSVP are also factors that are associated with an increased risk of violent offending. These risks include a history of problems with antisocial behaviour; relationships; traumatic experiences; and treatment or supervision response.[130]

135 Dr Wynn Owen noted that the respondent's history of offending and the presence of high level of psychopathy and entrenched antisocial and antiauthoritarian attitudes are significant factors in assessing future violent offending. Dr Wynn Owen noted that the respondent's serious violent offence occurred in a context where he was under chronic stress by reason of him being a sex offender, having to deal with restrictions and reporting requirements, coupled with instability of accommodation, financial constraint and an absence of social network or support. Dr Wynn Owen noted the importance of emotional and practical coping if the respondent is to avoid future crises. Further, in Dr Wynn Owen's opinion, the use of a weapon in the commission of his prior violent offence suggests that a weapon is likely to be involved in any future serious violent offending, and that any future serious violent offending would be opportunistic, with a goal of financial reward.[131]

136 Dr Wynn Owen also opined that the respondent's outstanding treatment needs in relation to violent offending are the same as his needs with respect to sexual offending, other than those relating to his sexual deviance.[132]

137 On the basis of his review of the materials, clinical assessment and application of risk assessment tools, Dr Wynn Owen opined that the respondent presents a high risk of committing a serious sexual offence, if not subject to some form of supervision on release.[133] He also opined that in his view, the respondent presents a high risk of future sexual offending if not subject to a restriction order.[134]

138 In his report, Dr Wynn Owen also noted that the respondent presents a moderate risk of future serious violent offending.[135] In this regard, Dr Wynn Owen explained as follows:[136]

I believe he has a moderate risk of committing a violent offence, and there are a number of contextual factors which are of relevance. There is the one instance of a serious offence, which occurred in 2012. He had been released from prison with relatively limited supports. He had experienced being recognised as a sex offender and some degrees of vigilantism. He felt - believed himself to be unsupported by the police and other agencies and was financially struggling. He has apparently made an impulsive and opportunistic decision to commit an offence, which he has been unable to self-manage that. However, there was a financial goal. The goal was, 'This person looks as if they have money. I need money. I'm going to go and do this now.' I believe it would require a repeat of that set of stressors. It's something that has happened once rather than multiple times, and this is why I believe there's only a moderate likelihood of that type of re-offence occurring.

139 Dr Wynn Owen emphasised the respondent's outstanding treatment needs in the areas of sexual deviance, coping, problem‑solving, emotional and behavioural self-management, self‑awareness and interpersonal relationships.[137]

140 When asked by counsel for the State whether the respondent's risk could be adequately managed in the community on a supervision order, Dr Wynn Owen stated:[138]

I believe that the supervision order as outlined will manage that risk to the extent that if high risk behaviours start to present, that they will be captured. And that certain conditions, if breached, it will be very obvious very quickly, such that he will not be able to visit places where he can access the internet, whether that's a café or a library. And if he does, he will be very, very quickly discovered and he will be reassessed, essentially. And that is - that is what the role of an order of this sort is. So I believe that prior to - prior to even committing a serious offence, that the supervision level that has been outlined would capture that risk.

141 Dr Wynn Owen further opined that in his view, the respondent's successful release would 'rely on significant external constraint'.[139]

142 Dr Wynn Owen concluded his report with four recommendations:[140]

(a) The respondent should, as soon as possible, commence individual psychological intervention to address his outstanding treatment needs. The respondent is unlikely to make treatment gains in a group setting, and his personality structure is likely to be a significant barrier to treatment. If the respondent is released to a supervision order, the treatment sessions should initially focus on risk management and recognition of high risk situations as well as seeking to assess the level of stress being experienced by the respondent.

(b) The respondent should be assessed for hormonal anti-libidinal therapy to facilitate psychological intervention, and this treatment should be implemented if there are no medical constraints and the respondent commences psychological intervention.

(c) If the respondent is released to a supervision order, the supervision order conditions should address high risk situations, in particular relating to internet access and unsupervised contact with children.

(d) If the respondent is released to a supervision order, the duration should be 8 - 10 years.

143 As to the duration of any supervision order, Dr Wynn Owen explained the basis for his opinion as follows:[141]

... Time spent offence free in the community is related - is associated with a reduced risk of future offending. ... A body of work has now been done and we're getting increasing data, including from the authors of Static-99 and others, that show that over certain increments of time, it can be clearly demonstrated that at a group level there is a very measurable reduction in the likelihood of offending over the next year five-year period. For somebody with the release - with the score that [the respondent] has, it will take around eight years for him to move into an average level of risk. Now, that doesn't take into account that he's a high-risk, high-need offender. I - this is why I mentioned eight to 10 years. And I believe that also the aging process will continue. There is a natural reduction in libido. I believe that the sexual interest is a significant component of his offending, in terms of the drive to seek these images. And that will naturally decline over that period. And whilst we're very aware that normally from the age of 60 that an individual's sex drive reduces dramatically and that's associated with an overall reduction and risk of sexual offending, with paedophile-type offenders, that tends to occur later and more gradually. And on those bases, I believe that an order of at least eight years is required.

144 Ms Hasson is a forensic psychologist registered with the Psychology Board of Australia. Her statement of qualifications is set out in her report.[142] She is qualified to give the opinions expressed in her report and in the course of her evidence.

145 Ms Hasson interviewed the respondent in person at Acacia Prison for approximately five hours across two interview sessions. Ms Hasson recorded that she reviewed the first volume of the book of materials and the affidavit of Mr Meertens affirmed 15 October 2021. A source of information for the preparation of her report included a conversation with Ms Cashmore.

146 As to the extent to which the respondent cooperated with the examination, Ms Hasson recorded that he was cooperative with the interview process and provided a significant amount of spontaneous information.[143]

Personal history, relationship history, social supports and future plans

147 Ms Hasson summarised the respondent's relevant personal history, relationship history, social supports and future plans. The summary was consistent with the evidence summarised at [41] - [46] above.

Sexual development, sexual interests and current sexual thinking

148 In her report, Ms Hasson recorded that the respondent disclosed a history of precocious sexual activity commencing at age seven. In addition to engaging in sexual activity with girls similar in age to him, the respondent reported as having been sexual with females who were much older, including his babysitter when he was around eight or nine and she was 16. During his interview with Ms Hasson, the respondent was steadfast in his belief that this was not a sexually abusive situation and he was not sexually exploited. The respondent did, however, report that he was sexually assaulted by a police officer when he was 10 years old.

149 Ms Hasson recorded that the respondent denied any claims that he is a paedophile, claiming to be 'attracted to females regardless of their age'. Ms Hasson further noted that the respondent has previously fully acknowledged his sexual interest in girls and use of child pornography for sexual stimulation.[144] The respondent acknowledged to Ms Hasson that he has an addiction to internet based pornography, which is something he does not have control over.

Substance use, health, mental health and psychological functioning

150 Ms Hasson's record of the respondent's history of substance abuse is consistent with the summary at [47] above. Ms Hasson also recorded that the respondent has no formal history of mental illness or self-harm behaviour.[145]

151 Ms Hasson provided a summary of the respondent's serious offences and relevant offences which is consistent with the summary of the same at [51] - [65] above. As to the respondent's insight into his offending, Ms Hasson noted as follows:[146]

Aside from the presence of deviant sexual interests, [the respondent's] offending behaviour demonstrates a broader pattern of antisociality in his cognitions, attitudes, values, beliefs and behaviours consistent with a diagnosis of antisocial personality disorder. At no time during discussion of [the respondent's] offences did he ever express any remorse or empathy for the victims of his sexual offences, primarily because he does not view them as victims. He did however express regret at the aggravated armed assault with intent to rob convictions acknowledging the woman would have been afraid and expressing the view that he recognises she would have suffered as a consequence of his actions. Apart from that instance however [the respondent] appears to be completely unaware of or indifferent to the impact his actions have had on others.

152 Ms Hasson also reported that the respondent had expressed the view during their interview that 'children are sexual beings, they are sexually knowing and interested in and enjoy sex'.[147]

153 Ms Hasson summarised the respondent's treatment intervention history. The summary was consistent with the evidence outlined at [90] ‑ [94] above.

154 Ms Hasson summarised the respondent's prison behaviour. The summary was consistent with the evidence discussed at [69], [71] ‑ [72] above.

155 Ms Hasson summarised the respondent's previous responses to community supervision, noting that it was unsuccessful.

156 Ms Hasson assessed the risk of reoffending posed by the respondent by the use of Structured Professional Judgment (SPJ) and actuarial measures, in combination with a forensic psychological assessment and formulation.[148] Ms Hasson used the same four tools used by Dr Wynn Owen to assess the respondent's risk of offending upon release: the Static-99R, the RSVP, the PCL-R and the HCR‑20 v3.

157 Ms Hasson provided an overview of the Static-99R risk assessment tool, which was consistent with the description provided by Dr Wynn Owen.

158 The respondent's Static-99R score based on Ms Hasson's testing was Level IVa, or at the 'above average risk' level of sexual recidivism.[149] She explained that in a sample of offenders released with the same score as the respondent, the sexual recidivism rate at the five‑year mark is 15.2%, and based on his score he is a high risk of reoffending.

159 Ms Hasson also assessed the respondent using the RSVP risk assessment tool. Her evidence as to the nature of the tool was consistent with that of Dr Wynn Owen.

160 As part of the psychological assessment, Ms Hasson recorded that, among other factors, sexual deviance and psychopathic personality disorder are present. Ms Hasson opined that considering the respondent's results in the RSVP and Static-99R risk assessment tools together, she considered that the respondent is a high risk of sexually reoffending if he did not have the benefit of supervision, support and monitoring.[150]

161 Ms Hasson assessed the respondent using the PCL-R, which she explained is a 20-item scale which uses both historical and dynamic data for the assessment of psychopathy in research, clinical, and forensic settings.[151] Ms Hasson further noted that there is extensive evidence for comparable reliability and validity of the PCL-R in a variety of clinical and forensic populations in different countries, including Australia, with the result that it is rapidly becoming the international standard for assessing psychopathy.

162 Ms Hasson reported that the respondent's PCL-R score was 30, which indicates that he fits within the construct of psychopathy (the cut-off score in Australia being 30).[152] She noted that the presence of high psychopathy traits is considered to be a robust correlate of future offending.

163 As to the risk scenarios involving sexual offending presented by the respondent, Ms Hasson opined as follows:[153]

Nature

131. Scenario 1 - The most likely scenario for future sexual offending would involve [the respondent] returning to the community and relapsing back into viewing child exploitation material either online or in hard copy.

132. Scenario 2 - In this scenario [the respondent] may sexually offend against a child by taking indecent photos of the child without consent. In such a scenario the child may be naked, partially clothed, posed or with an explicit emphasis of genital areas, or photographed engaging in sexual behaviour either alone or with another.

133. Scenario 3 - In this scenario [the respondent] may sexually offend against a child by engaging in the sexual assault of a female child. This sexual assault is likely to involve sexual penetration. The offence may be filmed. [The respondent] may entice the child to engage in such behaviour through some type of reward - financial, gift or other desired item. It is possible the victim could sustain injuries.

...

Imminence, Frequency and Duration

135. In the past [the respondent] has reoffended within a short period of time of having been released. Exclusion zones and GPS monitoring may act as external controls to inhibit behaviour allowing time for the development of relapse prevention skills however [the respondent] has acknowledged that viewing child exploitation material is something the has struggled to avoid in the past. Should the opportunity present itself for [the respondent] to access a computer or view such material, it is likely that in the immediate weeks and days following release he would find it difficult to resist. The imminence of him offending against a child with a contact offence is less than that for [child exploitation material] and it is possible there would be some warning signs present such as increased social or work opportunities or engaging in activities where children be present.

136. Sexual preoccupation, difficulty with sexual self-regulation and tolerant attitudes toward deviant sexual interests are all salient risk factors for sexual offences. Poor interpersonal boundaries and difficulties with responding to social cues are also relevant issues.

146. The frequency of sexual offending behaviour is likely to continue until such time as [the respondent] is caught. It is unlikely his offending would cease by his own volition.

Likelihood

147. It is possible that all scenarios are likely in the future if [the respondent] does not manage his risk as they closely parallel previous offending. [The respondent] is assessed as being a high risk of sexual reoffending.

164 The final tool used by Ms Hasson to assess the respondent was the HCR‑20 v3, which she explained is a set of structured professional guidelines to assess risk of violence.[154] The HCR‑20 v3 considers risk factors across three domains: 10 historical risk factors that reflect past adjustment (ie a person's history of violence and general psychosocial functioning); five clinical factors that reflect present adjustment (ie a person's current or recent functioning); and five risk management factors that reflect future adjustment or a person's anticipated functioning in light of their plans or goals.

165 Ms Hasson considered whether each of the risk factors were present in her assessment of the respondent, and if so, to what extent. I note in particular the observations made by Ms Hasson with respect to the 'treatment or supervision response' of the respondent:[155]

Treatment or Supervision Response - This item pertains to problems accessing, attending, being compliant with or benefitting from mental health forensic or correctional intervention or management strategies designed to reduce risk for recidivism or violence. It concerns an evaluators judgement of a person's most likely compliance and responsiveness in the future. This item is present given Mr Dragon has a history of breaching supervision conditions and for not undertaking or failing to benefit from programs to address offending. The most likely difficulties identified include that Mr Dragon may have problems observing any conditions of supervision, complying with rules of supervising agencies or engaging in behaviours counter to the aims of intervention, management and supervision and that there may be problems with him benefiting from, showing progress in or responding to supervision and management strategies in the future. Mr Dragon's antisocial and other personality factors are significant factors in how he is likely to respond to supervision and management. Interpersonal impediments to compliance such as his attitudes and beliefs and issues with treatment provider or supervisor may compromise compliance in the future. There may also be contextual impediments and these include future homelessness, lack of access to transport and financial difficulties.

166 Ms Hasson also noted that the respondent's personality played a contributory role in his offending behaviour and has interfered with rehabilitative efforts, placing him and others at risk of negative experiences, events and outcomes.[156]

167 Ms Hasson identified the risk scenarios of future violent offending presented by the respondent as follows:[157]

Nature

173. Scenario 1 - [the respondent] is likely to behave in an aggressive and violent manner toward an individual who has offended or affronted him in some manner. [The respondent] may be in possession of a weapon or he may use his own body (fists and legs, feet). This offence may occur in the community or in custody. Threats of harm and violence may occur in order to gain compliance from the victim. Should [the respondent] use violence and aggression it is likely that actual harm may be caused to the victim. His aggression is likely to be instrumental to make a point or to get his needs met.

174. Scenario 2 - In this scenario [the respondent] may be involved in an argument with an individual either known or unknown to him and during that argument he may become angry and physically assault the other individual. A perceived slight or some other negative event or wanting something from the victim that they are not prepared to give may be the trigger for [the respondent] to become irritable, angry and aggressive. Use of a weapon or his fists is seen possible. This type of offence is more likely to be an act of expressive violence and thereby driven by difficulties with emotional and behavioural regulation as well as perceptions and cognitions. This offence may occur in custody or the community.

175. Scenario 3 - In this scenario [the respondent] may seek to obtain a financial benefit through robbery. It is likely he will be armed with a knife. This offence will occur in the community. Whilst it may not be his intention to harm the victim, injuries may still occur due to the unpredictable and highly emotional nature of such a situation.

176. All scenarios have the potential to cause significant psychological or physical harm to the victims especially if there is a weapon present during the commission of any offending. In such a scenario there is a chance that the situation may escalate, resulting in the perpetration of serious or life-threatening violence.

Imminence, Frequency and Duration

177. [The respondent's] risk of reoffending is medium to high. [The respondent] has behaved aggressively in custody and in the community. He has demonstrated in the past he is prepared to use violence and aggression, including threats and actual violence to get his needs met. His use of violence is ego syntonic and he holds offence supportive beliefs regarding the use of violence. Similarly, he does not appear concerned by the possible consequences to himself when charged, convicted or sanctioned for such behaviour. Consequently, he will offend in such a manner until it no longer benefits him to do so. The presence of psychopathic, antisocial and antiauthority attitudes, cognitions and beliefs also increase the imminence of risk of future violence.

Likelihood

178. [The respondent] is assessed as being a medium to high risk of reoffending as described in the scenarios above. Unfortunately for [the respondent] he has not been eligible to undertake any programs or counselling to directly address his violent offending behaviour and therefore he has not had the opportunity to develop a relapse prevention plan or learn new skills and strategies to avoid reoffending or mitigate risk. He is not suitable for a group program and these treatment needs can best be met through individual treatment. To what extent [the respondent] may benefit from treatment however remains uncertain.

168 In her report, Ms Hasson analysed the respondent's offending behaviour. First, she provided a general overview of sexual deviation, noting that it provides a motivation for sexual violence.[158] Ms Hasson noted that sexual deviance can be defined as an interest, preference, arousal, or behaviour that involves a focus on persons or objects and may be manifested in fantasies, urges, or repeated acts of a sexually deviant nature. She also explained that sexual offending is a dynamic process involving cognitions and contextual cues that facilitate offending.

169 Ms Hasson opined that the respondent's offending behaviour is driven by a deviant sexual interest in children and offence supportive attitudes and beliefs. That is, his view that children are sexual beings, that they enjoy sex, are sexually knowledgeable, and are not caused harm by engaging in sexual activity with each other or adults.[159] He also maintains that others perpetuate the belief that children cannot consent to sex, and that it is harmful and that it is 'illegal'. The respondent expects that rules and laws relating to sex with children are likely to be decriminalised at some point in the future. During their interview the respondent likened these changes in the law to the abolishment of laws pertaining to homosexuality and more tolerance in the community toward individuals who prefer same sex relationships. He views paedophilia as a sexual orientation.

170 As to the respondent's previous convictions for accessing child exploitation material online, Ms Hasson considers the following points to be relevant.

(a) In the community the respondent is an isolated individual who has been celibate for many years due to being unable or unwilling to form attachments and relationships with others.

(b) Most if not all of his prior sexual experiences occurred may years ago. He maintains this is by choice.

(c) The internet provides the social, individual, and technological circumstances in which an interest in child pornography flourishes.

(d) Viewing images may also be a means of avoiding emotional closeness to others by meeting psychosexual needs through pictures.

(e) Viewing child exploitation material may also be a substitute for contact offending.

(f) During his interview with Ms Hasson, the respondent denied masturbating to the images of child exploitation he viewed and saved. He did however acknowledge a sexual interest in such material.

171 In relation to his most recent offences, Ms Hasson noted that the respondent spent several hours on two separate occasions on the internet.[160] The respondent acknowledged his difficulty controlling the drive or urge to view child exploitation material. He offended within two days of his release, suggesting that urgency to view such material was prominent. Ms Hasson noted that during their interview, the respondent spoke of the joy and pleasure associated with collecting child exploitation images, and collating and previously storing such material. On this most recent occasion the respondent maintained that he consciously chose not to save material and that his actions represented a change in his offending. Ms Hasson also noted however that the respondent had briefly left the internet café to purchase a thumb drive, which was in his possession when he was arrested. The respondent denied sharing images, communicating with others in chat rooms or attempting to contact children directly online.

172 Ms Hasson expressed the opinion that reduced recidivism is associated with high‑quality release plans that support accommodation, positive social connections, employment or hobbies, and prosocial, personally meaningful goals.[161] She opined that a gradual decline in risk is linked to an individual developing increasingly effective, prosocial ways of achieving a satisfying life. Ms Hasson noted, however, that there is little evidence to suggest that declining age has in anyway begun to impact on the respondent's deviant sexual interests, and he remains a high risk of contact and non-contact offending. She suggests that the latter is more likely to occur primarily due to opportunity and the nature and type of supervision and monitoring that would be in place should he be released to the community subject to a restriction order.

173 Ms Hasson also described the respondent's violent offending as on occasion instrumental in nature (ie a means to an end), and on occasions impulsive or expressive. She also noted the occasional presence of weapons and injuries suffered.

174 On the basis of her assessment, Ms Hasson expressed the view that the respondent presents as a high risk of serious reoffending, if not subject to a restriction order.[162] Ms Hasson particularly highlighted that the respondent has limited insight and understanding of internal and external risk triggers or cues to reoffending in a sexual or violent manner. She noted that the respondent does not have a relapse prevention plan nor has he developed or identified proven risk management strategies to moderate or mitigate risk. A number of factors have contributed to the respondent's offending the most relevant of which include deviant sexual interests, antisocial personality disorder, and a history of instability.

175 I note that Ms Hasson did not proffer the opinion that the risk posed by the respondent could not be managed in the community subject to a supervision order. Rather, she expressed the view that a structured and meaningful day will be an important risk management tool to limit boredom and opportunity to engage in risky behaviours such as seeking out access to the internet.[163] Ms Hasson further noted that employment would help provide the respondent a sense of well‑being, financial stability, also provide him an opportunity to meet new friends and develop supports other than professional ones. Engagement in community based leisure and hobbies would also serve a similar purpose.

176 Should the offender be subject to a continuing detention order, Ms Hasson offered the following recommendations:

(a) The respondent should engage with a psychologist as soon as possible to establish rapport and determine treatment readiness and to address or identify any treatment resistance or therapy interfering behaviours.

(b) Engagement with a psychologist will also allow a longer period of enquiry and assessment to determine the respondent's suitability to engage in treatment. The respondent's personality structure is a potential barrier to him being able to meaningfully engage in treatment and to benefit from intervention. His entrenched persecutory and offence supportive attitudes and beliefs are likely to be particularly resistant to change.

(c) Should the respondent demonstrate a capacity to meaningfully participate in counselling, individual treatment may be able to facilitate the exploration of his offending behaviour and improve his clarity and awareness of risk factors which will be important for him to reduce/manage his risk of reoffending.

177 Should the offender be subject to a supervision order, Ms Hasson offered five recommendations:

(a) The duration of the supervision order be at least 10 years. Ms Hasson's evidence was that this was the period required for the respondent's risk of reoffending to reduce to an average level.[164]

(b) In the initial stages of an order it will be important to focus on the respondent's main risk factors and provide him with assistance on how to manage the same. Obvious risk factors include managing and controlling an impulse to view child exploitation material, managing thoughts of children, determining his level of sexual drive and sexual arousal patterns. Once these risk factors have been identified and clarified with him, the focus on his risk can be expanded to include risk factors such as exploring his intimacy needs, appropriate sexual outlets, establishing relationships and communication.

(c) The respondent's entrenched persecutory and offence supportive attitudes and beliefs are likely to be particularly resistant to change however that does not exclude them from being challenged and attempts made to moderate or change them.

(d) It is important that the respondent develop a fulfilling lifestyle. Focus should be on seeking meaningful employment or volunteer work, identifying, and engaging in appropriate hobbies, interests, and leisure pursuits, establishing prosocial friendships and supports and maintaining stable accommodation. Reconnecting with his family may also be important to reduce and/or manage his risk of reoffending.

(e) Supportive counselling and adjustment to community living through engagement in individual psychological counselling would be beneficial for the respondent. Such counselling can be provided by Forensic Psychological Services/Specialist Psychological Services or Adult Community Psychological Services to assist with adjustment, maintaining awareness of risk factors associated with offending and to provide intervention and support when the respondent experiences stressful life events. Ms Hasson noted that similar services can be provided by private or community based psychological services.

Psychological and other assessments - s 7(3)(b) Ms Cashmore's community supervision assessment

178 Ms Cashmore is a senior community corrections officer within the Community Offender Monitoring Unit of the Department of Justice, and the author of and one of three signatories to the community supervision assessment report dated 27 April 2022 and to the updated community supervision assessment report dated 17 May 2022.

179 Ms Cashmore recorded that her sources of information included Dr Wynn Owen, Ms Hasson and Ms Collyer. She also met with the respondent on five occasions (four times for the purposes of preparing the first community supervision assessment report, and once for the purposes of preparing the update assessment).

180 In the first part of her report, Ms Cashmore describes the background to the report, including the respondent's serious offending history; the intervention programs he had completed; his prison behaviour; and his previous responses to supervision.[165] All of Ms Cashmore's evidence was consistent with the evidence summarised earlier in these reasons.

181 Ms Cashmore also sets out in her report a proposed community supervision plan, which concerns accommodation options and community supports; potential future employment; and contemplates monitoring and supervision as a basis for managing the respondent's offending behaviour and risk.[166]

182 Ms Cashmore confirmed that accommodation had been found for the respondent should he be released on a supervision order. While Ms Cashmore noted that the proposed accommodation is 'not ideal', her discussions with Ms Hasson and Dr Wynn Owen indicated that in the short-term, the property does not appear to present any risk issues pertinent to the respondent's offending profile.

183 In her updated report, Ms Cashmore confirmed that the accommodation remained available to the respondent. She also described the results of a Desktop Spatial Analysis conducted in relation to the respondent's proposed residence.

Australian National Child Offender Register (ANCOR)

184 Ms Cashmore recorded that the respondent is subject to reporting obligations under the Community Protection (Offender Reporting) Act 2004 (WA). She noted that should the respondent be released from custody, he will be required to report to the officer in charge of the Sex Offender Management Squad (SOMS), or his or her delegate, within 48 hours of his release from custody. As a convicted child sex offender, the respondent will not be permitted to consort with other convicted child sex offenders.

185 Ms Cashmore described the treatment needs and behaviours of the respondent that would require management should he be released from custody on a supervision order as identified in the reports of Dr Wynn Owen and Ms Hasson, together with the strategies suggested by them to manage the respondent's offending behaviours.[167]

186 If the court was to make a supervision order, Ms Cashmore proposed in her report over 60 supervision order conditions. They include conditions which will, among other things, facilitate treatment; facilitate monitoring of movements and associations; allow for the review of electronic devices; allow for the imposition of a curfew; and are focused on the prevention of high-risk situations.

187 I note that if released to a supervision order, the respondent will be subject to Global Positioning System (GPS) monitoring. Ms Cashmore noted in her report that GPS tracking, including the use of GPS exclusion zones, could be utilised to monitor the respondent and prohibit his attendance at high risk locations. Although GPS monitoring can be utilised to identify patterns in the respondent's movements, she noted that there are limitations with the technology in that it will not indicate who the respondent is associating with, nor what he is doing.[168]

188 Ms Cashmore also recorded that Dr Wynn Owen had confirmed his support for a diary condition. She noted that such a condition would require the respondent to record information relating to his daily activities and associations as well as the locations he had attended. She stated that this diary would be regularly reviewed by his community corrections officer and would also be presented to police officers at SOMS upon request. The respondent's movements, as reported in his diary would then be able to be verified through a review of GPS data to identify any frequently attended areas in which the respondent could be forming new relationships and associations, and gaining access to potential victims.

189 Ms Cashmore noted that the accuracy of information contained in the respondent's diary will be reliant on the respondent's self‑report, and as such, order conditions requiring the respondent to report any new friendships and relationships was recommended to ensure that appropriate enquiry into these individuals could occur. She noted that if deemed necessary, a disclosure of the respondent's previous offending and order obligations could be facilitated. Liaison would occur with the respondent's supports and any agencies involved in his case management to verify self-report wherever possible. Ms Cashmore recorded that these proposed conditions were discussed at length with Dr Wynn Owen and he confirmed his support of the same. Ms Cashmore also noted that Ms Hasson questioned the benefit of the GPS monitoring condition given the respondent's assertions about wanting to socially isolate himself, but had stated that she has a neutral view with respect to the condition being imposed.

190 Ms Cashmore stated that given the concerns around the reliability of the respondent's self‑report, in addition to the diary condition, a condition could be included which would require the respondent to outline proposed future movements, either verbally or in written form via his diary. She noted that this would allow for planning of movement and exploration around the respondent's decision-making processes in advance. She noted that discussions concerning the respondent's future movements would also assist him in taking responsibility for behaviours that could be seen as mirroring his previous non-compliance and offending profile, and would facilitate an early dialogue in relation to the same.

191 Ms Cashmore recorded that this proposed condition was discussed at length with Dr Wynn Owen, who confirmed his support for its inclusion. She further noted that a proposed condition had been crafted in a way to allow for change over time, to provide the respondent with the opportunity for self-management, once he was established in the community.

192 During their discussions, Ms Hasson indicated to Ms Cashmore that she does not support this condition as 'it would be too difficult for [the respondent] to manage'. Nevertheless, Ms Cashmore proposes the condition as Dr Wynn Owen had supported it.

193 Ms Cashmore recorded that given the respondent's ongoing deviant sexual interest in children, both Dr Wynn Owen and Ms Hasson supported the inclusion of conditions that restricted his access to the internet. In relation to the management of such conditions, Dr Wynn Owen was of the view that the respondent should be precluded from accessing the internet in entirety immediately upon release; but upon demonstrated reliability and sustained compliance he might be permitted supervised internet access. Similarly, Ms Hasson supported strict supervision of internet access.

194 Ms Cashmore noted that Dr Wynn Owen and Ms Hasson expressed support for conditions that would prohibit access to online social media platforms to reduce the respondent's opportunity to access and groom potential victims.

195 Ms Cashmore proposes conditions permitting the Community Offender Monitoring Unit and the SOMS to review the respondent's electronic devices to allow for the monitoring of any potential high-risk scenarios and to confirm his self-report with respect to associations and relationships. Ms Cashmore recorded that these conditions were support by Dr Wynn Owen and Ms Hasson. In conjunction with this condition, to ensure data integrity, a condition prohibiting the deletion or disguise of electronic data was also included and Ms Cashmore noted it to be supported by both experts.

196 Ms Cashmore drew the court's attention to the respondent's reporting obligations under the Community Protection (Offender Reporting) Act 2004, which require him to report the names and ages of any children who generally reside in his household or the details of any children with whom he has regular unsupervised contact. However, under that Act, prior approval or supervision by an approved adult is not required in order for an offender to have contact with children. As such, Ms Cashmore proposed conditions which would preclude the respondent from having contact with any child under the age of 18 years whether such contact was in person, in writing, by telephone or by electronic means, together with conditions that required approved contact with a child to be supervised at all times by an adult approved in advance by a community corrections officer. Ms Cashmore reported that she had discussed these conditions with Dr Wynn Owen and Ms Hasson, who both confirmed their support for the same.

197 Ms Cashmore reported that both Dr Wynn Owen and Ms Hasson supported a curfew requirement to assist in providing the respondent with stability and structure.

198 Ms Cashmore noted that should the respondent be released to a supervision order, he would be subject to close monitoring and supervision by members of the Risk Management Team, including police from SOMS, community corrections officers, management staff from the Department of Justice, and the Forensic Psychological Intervention Team. Ms Cashmore explained that the risk management of the respondent would include regular and unscheduled home visits, liaison with community agencies and other stakeholders, as well as regular review of his risk factors at Risk Management Meetings. To facilitate the same, Ms Cashmore proposed conditions to facilitate the sharing of information and the involvement of SOMS, also supported by the experts..

199 Ms Collyer is a senior counselling psychologist employed by the Department of Justice. She prepared a report intended to assist with the identification of relevant supervision, management and intervention strategies should the respondent be made subject to a restriction order.

200 In preparing her report, Ms Collyer corresponded with employees from the Community Offender Monitoring Unit, and conferred with Ms Hasson and Dr Wynn Owen. Due to the nature of her report, Ms Collyer did not interview the respondent (as counsel for both the State and respondent noted in their respective outlines of written submissions).[169] Ms Collyer reported that she had however reflected on, among other things, the expert reports.

201 Ms Collyer provided an overview of the treatment options that would be made available to the respondent if a restriction order were made. She noted that the respondent would be referred to the Forensic Psychological Intervention Team within the Department of Justice for consideration of his suitability for engagement with that service. She confirmed that access to psychological services would be dependent on resource allocation and impacted by the respondent's location (metropolitan or regional).

202 Ms Collyer noted that she had considered the respondent's treatment responsivity issues which indicated that it would be desirable for him to work with a practitioner who has experience working with such complex issues. However, Ms Collyer also noted that in her consultations with Dr Wynn Owen and Ms Hasson, they both separately flagged that the respondent may not be responsive to counselling intervention based on his personality features and entrenched antisocial and sexually deviant beliefs, and that he had indicated a lack of motivation to change.[170] Ms Collyer explained that if the respondent is considered suitable to engage in individual intervention, his counsellor would work with him to develop and prioritise treatment goals which would be guided by the experts' reports.

203 Ms Collyer expressed the view that irrespective of the respondent's suitability to engage in individual counselling, external management and monitoring would be of significant importance in managing the respondent.

204 The book of materials contained various additional reports and assessments, which had been prepared for the purpose of other court proceedings. In determining this application, I had regard to the same. They included:

(a) a pre-sentence report by Ms Sandra Jelavic dated 21 October 2007;[171]

(b) a psychological report by Ms Claire Lynn dated 18 December 2007;[172]

(b) a psychological report by Ms Claire Lynn dated 4 March 2008;[173]

(c) a pre-sentence report by Ms Teresa Righetti dated 2 April 2008;[174]

(d) a parole assessment report of Mr Adam Smith dated 29 August 2008;[175]

(e) a psychological report by Mr Troy Holland dated 7 July 2010;[176]

(f) a psychological report by Ms Mary-Ann Martin dated 7 July 2010;[177]

(g) a parole assessment report of Ms Carrie Clements dated 4 November 2010;[178]

(h) a pre-sentence psychological report by Ms Hasson dated 14 November 2012;[179]

(i) an Offender Services clinical assessment report dated 2 September 2013;[180] and

(j) a post-sentence supervision order report by Ms Amber Webster dated 9 November 2021.[181]

205 The reports record the respondent's antecedents and criminal history and provide some context to his offending. There is significant repetition with the evidence described above and it is not necessary for me to describe each report in detail in these reasons. It is sufficient that I note that I considered them and particularly observed as follows.

206 The respondent has in the past shown little insight into his offending and has attempted to minimise and justify his past sexual offending.

207 The parole assessment reports reveal a consistent theme, namely, that the respondent was been deemed unsuitable for release to parole in 2008 and 2010 due to his lack of confirmed accommodation, unaddressed treatment needs, poor participation, resistance to interventions and attitude towards his offending behaviour.

208 Ms Hasson in 2012 found the respondent to have 'complex treatment needs', and her report suggested that the treatment needs relate almost entirely to his personality characteristics and enduring patterns of behaviour rather than to any specific dynamic factors.[182]

Any other relevant matter - s 7(3)(j) Denial of parole

209 I note that the respondent had been refused parole, which counsel on behalf of the State submitted was a relevant consideration.[183] On 7 December 2020 the Attorney-General of Australia gave notice that he refused to release the respondent on parole. The order for refusal of parole was made due to the circumstances and nature of the respondent's offending, including that his criminal history of serious violent offences and multiple sexual offences; his outstanding rehabilitative needs; his conduct in prison; and his lack of established post-release plans.

210 The Attorney-General was also not satisfied that the respondent no longer presented an unacceptable danger to the community. He considered that the risk to community safety posed by the respondent's release on parole outweighed the benefits which parole would provide to assist in his rehabilitation and reintegration into the community.

211 In relation to this parole refusal, counsel for the respondent submitted that the considerations for parole do not assist the court in its determination of this application and so are of little, if any, relevance.[184]

212 I consider the parole refusal to be relevant to the extent that it reveals consistent themes of respondent risk, outstanding treatment needs, poor behaviour while in prison and a lack of constructive plans upon release. The refusal of parole does not however weigh heavily in the balance.

213 In determining the application, I have had regard to the fact that if the respondent is not made subject to a restriction order, then upon release, he will be subject to a post-sentence supervision order until 15 December 2023.[185] However, if the respondent is made subject to a restriction order during the term of the post-sentence supervision order, the post-sentence supervision order will be cancelled by operation of s 74J(3) of the Sentence Administration Act 2003 (WA).

214 I have also had regard to the terms of the post-sentence supervision order, and compared the same with the terms of the supervision order proposed by the State.

215 The post-sentence supervision order was issued by the Prisoner Review Board on 17 November 2021 and provides that the chief executive officer of the Department of Justice must ensure that a community corrections officer is assigned to supervise the respondent for the duration of the order. The Prisoner Review Board determined that a post-sentence supervision order should be made for the following reasons:

1. Your unmet treatment needs (sexual offending) as evidenced by the nature of your current offences, your criminal history and as assessed by Corrective Services. The Board notes your refusal to participate in the Intensive Sex Offender Treatment Program. The Board is of the opinion that a period of community supervision will enable further work to be undertaken by Corrective Services to address your outstanding treatment needs and reduce the risk of you committing a serious offence and thereby the risk that you pose to the safety of the community.

2. The Board is of the opinion that there remains a risk to the safety to children of your sexual offending. Despite previous significant incarceration periods both in Australia and abroad, and intervention to address this, you continue to offend sexually against children. Continued supervision and monitoring will assist to reduce that identified risk.

3. You do not have sufficient protective strategies in place to reduce the risk to the safety of the community or to support your rehabilitation. The Board is of the opinion that further monitoring and supervision will assist you to build support networks and successfully reintegrate into the community whilst reducing the risk of you committing a serious offence and thereby reducing the risk your release poses to the safety of the community.

4. Your extensive and serious criminal history including violence/sexual offending which suggests a high risk of reoffending. The Board notes that during this sentence you were assessed under the LS/RNR assessment as a very high risk of generalist offending, and you have been assessed as a high risk of further sexual offending under the Static-99 and Stable-2007 assessments.

216 Some of the obligations imposed under the 2021 post-sentence supervision order are in terms similar to conditions to which the respondent would be subject under a supervision order by operation of s 30(2) of the HRSO Act. They are the obligation to:

(a) report to a particular location within 72 hours of being released, or as otherwise directed by a community corrections officer;[186]

(b) notify a community corrections officer of any change of residence address or place of employment within two clear working days after the change;[187] and

(c) comply with s 76 of the Sentence Administration Act, which includes an obligation to comply with the lawful orders or directions of any community corrections officer.[188]

217 All of the obligations imposed under the 2021 post-sentence supervision order are in terms similar to conditions that the State contend should be required of the respondent under a supervision order. For example, under the 2021 post‑sentence supervision order, the respondent must:

(a) have no unsupervised contact with children under 18 years of age;[189]

(b) comply with the requirements of the Community Protection (Offender Reporting) Act;[190]

(c) provide police officers upon request, with access to all and any electronic devices that he uses or are in his possession and provide passwords or codes to enable access to such devices;[191]

(d) attend programmes and counselling as directed;[192]

(e) advise the community corrections officer of his residential address and not change that address without the prior approval of the community corrections officer;[193] and

(f) to not leave Western Australia without prior approval.[194]

218 There are also material differences. First, there are several conditions promoted by the State which could have been included as obligations on the respondent under the 2021 post-sentence supervision order, but were not.[195] They are conditions which would require the respondent to be subject to electronic monitoring (proposed condition 7), and which would restrict contact with victims (proposed conditions 24 - 26).

219 Secondly, there are conditions proposed by the State that go beyond the 2021 post-sentence supervision order obligations. They are proposed conditions 19 - 20 (reporting to WA police); 22 - 23 (disclosure/exchange of information); 27 - 29 (criminal conduct); 31 ‑ 33 (curfew); 34 - 37 (medications/mental health); 38 - 40, 44 - 51 (movements/associations); 42 - 43 (further restriction of contact with children); 52 - 61, 64 (electronic devices and internet access); 62 (possession of weapons); and 63 (access to services of sex workers).

220 I note that the Prisoners Review Board may amend a post-sentence supervision order at any time before the end of the order period.[196] Neither counsel substantively addressed me as to whether the amendment power might be used to manage the respondent's risk and then bear on the assessments of unacceptable risk and necessity under the HRSO Act. While noting that there is some scope for a variation to be sought, I have weighed in the balance the 2021 post-sentence supervision order in its current terms and duration.

221 In considering whether the respondent is a high risk serious offender regard must be had to the risk that, if the respondent were not subject to a restriction order, he would commit a serious offence: s 7(3)(h). This calls for a conclusion or findings based on the matters listed in s 7(3)(a) - (g) and (j).

222 I find that on acceptable and cogent evidence, the State established to a high degree probability that there is a risk that upon release, if not subject to a restriction order:

(a) the respondent will access child exploitation material;

(b) if unchecked, the respondent's offending may escalate to offending against a child, which might include taking of photographs and sexual contact; and

(c) the respondent might generally offend, potentially with violence and possibly with use of a weapon.

223 The offending of a sexual nature will have immediate and long term adverse psychological consequences for the victim. The offending of a violent nature will have the potential to cause serious injury and considerable fear and trauma for the victim.

224 In so finding, I particularly had regard to the following.

(a) The respondent has a significant history of sexual offending which includes convictions entered in Thailand for having sexual intercourse with girls under 15 years of age on four occasions, and committing indecent acts on children under 15 years of age on four occasions. His more recent offending history includes 13 convictions of serious offences relating to possession of child exploitation material, or the use of the internet to access child pornography.

(b) The respondent has committed an aggravated armed assault with intent to rob, and has in the past been found to be in possession of weapons.

(c) The respondent has significant outstanding treatment needs, particularly in relation to sexual deviance, sexual preoccupation, coping, problem-solving, emotional and behavioural self‑management, and self-awareness.

I understood the experts to agree that the respondent's offending behaviour is in part driven by a deviant sexual interest in children, compounded by unchecked sexual preoccupation.

Dr Wynn Owen and Ms Hasson both assessed the respondent and considered that his presentation indicated prototypical psychopathy, a robust correlate of future offending. I understand psychopathy to be a robust correlate of future offending. Further, Dr Wynn Owen diagnosed the respondent with paedophilic disorder (non-exclusive type), and antisocial personality disorder (with additional narcissistic and schizoid personality traits).[197] Both experts accepted that the respondent's personality played a role in his offending behaviour.

I understood both experts to agree that the respondent required long term individual therapeutic intervention. This evidence was not challenged.

(d) Although not determinative of the finding, I am informed by the 'risk' scenarios identified and discussed by each expert.[198] Both Dr Wynn Owen and Ms Hasson opined that in their expert opinion, there is a high risk that the respondent will commit a serious offence upon release by accessing child exploitation material or by offending against a child, which might include taking of photographs and/or sexual contact. I weighed the opinions of Dr Wynn Owen and Ms Hasson in the balance.

(e) Again, although not determinative of the finding, both Dr Wynn Owen and Ms Hasson opined that in their expert opinion, there is a risk of the respondent committing a violent offence. Dr Wynn Owen considered that risk to be moderate, whilst Ms Hasson considered it to be moderate to high.[199] Again, I weighed the opinions of Dr Wynn Owen and Ms Hasson in the balance.

225 The respondent did not dispute that it is open to the court to find on the evidence that there is a risk that upon release, if he were not subject to a restriction order, he will commit a serious offence of a sexual or violent nature.

Is the risk that the respondent will commit a serious offence unacceptable?

226 I proceed on the basis that the court is not free to characterise as 'unacceptable' any level of risk which it should choose. Rather, an evaluation of the level of risk according to the objects of the HRSO Act is required, informed by the need to ensure adequate protection for the community.[200]

227 Having regard to the evidence, I am satisfied that the respondent poses a risk that is 'unacceptable'. I have weighed in the balance my findings as to the matters prescribed in s 7(3)(a) - (g) and (j). I particularly had regard to the nature of the risk posed to the community by the respondent given the gravity and nature of the serious offence the respondent is likely to commit; the likelihood of the respondent committing a serious offence; and the consequences to the respondent of a finding being made that an unacceptable risk exists.

228 In considering whether the respondent poses a risk to the community that is 'unacceptable', I have considered the gravity and nature of the serious offence the respondent is likely to commit and the risk to the community that type of offending poses. Among other things, I am informed by the 'risk scenarios' identified and discussed by each expert.[201]

229 Having regard to all of the evidence, I consider the risk posed by the respondent to be grave. I consider the most appropriate characterisation of the nature of the risk posed to the community by the respondent to be the risk that the respondent will access child exploitation material and that offending may escalate to offending against a child, which might include taking of photographs and sexual contact. Such offending has a high probability of immediate and long term adverse psychological consequences for the victim.

230 The respondent also poses the risk to the community of general offending, potentially with violence and possibly with use of a weapon. The offending of a violent nature has the potential to cause serious injury and considerable fear and trauma for the victim.

231 In considering whether the respondent poses a risk that is 'unacceptable', I turn to consider the likelihood of the respondent offending and I weigh the following in the balance.

232 First, the respondent has a significant history of committing offences of a sexual nature against children. He was convicted in Thailand for having sexual intercourse with girls under 15 years of age on four occasions, and committing indecent acts on children under 15 years of age on four occasions. He has multiple convictions for having accessed child exploitation material.

233 Secondly, the respondent has violently offended while under significant stress. Upon release, the respondent has no ready means of supporting himself, no family or social supports, and the potential to again be placed under considerable stress.

234 Thirdly, it was common ground that the respondent has significant unmet treatment needs. The form of therapeutic intervention undertaken by the respondent to date was not suitable, appropriate individual therapeutic treatment being only rarely available in a prison setting.

235 Fourthly, the respondent's response to supervision to date has been poor. Upon release from custody in 2012 and 2017, he offended within a short time, and he has also engaged in some acts of violence while in prison.

236 Fifthly, the convictions and diagnosis readily permit the inference to be made that the respondent has a propensity or tendency to commit sexual offences against children, particularly young females, both by accessing child exploitation material and by 'contact' offending. Further, there is a clear pattern to his sexual offending.

237 Sixthly, although not determinative, I weigh the opinions of Dr Wynn Owen and Ms Hasson in the balance when I evaluate the likelihood of the respondent reoffending. Both evaluate the likelihood of the respondent reoffending by the commission of an offence of a sexual nature as high, and of a violent nature as at least moderate.

238 On balance, I consider the likelihood of the respondent committing an offence of a sexual nature to be high, and of a violent nature to be moderate to high. I am satisfied of the same having weighed all of the evidence, including the evidence of the experts.

The consequences to the respondent of making a finding that an unacceptable risk exists

239 Upon the making of a restriction order, serious consequences would be visited upon the respondent. The State pressed for the respondent to become subject to a continuing detention order, alternatively a supervision order for a term of 8 to 10 years, which is longer in duration and more onerous in its terms than the 2021 post‑sentence supervision order.

240 In determining whether the risk posed by the respondent is 'unacceptable' I have weighed in the balance the gravity and nature of the risk posed by the respondent and the likelihood of that risk materialising on the one hand, and the serious consequences for the respondent on the other. I did so having regard to the need to ensure adequate protection for the community.

241 On the one hand, the risk posed by the respondent (a risk that he would upon release commit a serious offence of a sexual or violent nature), has the potential to cause immediate and long term adverse psychological consequences for the victim of a sexual offence, and serious injury, fear and trauma for a victim of a violent offence. The risk posed to the community is grave, having regard to, among other things, the respondent's previous pattern of serious offending.

242 As to the likelihood of the risk materialising, for the reasons set out above, I am satisfied that the likelihood of sexual offending is high, and violent offending is moderate to high.

243 I am also satisfied that upon the making of a restriction order, serious consequences would be visited upon the respondent.

244 Weighing all of these matters in the balance and the need to ensure adequate protection for the community, I am satisfied to a high degree of probability that the respondent poses a risk that is 'unacceptable'.

If the risk is found to be unacceptable, is it necessary to make a restriction order to ensure adequate community protection against a risk that the offender will commit a serious offence?

245 The legislative scheme requires that regard be had to the need to protect members of the community from the risk: s 7(3)(i). Again, this calls for a conclusion or findings based on the matters listed in s 7(3)(a) ‑ (g) and (j). I proceed on the basis that a finding of unacceptable risk is not determinative of a restriction order application, and the court might find that it is not necessary to make a restriction order to adequately protect the community notwithstanding that it finds that the risk of future offending is unacceptable.[202]

246 On the evidence, I find the risk to be 'unacceptable' and for the following reasons, I consider it to be necessary to make a restriction order to ensure adequate community protection against the risk that the offender will commit a serious offence.

247 First, I consider that the gravity and nature of the risk posed to the community by the respondent is such that it supports a finding of 'necessity'. This is informed by my characterisation of the nature and gravity of the risk posed to the community given the type of serious offence that the respondent is likely to commit; and the likelihood of the respondent committing a serious offence, discussed at [228] ‑ [238] above.

248 Secondly, I consider the 2021 post-sentence supervision order to not provide adequate protection of the community against the unacceptable risk that the offender would commit a serious offence, such that a restriction order would not be 'necessary'. In this regard, I note that the conditions to which the respondent would be subject are less comprehensive under the 2021 post-sentence supervision order when compared to the conditions that must be included in a supervision order and which are otherwise promoted for inclusion as additional orders by the State. The post‑sentence supervision order does not contemplate the electronic and report monitoring of the respondent's movements, nor restriction of access to the internet. Further, I accept the evidence of the experts that the term of the 2021 post‑sentence supervision order is not of adequate duration.

249 As such, I am satisfied to a high degree of probability that a restriction order with effect beyond the term of the 2021 post-sentence supervision order is necessary.

250 I also had regard to the reference made to the Community Protection (Offender Reporting) Act in Ms Cashmore's report. I understood that the respondent is a reportable offender subject to that Act,[203] and that the strategies recommended to manage the respondent's offending behaviour described in Ms Cashmore's report, which were formulated in consultation with Dr Wynn Owen and Ms Hasson among others, include strategies reflected in proposed conditions that are greater than the restrictions that would be imposed upon the respondent under the Community Protection (Offender Reporting) Act upon release. The evidence does not permit a meaningful comparison of the effectiveness of an order available under the Community Protection (Offender Reporting) Act and a supervision order under the HRSO Act. On the evidence, I cannot be satisfied that the obligations that might be imposed on the respondent under the Community Protection (Offender Reporting) Act are sufficient to ensure the adequate protection of the community.

251 I am satisfied to a high degree of probability that on the evidence, there is a need to protect the community from the risk that the respondent will commit a serious offence by making a restriction order.

252 Having decided that the respondent is a high risk serious offender, I must make either a continuing detention order or a supervision order in relation to him.[204] In making this decision, the paramount consideration is the need to ensure the adequate protection of the community. The need to ensure the adequate protection of the community does not exclude other considerations.[205]

253 In considering whether a supervision order will adequately protect the community, it is necessary that I take into account any conditions which can be placed on a supervision order so as to ensure adequate protection of the community, the respondent's rehabilitation, care and treatment, and to ensure adequate protection of complainants of offences committed by the respondent.[206] I proceed on the basis that I must choose the order that is the least invasive to the respondents' liberty while ensuring an adequate degree of protection of the community.

254 I must also be satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of the order as required under s 29 of the HRSO Act. This requires me to be satisfied that the offender will comply with the standard conditions in a manner and to an extent that will ensure the adequate protection of the community from the unacceptable risk of the respondent committing a serious offence.[207] The standard conditions are those contained in s 30(2) of the HRSO Act and include reporting, supervision and electronic monitoring. The onus is on the offender to satisfy the court that he will substantially comply with the standard conditions.[208]

255 The parties acknowledged that in the event that the court is satisfied that the respondent is a high risk serious offender, it is a matter for the court as to what order to impose. It was the State's position that the appropriate restriction order in all of the circumstances would be a continuing detention order.[209] Counsel for the respondent submitted that the risk the respondent presents to the community can be adequately managed by a supervision order.[210]

256 On the basis of the evidence before me, I am satisfied of the following matters.

257 The respondent has a significant history of serious offending and a poor history of supervision. He has a propensity to commit sexual offences against children, particularly young females, both by accessing child exploitation material and by 'contact' offending. He has significant unmet treatment needs and the risk that he poses to the community of sexual offending is high and is unacceptable. The risk he poses to the community of violent offending is moderate to high and is also unacceptable.

258 Upon release from custody in 2012 and 2017, the respondent offended within a short time. However, as noted by Ms Hasson in her evidence, he did so in circumstances where he had no support and unstable accommodation. A supervision order would provide the respondent with considerable support and treatment, in combination with monitoring and supervision.[211]

259 There are more resources available to meet the treatment needs of the respondent in the community while subject to a supervision order than if he were made subject to a continuing detention order. Indeed, it was Dr Wynn Owen's evidence that 'from the point of view of any therapeutic gain, it is highly unlikely that any further period of imprisonment will improve [the respondent's] current situation. If anything, it will make it worse'.[212] The HRSO Act object of provision of care or treatment of high risk serious offenders is, in the circumstances of the respondent, more readily met by the imposition of a supervision order.

260 If released upon a supervision order, the respondent will be subject to the standard conditions as prescribed in the HRSO Act. In addition to the standard conditions, over 50 further conditions were proposed in the community supervision assessment report prepared by Ms Cashmore.

261 I understood that the proposed additional conditions for the supervision order were designed to achieve the appropriate management of the respondent and his risk of offending. The conditions proposed were comprehensive and address the respondent's specific risk factors.

262 The first additional condition concerned the respondent's residence. Suitable initial accommodation has been identified and will be available to the respondent upon his release. Available accommodation for high risk serious offenders is unlikely to ever be perfect. The accommodation proposed raised no particular red flags. Reliable accommodation is necessary for supervision and structure. A lack of reliable accommodation had previously contributed to the respondent's stress and the circumstances of his offending. I note that the additional conditions contemplate that the reliable and appropriate accommodation now secured may change only with the advance approval of a community corrections officer.

263 If released on a supervision order, the rehabilitation, care or treatment of the respondent will be facilitated by conditions which provide for his engagement with services and treatment designed to address his offending behaviour. He will be obliged to engage with a psychologist or psychiatrist as directed by a community corrections officer; attend all appointments as directed; and undergo medication treatment as directed.

264 If placed on a supervision order, the respondent will be subject to electronic monitoring. Further, the additional conditions contemplate the respondent having to obtain prior approval of his projected movements.

265 The additional conditions also address the risk of the respondent accessing child exploitation material by prohibiting his access to the internet unless approved and supervised, as directed by a community corrections officer. Strict restrictions on access to social media are also contemplated.

266 In addition to the proposed conditions, the court may include a condition that not only restricts the respondent's access to the internet, but also restricts his unsupervised access to all computers and electronic devices by which he might access child exploitation material. He might also be prohibited from entering any location where the public may access the internet, such as internet cafes, backpacker accommodation and public libraries, unless supervised or with the permission of his community corrections officer. The experts expressed their support for the making of such conditions.[213]

267 The experts also supported the inclusion of curfew and review powers, which they considered would assist the respondent by promoting stability and structure.[214]

268 On the evidence, the decision of whether to make a continuing detention order or to impose a supervision order is finely balanced. The paramount consideration is the need to ensure the adequate protection of the community. Having weighed all the evidence, I am satisfied that the risk that is presented by releasing the respondent on a supervision order can be reduced or guarded against to a level that is reasonably acceptable and will ensure the adequate protection of the community.

269 I am satisfied that the imposition of comprehensive conditions, which contemplate very close supervision and immediate and ongoing psychological intervention, combined with the respondent's desire not to continue to be detained, reduce the risk posed by the respondent to a level that is reasonably acceptable and will ensure the adequate protection of the community. Again, while not determinative, I note that this is a view shared by the experts, and I weighed the same in the balance.

270 When asked her view as to whether the respondent could comply with the conditions proposed, particularly the standard conditions, Ms Hasson's evidence was:[215]

There's no reason he shouldn't be able to. It's not that he - he will understand the conditions. He will know the consequences. He will be well aware of those. It will come down to his motivation to remain in the community and offence free and to, essentially, abide by rules and laws and expectations, which he has struggled to do.

Individuals with a personality type like [the respondent] - once they put their mind to something and commit to something, they can follow through. If they see the value in it, if they see that it's helpful and in their best interests, there's nothing to stop him from doing that. If he is agreeable to these conditions and he knows what they are and he knows the consequences and he has stated very clearly he will do that, then there's nothing to suggest he won't meet that obligation necessarily.

272 In all of the circumstances, the respondent has satisfied me on the balance of probabilities that he would substantially comply with the standard conditions specified in the HRSO Act. Absent the imposition of the additional proposed conditions, I would not be so satisfied. I accept the evidence of the experts that treatment support with comprehensive restrictions and supervision will be necessary to manage the respondent's response to challenging situations throughout the term of the supervision order.

273 The additional proposed conditions are required to provide essential supervision, support and boundaries to the respondent. With the imposition of comprehensive conditions, I find that the level and nature of the risk that the respondent will still pose if released on the proposed supervision order would be reasonably acceptable viewed from the perspective of the protection of the community.

274 All but two of the additional conditions proposed by Ms Cashmore will be adopted. While the respondent admitted to trying illicit substances in his youth,[217] he is now over 60 years of age and he does not have a history of substance abuse, nor was substance abuse a factor in his past offending.[218] A specific condition prohibiting the possession, consumption or use of prohibited substances is not required, a view shared by Dr Wynn Owen.[219] Further, I am satisfied that there is no need for a condition that specifically prohibits the respondent's access to services of escort agencies and the like, as the conditions also contemplate the respondent obtaining prior approval of his projected movements.

275 As to the number and complexity of the conditions proposed, I am satisfied that comprehensive conditions are appropriate in the circumstances. The experts considered the respondent capable of understanding the proposed conditions. They also opined that comprehensive conditions that left no room for debate or ambiguity, would be appropriate given the respondent's personality.[220]

276 While the conditions proposed, including those which facilitate the imposition of a curfew and monitoring of electronic devices, are invasive to the respondent's liberty, given the high risk he presents to the community, they are appropriate and necessary. The use of some conditions may be modified during the term of the order, as appropriate to respond to a reduced risk.

277 The supervision period needs to be long enough to allow the respondent's treatment needs to be addressed. Dr Wynn Owen's evidence was that the appropriate duration of the supervision order was at least 8 ‑ 10 years.[221] Ms Hasson similarly recommended that if the respondent is subject to a supervision order, it should be for at least 10 years.[222]

278 On the evidence of the two qualified experts, I am satisfied that it will take some considerable time for the risk posed by the respondent to reduce. In these circumstances I consider the appropriate duration for the order is 10 years.

279 In the course of the directions hearing on 3 May 2022, counsel on behalf of the respondent sought orders to suppress the respondent's identity, and any proposed address of the respondent should he be released on a supervision order.[223] The State did not oppose the grant of an interim suppression order, reserving the right to be heard in relation to any final order at the substantive hearing of the application.

280 At the substantive hearing, counsel confirmed that the respondent still pressed for use of a pseudonym and suppression of his proposed address.[224] Reference was made to the notoriety and publicity which followed hearings concerning the respondent, particularly upon his return from Thailand.[225] Following previous releases from prison, the respondent encountered problems when recognised, particularly from vigilantes, which added to his stress.[226] That stress was a contributing factor to some of the respondent's serious offending.

281 While the State did not oppose the respondent's requested use of a pseudonym and suppression of his proposed address, the State's position was not determinative of the matter.

282 In determining the application, I was mindful of the principle of open justice. Judicial hearings should take place in open court, with no restriction on reporting. Of course, there are circumstances which justify open justice being curtailed. For example, pseudonym orders and orders to prohibit the publication of an address may be necessary to secure the proper administration of justice. Individual considerations affecting the person seeking the order ought be balanced against the principal rule of open justice in determining whether the administration of justice warrants the making of a pseudonym or suppression order. Circumstances where suppression, closed court and pseudonym orders are made to prevent prejudice to the administration of justice include where there is a pending jury trial which may be prejudiced by publication of past offences, or where it is desirable to protect the safety of persons who are to be litigants or witnesses in a proceeding. Embarrassment or distress alone will generally not suffice.

283 On balance, I am not satisfied that a pseudonym order is appropriate in the circumstances of this proceeding. There are no pending charges involving the respondent.[227] Secondly, the pseudonym order was not promoted by the Community Offending Monitoring Unit. It had no position regarding the respondent's identity being anonymised. I understood this to mean that from the perspective of the Community Offending Monitoring Unit, suppression of the respondent's identity is not necessary to enable them to fulfil their supervision function. Thirdly, while there I acknowledge that the respondent may suffer stress from the publication of his name or image following publication of these reasons, I am not satisfied that this would be to such an extent so as to sacrifice the public interest in adhering to an open system of justice.

284 As to the proposed address of the respondent, the standard practice of the Community Offending Monitoring Unit is to request suppression of the proposed address of the respondent if he were to be released on a supervision order.[228] The effect of Ms Cashmore's evidence was that suppression of the respondent's proposed address is necessary to protect officers of the Community Offending Monitoring Unit, the owner of the location prepared to rent that location to the respondent, and the respondent himself from vigilante action.[229]

285 While mindful of the principle of open justice, in this case I consider that the administration of justice requires that the respondent's proposed address be suppressed. This is to avoid a circumstance in which the efficacy of the court's order may be compromised, and the safety of third parties who are charged with monitoring and treating the respondent may be compromised. I therefore propose to make a suppression order only to the extent that it prohibits publication of the respondent's proposed address.

286 For these reasons, I am 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 the unacceptable risk that he will commit a serious offence. Having regard to all of the evidence and to my findings, I am satisfied that the respondent is a high risk serious offender under the HRSO Act. Further, I have determined that the risk of reoffending may be adequately managed in the community with the imposition of a supervision order for a period of ten years. Accordingly, I propose to make a supervision order in the terms set out at sch A to these reasons.

287 Finally, as to the treatment of the respondent, I make the following observations.

288 Under the supervision order, the respondent will be subject to additional conditions which require him to attend treatment as directed. As to the form of treatment, the experts were largely consistent in their views as to the treatment needs of the respondent, and the potential for the respondent to positively respond to treatment and address his offending behaviour. The respondent requires long term individual psychotherapeutic intervention from an experienced psychiatrist or forensic psychologist. The respondent would benefit from participating in weekly therapeutic sessions, of a 90 to 180 minute duration.

289 Dr Wynn Owen opined that an anti-libidinal medication would reduce the respondent's libido and deviant sexual thinking, as well as reduce his intrusive thoughts and sexual preoccupation, all of which would assist his engagement with and focus on his treatment.[230] He considered that anti-libidinal therapy as an adjunct to intervention therapy would improve the likelihood of treatment being effective.

290 To date, the respondent has not had treatment capable of addressing his treatment needs. Within the bounds of the resources available, the evaluation and treatment of the respondent should be afforded priority.

STANDARD CONDITIONS REQUIRED BY THE HIGH RISK SERIOUS OFFENDERS ACT 2020 (WA)

1. Report to a Community Corrections Officer at the East Perth Adult Community Corrections Centre, 30 Moore Street East Perth Western Australia within 48 hours of the order being issued and advise the officer of your current name and address.

2. Report to and receive visits from, a Community Corrections Officer as directed by the Court.

3. Notify a Community Corrections Officer of every change of your name, place of residence, or place of employment at least two business days before the change happens.

4. Be under the supervision of a Community Corrections Officer, 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 Community Corrections Officer.

6. Not commit a serious offence during the period of the Order.

7. Be subject to electronic monitoring under section 31.

8. Take up residence at [suppressed] and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer (CCO) assigned to you.

9. Report to a CCO at your approved release address within normal business hours on the day of release from custody under this order.

10. Be under the supervision of a CCO, and comply with the lawful orders and directions of a CCO.

11. Not commence or change paid or unpaid employment, volunteer work, education, or training without the prior approval of the CCO.

12. Should your pre-approved employment require you to work at different locations, you are required to notify your CCO of any change of location where you are working, during working hours on the day you are working at the new location, or as otherwise directed by your CCO.

13. Consult and engage with any medical practitioner, psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO.

14. Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious re-offending, as directed by a CCO.

15. Attend all appointments and receive visits from any medical practitioner, psychiatrist, psychologist, counsellor, support service and/or support person nominated by a CCO, as directed by a CCO.

16. Report to the Officer-in-Charge of the High Risk Serious Offender team 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 High Risk Serious Offender team or his/her delegate.

17. Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004 (WA).

18. If requested, permit Police Officers to enter and search your person, residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this Order and allow the seizure of any such items that the Police Officers believes to contravene the conditions of the Order.

19. Remain at your premises and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the provisions of the High Risk Serious Offenders Act 2020.

20. 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 screen name(s), user name(s), and email addresses. Further authorise police officers from the Western Australia Police Force (WA Police Force) to access any cloud-based platforms or services associated with the devices you use, and examine the internet accounts at any time for the purposes of monitoring your online behaviour (absent any investigation for any offence).

21. Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information.

22. 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 offending history.

23. Have no contact, directly or indirectly, with the victims of your sexual and violent 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.

24. 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 or violent 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 victims at all times.

25. Report to the CCO and WA Police any direct or indirect contact with the victims of your offending on the next working day you report to the CCO or Police.

26. Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either sexual offences, violence, threats of violence, or the possession of weapons or offensive instruments.

27. Not commit an offence under s 202, s 203, s 204, s 557 of the Criminal Code 1913 (WA) or s 17(1) of the Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 (WA).

28. Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA).

29. Be subject to a curfew, pursuant to s 32 of the High Risk Serious Offenders Act 2020, such that you are to remain at and not leave you approved address as directed by a CCO from time to time.

30. When subject to a curfew under this order, present yourself for inspection at the front door or front yard of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew.

31. 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.

32. Attend any medical practitioner, psychologist, psychiatrist, or counsellor as directed by the supervising CCO or undergo medication treatment, including anti­depressant medication or anti-libidinal treatment, as directed by the CCO in consultation with a medication practitioner or medical practitioners.

33. 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.

34. Permit any medical practitioner or medical practitioners to advise the CCO immediately if they become aware or suspect that you have, or intend to cease undergoing pharmaceutical anti-libidinal and or anti-depressant medication contrary to the advice of the medical practitioner or medical practitioners, or you have apparently ceased to consult with that medical practitioner or medical practitioners on such treatment.

35. Comply with all testing to monitor your compliance with medical treatment and hormonal anti-libidinal treatment as directed by a CCO.

36. 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.

37. Not to leave [suppressed] other than in accordance with your projected movements as approved in accordance with condition 36, except:

(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 the respondent or another person;

(c) to obey an order issued under a written law (such as a summons) requiring your presence elsewhere;

(d) at the direction of a CCO or Police Officer.

38. 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 Officers upon request.

39. Not associate with any person known by you to have committed a sexual offence unless such association is authorised in advance by the CCO.

40. 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.

('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).

41. 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.

42. Provide the name, address, location and any details known by you, of any contact with a child under the age of 18 years both to your CCO and to the Police on the next occasion you report to that person or agency.

43. Report at your next contact with your CCO, the formation of any social association (of more than 1 contact by any means), domestic, romantic, sexual or otherwise intimate relationship by you with any person.

44. As directed by your CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence an ongoing social association (of more than 1 contact by any means), domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.

45. Not to 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, including former victims of your previous offending, without prior CCO approval.

46. Have no contact with, membership of or affiliation with clubs, associations or groups where membership includes children, unless approved by a CCO; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer.

47. Not to attend concerts, events or venues frequented by children under 18 years, without prior approval of a CCO.

48. Not to remain in any child focussed area (such as the children's section of any Department store) where children congregate, unless you have a reasonable excuse.

49. Whilst in any public place or in view of a public place, not be in possession of any animate or inanimate item capable of constituting an enticement to children, unless such possession is for legitimate purpose and approved in advance by a CCO.

50. Not have in your possession, custody or control any computer, telecommunication and/or electronic device capable of storing digital data or information, or being connected to the internet, unless such possession, custody or control is approved in advance by the CCO.

51. Advise a CCO or Police Officer of every computer, telecommunication and/or electronic device capable of storing digital data or information, in your possession, custody or control, or used by you, whether or not it is capable of being connected to the internet, and the location of that device.

52. Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 51, without prior approval.

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

54. 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 any computer, telecommunication and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police.

55. Not to access pornographic materials, including online pornographic materials. 'Pornographic materials' in this condition means printed or visual or any medium of material that contains the explicit description or display of sexual organs or activity.

56. Not access the internet on any computer, telecommunication or other device capable of internet access, unless such access is approved and supervised at all times by a person approved in advance by a CCO, as directed by a CCO.

57. Not enter or remain at any location where internet services are provided to the public, including, but not limited to, any internet cafe, public library or backpacker hostel, without the approval in advance of the CCO.

58. Not access the internet for, nor collect or be in possession of, in either electronic or permanent form, images of children, including drawings or sketches, whether indecent or not. Possession of such images depicting a child or children on items such as on household items or your immediate family may be authorised by a CCO. Immediate family means pictures of yourself, your siblings, your parents, and your spouse only.

59. Not access the internet for, nor collect or be in possession of any document, paper, or any other medium used for displaying words, either in the written or printed form that describes sexual activity with a child and/or children.

60. Not to access Facebook, lnstagram, Tik Tok, Snapchat and other online social media or application software program, unless approved in advance by a CCO.

61. Not to conduct any search by a computer or other electronic means using a search term that incorporates the word/s "child", "children", "kid", "kids", "boy", "boys", "girl", "girls", "adolescent", "adolescents", "manga", "anime", "underage", "incest", "preteen", "abused".

62. Not to be in possession of any firearm, any ammunition or any offensive or prohibited weapon, replica or dangerous article and not to apply for, acquire or hold a licence to possess any firearm, any ammunition or any offensive or prohibited weapon, replica or dangerous article.

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

[1] As was in force immediately before 21 September 2019.

[2] HRSO Act s 5(5), read with High Risk Serious Offenders Regulations 2020 (WA) reg 4, item 4.

[3] ts 84 - 85, 182 (24 May 2022); see also the respondent's submissions, pars 2(k) and 5.

[10] The State of Western Australia v Latimer [2006] WASC 235 [49] (Murray J). See also the respondent's submissions, par 6.

[11] The State of Western Australia v ACJ [2021] WASC 219 [32].

[12] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33] (Beech J), citing Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [57].

[13] The State of Western Australia v ACJ [32], citing Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14].

[14] See also The State of Western Australia v D'Rosario (No 3) [2021] WASC 412 [18] ‑ [22]; and The State of Western Australia v Narrier (No 2) [2022] WASC 49; The State of Western Australia v Nelson [2021] WASC 460 [12] ‑ [15]; The State of Western Australia v MAM [2022] WASC 100 [18].

[15] The State of Western Australia v Garlett [136(b)], [126].

[16] The State of Western Australia v Garlett [136(b)].

[17] HRSO Act s 7(1). See also HRSO Act s 82(2).

[18] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [28].

[19] The State of Western Australia v Garlett [136(d)], as noted by Quinlan CJ in The State of Western Australia v D'Rosario (No 3) [21].

[20] The State of Western Australia v D'Rosario (No 3) [21].

[21] The State of Western Australia v Garlett [136(d)], cited with approval by Quinlan CJ in The State of Western Australia v D'Rosario (No 3) [22].

[22] Exhibits 1, 2 and 3, respectively.

[30] As observed recently by McGrath J in The State of Western Australia v Nelson [33].

[31] Again, as observed by McGrath J in The State of Western Australia v Nelson [34], referring to the HRSO Act s 7(3)(c) and s 7(3)(d).

[32] Exhibit 3, page 1108 (Ms Hasson's report, par 9).

[33] Exhibit 3, page 1108 (Ms Hasson's report, par 11).

[34] Exhibit 3, page 1179 (Dr Wynn Owen's report, par 87).

[35] Exhibit 3, page 1179 (Dr Wynn Owen's report, par 89); and Exhibit 3, page 1110 (Ms Hasson's report, par 18).

[36] See, for example, Exhibit 1, page 196 (Ms Lynn's Addendum to Pre-Sentence Report dated 18 December 2007).

[37] Exhibit 1, pages 5 ‑ 15 (New South Wales Criminal History); Exhibit 1, page 16 (Queensland Criminal History); and The State of Western Australia v Dragon [2012] WASCSR 206 [13] - [14].

[38] Exhibit 3, page 1108 (Ms Hasson's report, par 8).

[39] Exhibit 3, page 1108 (Ms Hasson's report, par 10).

[40] Exhibit 1, page 61 (Individual Management Plan).

[41] Exhibit 3, page 1150 (Community Supervision Assessment); and Exhibit 3, page 1185 (Dr Wynn Owen's report, par 121).

[42] Exhibit 3, page 1179 (Dr Wynn Owen's report, par 82).

[44] Exhibit 3, page 1078 (Ms Lynn's Addendum to Pre-Sentence Report dated 18 December 2007); and Exhibit 3, page 1111 (Ms Hasson's report, par 24).

[45] Exhibit 3, page 1177 (Dr Wynn Owen's report, par 73); Exhibit 3, page 1127 (Ms Hasson's report, par 116); ts 114 - 115, 134 (24 May 2022).

[48] Respondent's submissions, pars 2(a), 2(j).

[49] The State of Western Australia v Dragon [2012] WASCSR 206 [15].

[51] Exhibit 1, page 17 (summary of offending in Thailand).

[53] Exhibit 1, pages 177 - 179 (statement of material facts).

[54] Exhibit 2, pages 440 - 450 (transcript of proceedings in the District Court on 15 January 2008).

[55] Exhibit 1, pages 203 - 204 (statement of material facts).

[56] Exhibit 2, pages 465 - 466 (transcript of District Court proceedings on 27 May 2008); and Exhibit 2, page 478 (the ruling on the 61 images).

[57] Exhibit 2, pages 451 - 477 (transcript of proceedings in the District Court on 27 May 2008); and Dragon v State of Western Australia [2008] WASCA 252, reproduced in Exhibit 2, pages 485 - 509.

[58] Exhibit 1, pages 205 - 206 (District Court indictment 931 of 2010).

[59] Exhibit 2, pages 514 - 539 (transcript of proceedings in the District Court on 27 August 2010).

[60] Exhibit 3, page 1175 (Dr Wynn Owen's report, par 58).

[61] The State of Western Australia v Dragon [2012] WASCSR 206, reproduced in Exhibit 1, pages 251 - 258; see also Exhibit 1, page 223 (Supreme Court indictment 193 of 2012).

[62] Exhibit 1, pages 231 - 250 (transcript of proceedings in the Supreme Court on 11 December 2012).

[64] Exhibit 3, page 1170 (Dr Wynn Owen's report, par 41).

[65] Exhibit 3, page 1170 (Dr Wynn Owen's report, par 43).

[66] Exhibit 1, pages 260 - 261 (amended statement of material facts).

[67] Exhibit 1, pages 263 - 306 (transcript of proceedings in the District Court on 31 January 2019). The respondent's appeal against sentence was unsuccessful: Dragon v The State of Western Australia [2019] WASCA 84.

[68] HRSO Act s 5(5), read with High Risk Serious Offenders Regulations 2020 (WA) reg 4, item 4.

[69] Exhibit 3, page 1170 (Dr Wynn Owen's report, par 39).

[70] Exhibit 3, page 1170 (Dr Wynn Owen's report, par 38).

[71] Exhibit 1, pages 321 - 322 (statement of material facts).

[72] Exhibit 1, pages 314 - 316 (statement of material facts).

[73] Exhibit 1, pages 325 - 327 (statement of material facts).

[75] Exhibit 1, page 22 (Charge History - Prisoner).

[76] Exhibit 1, pages 32 ‑ 34 (Department of Justice records relating to incident occurring on 23 August 2019); and Exhibit 3, page 1145 (Community Supervision Assessment).

[77] Respondent's submissions, par 2(l).

[78] Exhibit 1, page 61 (Individual Management Plan).

[79] Exhibit 2, pages 392 (Ms Webster's Post Sentence Supervision Order Report dated 9 November 2021).

[80] State's submissions, pars 187 - 188.

[81] Respondent's submissions, par 2(l).

[82] Respondent's submissions, par 8; ts 85, 182 (24 May 2022).

[83] The State of Western Australia v Bellamy [2013] WASC 467 [70].

[86] Exhibit 1, page 371 (Program Completion Report dated 8 August 2016); Exhibit 3, pages 1118, 1126 and 1137 (Ms Hasson's report, pars 66, 109 and 182); Exhibit 3, pages 1188 - 1189 (Dr Wynn Owen's report, pars 150 - 151); ts 97 (24 May 2022).

[88] Respondent's submissions, par 2(h).

[89] State's submissions, par 138; and the respondent's submissions, par 2(h).

[90] Exhibit 1, page 330 (Clinical Intervention Program Participation Waiver dated 18 July 2008).

[91] Exhibit 1, pages 349 (Completion Report - Think First Cognitive Skills Program).

[92] Exhibit 1, page 371 (Program Completion Report dated 8 August 2016).

[93] Exhibit 3, page 1196 (Dr Wynn Owen's report, par 181).

[97] Exhibit 3, page 1139 (Ms Hasson's report, par 195).

[98] ts 135 (24 May 2022); Exhibit 3, page 1136 (Ms Hasson's report, par 178).

[100] Exhibit 3, pages 1162 - 1163 (Dr Wynn Owen's report, par 2).

[101] Exhibit 3, page 1186 (Dr Wynn Owen's report, par 132).

[102] Exhibit 3, pages 1170 - 1175 (Dr Wynn Owen's report, pars 36 - 58).

[103] Exhibit 3, pages 1175 - 1177 (Dr Wynn Owen's report, pars 59 - 71).

[104] Exhibit 3, page 1176 (Dr Wynn Owen's report, par 64).

[105] Exhibit 3, page 1176 (Dr Wynn Owen's report, par 66).

[106] Exhibit 3, page 1177 (Dr Wynn Owen's report, par 71).

[107] Exhibit 3, page 1177 (Dr Wynn Owen's report, par 73).

[108] Exhibit 3, page 1185 (Dr Wynn Owen's report, par 120).

[109] Exhibit 3, page 1185 (Dr Wynn Owen's report, par 123).

[110] Exhibit 3, page 1185 (Dr Wynn Owen's report, pars 124 and 125).

[112] Exhibit 3, pages 1185 - 1186 and 1197 (Dr Wynn Owen's report, pars 128 and 187(ii)).

[116] Exhibit 3, page 1186 (Dr Wynn Owen's report, par 129 - 130).

[119] Diagnostic and Statistical Manual of Mental Disorders, 5th edition.

[120] Exhibit 3, pages 1186 - 1187 (Dr Wynn Owen's report, pars 133 - 136).

[121] ts 100 (24 May 2022); Exhibit 3, page 1191 (Dr Wynn Owen's report, par 157).

[123] Exhibit 3, page 1187 (Dr Wynn Owen's report, par 138); ts 95 (24 May 2022).

[124] Exhibit 3, page 1187 (Dr Wynn Owen's report, par 140).

[125] Exhibit 3, page 1187 (Dr Wynn Owen's report, par 141); ts 96 (24 May 2022).

[126] Exhibit 3, page 1188 (Dr Wynn Owen's report, par 142); ts 96 (24 May 2022).

[127] Exhibit 3, page 1188 (Dr Wynn Owen's report, par 144); ts 95 (24 May 2022).

[128] ts 98 (24 May 2022); see also ts 101 (24 May 2022).

[129] Exhibit 3, pages 1193 - 1194 (Dr Wynn Owen's report, pars 168 - 175); see also ts 101 - 102 (24 May 2022).

[130] Exhibit 3, page 1194 (Dr Wynn Owen's report, par 177); ts 96 (24 May 2022).

[131] Exhibit 3, page 1194 (Dr Wynn Owen's report, par 176).

[132] Exhibit 3, pages 1194 - 1195 (Dr Wynn Owen's report, par 177).

[133] Exhibit 3, page 1196 (Dr Wynn Owen's report, par 183).

[134] Exhibit 5; ts 103 (24 May 2022).

[135] Exhibit 3, page 1196 (Dr Wynn Owen's report, par 183); ts 102 (24 May 2022).

[137] Exhibit 3, page 1196 (Dr Wynn Owen's report, par 184).

[139] Exhibit 3, page 1196 (Dr Wynn Owen's report, par 185).

[140] Exhibit 3, pages 1196 - 1197 (Dr Wynn Owen's report, par 187).

[142] Exhibit 3, page 1105 (Ms Hasson's report).

[143] Exhibit 3, page 1106 (Ms Hasson's report, par 1).

[144] Exhibit 3, page 1110 (Ms Hasson's report, par 20), referring to Exhibit 1, page 195 (Ms Lynn's Addendum to Pre-Sentence Report dated 18 December 2007).

[145] Exhibit 3, pages 1111 - 1112 (Ms Hasson's report, pars 25 - 26).

[146] Exhibit 3, pages 1117 (Ms Hasson's report, par 61).

[147] Exhibit 3, page 1118 (Ms Hasson's report, par 67).

[148] Exhibit 3, page 1123 (Ms Hasson's report, par 95).

[149] Exhibit 3, page 1124 (Ms Hasson's report, par 97).

[150] Exhibit 3, page 1129 (Ms Hasson's report, par 127).

[151] Exhibit 3, page 1129 (Ms Hasson's report, par 128).

[152] Exhibit 3, page 1129 (Ms Hasson's report, par 130).

[153] Exhibit 3, pages 1130 - 1131 (Ms Hasson's report, pars 131 - 147, noting that there are no pars 137 - 145 in Ms Hasson's report).

[154] Exhibit 3, page 1131 (Ms Hasson's report, par 148).

[155] Exhibit 3, pages 1134 - 1135 (Ms Hasson's report, par 170).

[156] Exhibit 3, page 1132 (Ms Hasson's report, par 156).

[157] Exhibit 3, pages 1135 - 1136 (Ms Hasson's report, pars 173 - 180).

[158] Exhibit 3, page 1137 (Ms Hasson's report, par 181).

[159] Exhibit 3, page 1137 (Ms Hasson's report, par 182).

[160] Exhibit 3, page 1137 (Ms Hasson's report, par 185).

[161] Exhibit 3, page 1138 (Ms Hasson's report, par 187).

[162] Exhibit 3, page 1139 (Ms Hasson's report, par 192).

[163] Exhibit 3, page 1139 (Ms Hasson's report, par 196).

[165] Exhibit 3, pages 1141 - 1146 (Community Supervision Assessment).

[166] Exhibit 3, pages 1146 - 1150 (Community Supervision Assessment).

[167] Exhibit 3, pages 1151 - 1152 (Community Supervision Assessment).

[168] Exhibit 3, page 1152 (Community Supervision Assessment).

[169] State's submissions, par 94; Respondent's submissions, par 2(g)(i); ts 159 (24 May 2022).

[170] Exhibit 3, page 1202 (Proposed HRSO Management Plan, par 21).

[171] Exhibit 1, pages 177 - 179 (Ms Jelavic's pre-sentence report dated 21 October 2007).

[172] Exhibit 1, pages 190 - 197 (Ms Lynn's psychological report dated 18 December 2007).

[173] Exhibit 1, pages 198 - 202 (Ms Lynn's psychological report dated 4 March 2008).

[174] Exhibit 1, pages 186 - 189 (Ms Righetti's pre-sentence report dated 2 April 2008).

[175] Exhibit 1, pages 331 - 333 (Mr Smith's parole assessment report).

[176] Exhibit 1, pages 207 - 213 (Mr Holland's pre-sentence report dated 7 July 2010).

[177] Exhibit 1, pages 214 - 222 (Ms Martin's psychological report dated 7 July 2010).

[178] Exhibit 1, pages 334 - 337 (Ms Clements' parole assessment report dated 4 November 2010).

[179] Exhibit 1, pages 224 - 230 (Ms Hasson's pre-sentence psychological report dated 14 November 2012).

[180] Exhibit 1, pages 338 - 345 (clinical assessment report dated 2 September 2013).

[181] Exhibit 2, pages 390 - 395 (Ms Webster's post-sentence supervision order report dated 9 November 2021).

[182] Exhibit 1, page 228 (Ms Hasson's Pre-Sentence Psychological report dated 14 November 2012); ts 136 (24 May 2022); as also referenced by Dr Wynn Owen, see Exhibit 3, page 1183 (Dr Wynn Owen's report, par 110).

[183] State's submissions, pars 184 - 185.

[184] Respondent's submissions, par 2(l).

[185] Exhibit 2, pages 396 - 399 (Post-sentence supervision order).

[186] The reporting obligation is in terms similar to HRSO Act s 30(2)(a).

[187] The notification obligation is in terms similar to HRSO Act s 30(2)(c), although under a supervision order, notice would be given 2 days before the change.

[188] The comply with lawful orders or directions obligation is in terms similar to HRSO Act s 30(2)(d).

[189] In terms similar to proposed additional supervision order condition 41.

[190] In terms similar to proposed additional supervision order condition 18.

[191] In terms similar to proposed additional supervision order condition 54.

[192] In terms similar to proposed additional supervision order conditions 14 - 16.

[193] In terms similar to proposed additional supervision order conditions 8 and 9.

[194] In terms similar to proposed additional supervision order condition 5.

[195] See the Sentence Administration Act s 74G(1)(b) and s 74G(1)(c) - (e).

[196] Sentence Administration Act s 74I(1).

[197] Exhibit 3, pages 1186 - 1187 (Dr Wynn Owen's report, pars 133 - 136).

[198] See [132], [135], [163] and [167] above.

[199] Exhibit 3, page 1136 (Ms Hasson's report, par 178); Exhibit 3, page 1196 (Dr Wynn Owen's report, par 183); ts 102, 128 (24 May 2022).

[200] The State of Western Australia v Garlett, cited with approval in The State of Western Australia v D'Rosario (No 3) [22]. See also Condon v Pompano Pty Ltd [23], cited in The State of Western Australia v Garlett [136(b)], [126].

[201] See [132], [135], [163] and [167] above. See also Exhibit 3, pages 1130 - 1131 and 1135 - 1136 (Ms Hasson's report, pars 131 - 147 and 173 - 180); Exhibit 3, pages 1193 - 1193 (Dr Wynn Owen's report, pars 167 - 177).

[202] The State of Western Australia v Garlett, as noted by Quinlan CJ in The State of Western Australia v D'Rosario (No 3) [21].

[203] Exhibit 3, pages 1150 - 1151 (Community Supervision Assessment).

[204] HRSO Act s 48(1), as noted in Woods v Director of Public Prosecutions (WA) [2008] WASCA 188; (2008) 38 WAR 217; the State's submissions, par 206; and the respondent's submissions, par 4.

[205] Director of Public Prosecutions (WA) v Decke [14]; the State's submissions, par 207; and the respondent's submissions, par 4.

[207] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52]; The State of Western Australia v West [No 6] [2019] WASC 427 [29]; The State of Western Australia v ZSJ [2020] WASC 330 [56] - [58]; The State of Western Australia v Patrick [No 4] [2020] WASC 48 [109] - [111]; and The State of Western Australia v MAM [165].

[209] State's submissions, par 2; ts 76, 173 (24 May 2022).

[210] Respondent's submissions, par 5.

[217] Exhibit 3, page 1078 (Ms Lynn's Addendum to Pre-Sentence Report dated 18 December 2007); and Exhibit 3, page 1111 (Ms Hasson's report, par 24).

[218] Exhibit 3, page 1177 (Dr Wynn Owen's report, par 73); Exhibit 3, page 1127 (Ms Hasson's report, par 116); ts 114 - 115, 134 (24 May 2022).

[221] Exhibit 3, page 1197 (Ms Hasson's report, par 187(iv)).

[222] Exhibit 3, page 1140 (Ms Hasson's report, par 198(i)).

[228] Exhibit 6 (Updated Community Supervision Assessment, page 2).