THE STATE OF WESTERN AUSTRALIA -v- MBW [No 7] [2020] WASC 404 (13 November 2020)

ANNEXURE 1 STANDARD CONDITIONS REQUIRED BY THE ACT

1. Report to a Community Corrections Officer at the place and within the time stated in the order and advise the officer of the person's 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 the person's name, place of residence, or place of employment at least 2 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.

The following conditions incorporate the above standard conditions and are suggested to strengthen and add to the standard conditions required by the Act for the more effective management of the offender in the community.

1. Take up residence at [address] 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.
2. Not leave or remain out of the State of Western Australia without the permission of a Manager of the Department of Corrective Services and, if so permitted, abide by all conditions of such permission whilst absent from the state.

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

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

1. Report to the Officer‑in‑Charge of the Sex Offender Management Squad at the Hatch Building, 144 Stirling Street, Perth, WA, 6000, or other police station if regional, 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 Sex Offender Management Squad or his/her delegate.
2. Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004.
3. If requested, permit Police Officers to enter and search your 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 Officer believes to contravene the conditions of the Order.
4. Remain at your premises and/or vehicle when Police Officers conduct a search under the High Risk Serious Offenders Act 2020.
5. When requested, advise Police of the names of all of your internet service providers, all mobile or landline telephone services used by you and all internet user names or identities used by you.

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

1. Have no contact, directly or indirectly, with the victims of your sexual offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim‑Offender Mediation Unit of the Department of Corrective Services.
2. Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times.
3. Report to a CCO and WA Police any direct or indirect contact with the victims of your sexual offending on the next occasion you report to that person or agency.

1. Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments.
2. Not commit an offence under s 202, s 203, s 204 Criminal Code 1913 (WA).
3. Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996.
4. Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014 and your use is in accordance with the instructions of the provider.

1. Be subject to a curfew, pursuant to section 32 of the High Risk Serious Offenders Act 2020, such that you are to remain at and not leave your approved address as directed by a CCO from time to time.
2. When subject to a curfew under this order, present yourself for inspection at the front door or curtilage of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew.
3. When subject to a curfew under this order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew.

1. Undergo medical treatment, including antidepressant medication or hormonal anti‑libidinal treatment, as directed by the CCO in consultation with a medical practitioner or medical practitioners.
2. Comply fully with any treatment prescribed pursuant to condition 33 and all testing to monitor your compliance with medical treatment and/or anti‑libidinal treatment as directed by a CCO.
3. Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of re-offending and compliance with treatment to the Department of Justice.
4. 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 antidepressant 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.

1. Provide a verbal or written account of your projected daily movements to your CCO and obtain prior approval of your projected movements, as and when directed by your CCO; with exception of the following circumstances:

1. To obtain urgent medical or dental treatment for yourself; 2. For the purpose of averting or minimising a serious risk of death or injury to the respondent or another person;

1. To obey an order issued under a written law (such as a summons) requiring your presence elsewhere;

1. At the direction of a CCO or Police Officer.
2. Maintain a daily diary of your movements, activities and associations if and as directed by the CCO and to present this diary to the CCO and Police Officer upon request.
3. Not enter any residential address in which a female resides or is known to reside, unless authorised in advance by a CCO.
4. Not permit any female to enter any residential address in which you reside, unless the identity of such person is approved in advance by a CCO.
5. Report any unsolicited interaction with females at your residential address to a CCO and the Sex Offender Management Squad at your next scheduled appointment.
6. With the exception of public transport, not enter in or on any vehicle with any female or where a female is present (whether that vehicle is under your control or not), unless the identity of such person is approved in advance by a CCO.
7. Have no contact with any female under the age of 18 years, whether such contact is in person, in writing, by telephone or be electronic means, unless
   1. the contact is authorised in advance by the CCO; the CCO may determine that such contact be supervised at all times by an adult approved in advance by the CCO;
   2. 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 a child to promptly and civilly terminate any inadvertent or uninvited interaction or communication).

1. Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO.
2. Not to possess or purchase or consume or use alcohol.
3. Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place.
4. To provide a valid sample for testing pursuant to condition 46.
5. Not go to or remain at any licensed premises unless permitted or required to do so for the following reasons:

1. For the purpose of averting or minimising a serious risk of death or injury to yourself or another person; 2. For a purpose, and for a duration, approved in advance by a CCO;

1. On the order of a CCO or Police Officer.
2. Not remain in the presence of females who are affected by alcohol, or reasonably ought to know to be affected by alcohol, unless the identity of such person is approved in advance by the CCO.
3. Not remain in the presence of any person who you know to be affected by illicit substances, or reasonably ought to know to be affected by illicit substances, unless the identity of such person is approved in advance by the CCO.
4. Not remain in any place where prohibited drugs are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place.
5. Not enter the premises of, or access the services of, escort agencies or sex workers.
6. Not engage in any telephone communications with prostitutes or sex workers.
7. Not to attend adult sex shops without prior approval of a CCO and not to attend locations which facilitate adult entertainment, including but not limited to: stripping, lap-dancing and pole-dancing.
8. Not to be in possession of any pornographic material in either hard copy or digital form, or not to access or view pornography on the internet.
9. Report at the next contact with your CCO the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship by you with any person.
10. As directed by a CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence a domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.

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

[1] Act, s 2(1)(a).

[2] The term 'commencement day' is defined for the purposes of the provisions contained in pt 10 of the Act (s 122 ‑ s 125) to mean 'the day on which this section comes into operation'. The 'day on which this section comes into operation' is, by virtue of proclamation, 26 August 2020: Act, s 2(1)(c).

[11] The State of Western Australia v MBW [No 6] [2018] WASC 72.

[12] The State of Western Australia v MBW [No 6] [33] ‑ [36].

[14] Dr Wojnarowska and Dr Bannister are 'qualified experts' as defined in s 3 of the Act. Their reports were prepared and obtained pursuant to s 67(1) of the Act and in accordance with s 74 of the Act.

[17] This section of my reasons reproduces what I wrote in The State of Western Australia v Narrier [No 6] [2020] WASC 349 [29] ‑ [52].

[18] The State of Western Australia v ZSJ [2020] WASC 330 [30] ‑ [31].

[19] The respondent is an 'offender' for the purposes of the relevant provisions of the Act: Act, definition of 'offender' and 'serious offender under restriction' in s 3.

[20] The relevant date for the purposes of s 64(2)(a) and s 64(3) is 25 October 2020, the continuing detention order having commenced on 25 October 2019 upon the expiration of the sentence of 3 years and 4 months imprisonment imposed for the aggravated indecent assault offence committed by the respondent on 25 June 2016: ts 3.

[22] The State of Western Australia v West [No 6] [2019] WASC 427 [21]; The State of Western Australia v ZSJ [44].

[23] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [28]; The State of Western Australia v West [No 6] [24]; The State of Western Australia v ZSJ [47].

[24] The State of Western Australia v West [No 6] [24]; The State of Western Australia v ZSJ [47].

[25] Italiano v The State of Western Australia [2009] WASCA 116 [46]; The State of Western Australia v Newland [2018] WASC 344 [12]; GBT v The State of Western Australia [2019] WASCA 40 [21]; The State of Western Australia v West [No 6] [22]; The State of Western Australia v ZSJ [45].

[26] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63]; GBT v The State of Western Australia [21]; The State of Western Australia v West [No 6] [22]; The State of Western Australia v ZSJ [45].

[27] Director of Public Prosecutions (WA) v Williams [63] ‑ [64]; Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14]; The State of Western Australia v Newland [21]; The State of Western Australia v West [No 6] [26]; The State of Western Australia v ZSJ [51].

[28] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33]. Also adopted in The State of Western Australia v Narkle [2019] WASC 404 [13] and The State of Western Australia v West [No 6] [26].

[29] The State of Western Australia v Latimer [2006] WASC 235 [25]; Director of Public Prosecutions (WA) v Decke [15]; The State of Western Australia v Newland [22]; The State of Western Australia v West [No 6] [27]; The State of Western Australia v ZSJ [52].

[30] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52]; The State of Western Australia v Narrier [No 6] [51]; The State of Western Australia v West [No 6] [29]; The State of Western Australia v ZSJ [56] ‑ [58].

[31] The State of Western Australia v Paul Douglas Allen also known as Paul Alan Francis Deverell [No 5] [2019] WASC 359 [7] ‑ [11].

[32] Director of Public Prosecutions (WA) v GTR [62].

[33] The State of Western Australia v MBW [No 6] [6].

[34] The State of Western Australia v MBW [No 6] [9] ‑ [11].

[112] Director of Public Prosecutions (WA) v GTR [178].

[118] ts 44. In giving her evidence relating to the information held by CPFS, Ms Cashmore, in the absence of objection by the respondent, made reference to the contents of the Cassam email.

[121] I note that it was clear from the respondent's counsel's closing submissions at the review hearing that despite Dr Wojnarowska's evidence to the effect that if the respondent agreed to resume anti‑libidinal treatment her opinion would be that the risk that he presents to the community could be adequately managed by releasing him on a supervision order with appropriate conditions, his position remained that he would not agree to resuming such treatment.