THE STATE OF WESTERN AUSTRALIA -v- PENDLETON [2024] WASC 492 (29 November 2024)

1. The State's application was made pursuant to s 35 of the Act, for a restriction order to be imposed in relation to the respondent under s 48 of the Act.
2. The respondent is a serious offender under custodial sentence, as that phrase is defined in s 3 of the Act.
3. As noted above, pursuant to s 46(1) of the Act, the primary purpose of the preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender.
4. A 'high risk serious offender' is a person in relation to whom the court is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the person in order to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.[2]
5. Each of the index offences is a 'serious offence' within the meaning of the Act.[3]
6. A determination that a person is a 'high risk serious offender' requires proof to a high degree of probability. However, at the preliminary hearing stage, the threshold test is lower. At a preliminary hearing, a judge does not need to be satisfied that a restriction order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made. To say that something might occur is to say that it is possible. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition. For there to be 'reasonable grounds' for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.[4]

1. In support of the application, the State relied upon the affidavit of Tanya-Maree Hollaway affirmed 12 November 2024 and the affidavit of Ms Heather Applin affirmed 19 November 2024. Ms Hollaway's affidavit annexes the respondent's criminal history and several reports and assessments in relation to him. Ms Applin's affidavit relates largely to the potential release into the community of the respondent.

1. On 24 July 2018, the respondent was released after serving 9 years and 8 months' imprisonment for sexual offending. On his release, he was subject to a post-sentence supervision order (PSSO).
2. About three weeks after his release, the respondent met and commenced a relationship with a woman, who was the mother of a female child who was 4 years old. He regularly stayed at the woman's house and moved in with the woman in December 2018, contrary to the conditions of his PSSO.
3. The offending took place while the child was aged between four and five, and consisted of the respondent performing indecent acts on the victim or procuring her to do indecent acts. He had the victim touch her vagina over and under her underwear, touched the victim on her buttocks over her underwear, placed a vibrator near the victim before taking a photograph, wore an adult sized nappy in the victim's presence while she slept, placed a nappy on the victim's buttocks while she slept, placed his penis near the victim's hand and face, and took photographs of the victim while she was naked in the shower and while she was lying down with her legs spread. In every instance of offending, the respondent took photographs.

1. On 19 June 2009, the respondent pleaded guilty to four charges of possession of child pornography, 20 charges of indecent dealing with a child under 13 years, 22 charges of indecently recording a child under 13 years, two charges of procuring or encouraging a child to engage in sexual behaviour, and one charge of sexual penetration of a child under 13 years.
2. The offending all occurred between November 2007 and September 2008. The victims of these offences were the two children of the respondent's then girlfriend, and a third child, who was the friend of one of the other two children. At the time of the offending, the victims were aged between 18 months and 5 years of age.
3. The offending involved the respondent performing indecent acts on the victims or procuring them to do indecent acts. This conduct included touching the victim's vagina while she was asleep, causing the victim to bend over and touch her vagina in a sexual manner, exposing his penis while he was wearing a child's nappy, exposing his penis to the victim or having the victim expose his penis, touching the victim inappropriately on her breast, lower stomach, exposed bottom and groin, kissing the victim's lower stomach area while she was asleep, pulling the victim's bottom cheeks apart with his hands to expose her vagina, having the victim sit on his lap with her legs spread in a sexually explicit pose (sometimes while he had his penis exposed), standing over the victim with his penis exposed and touching himself in view of the victim, smacking the victim's bottom with his erect penis, and attempting to put his penis in the victim's mouth. On one occasion, the respondent placed his erect penis between the victim's legs and moved it inside her vagina before removing it and masturbating.
4. Either a recording or photograph, or both, were taken of every instance of offending. The recording and images were discovered on a stolen laptop or hard drive in the respondent's possession. Tens of thousands of other images and videos of child exploitation material were found on the stolen laptop, hard drives or memory cards in the respondent's possession. There were more than 48,000 images and movie files, including images of sexual penetration of children by adults and bestiality involving children.

1. Since being sentenced for the index offences, the respondent has been convicted of six charges of breaching a family violence restraining order, one charge of obstructing a public officer, four charges of failing to comply with reporting obligations and four charges of breach of a PSSO. This offending included the respondent having unsupervised contact with children under the age of 16, reporting an address he did not reside at as his residential address, not disclosing email, social media accounts and phone numbers which were used to contact a person protected by a restraining order, and contacting a person protected by a restraining order using the prison phone system.
2. Between 2018 and 2019, the respondent was convicted of a number of offences, including five charges of breaching a PSSO, two charges of failing to comply with reporting conditions, one charge of possessing drug paraphernalia, breaching a family violence restraining order and one charge of assaulting a public officer.
3. In respect of the 2008 offending, the respondent was also convicted of two charges of possessing or copying an indecent or obscene article and one charge of possessing stolen or unlawfully obtained property. The respondent was also convicted in 2008 of breaching a violence restraining order and aggravated assault occasioning bodily harm, involving the mother of the children who were the victims of the 2007 and 2008 offending.

1. While serving his most recent term of imprisonment, the respondent has been found guilty of a number of prison charges including use of an illicit drug, use of a drug other than as prescribed, disobeying rules or orders and insubordination or misconduct.[5]
2. The respondent was denied parole on 8 June 2023 as a result of unmet treatment needs, poor prior response to community supervision and the assessment that he is a high risk of re-offending.[6]

1. The respondent is 38 years of age. He is the eldest of two sons born to his parents who separated when he was about seven. He and his brother stayed with their father.
2. In 2009, he described his parents' relationship as being stable with no violence or substance abuse, and reported a good relationship with his parents.
3. The respondent attended primary school but by the end of year two was regularly in trouble for being disruptive. He often changed schools due to his father's employment and his school behaviour worsened. He lived with his mother for a time for specialised schooling, but eventually was asked to leave school at the end of year eight due to his disruptive and defiant behaviour.
4. Meanwhile, the respondent's parents had resorted to punishing and physically disciplining the respondent to deal with his behaviour. Eventually, he left home and his parents refused to have him back. He was then brought under the care of Child Protection.
5. Prior to leaving home, the respondent was exposed to images of child exploitation material on his father's computer, which he was fixing. He acknowledged feeling aroused by the images. His father was later arrested for sexual offending which resulted in a lengthy term of imprisonment.
6. The respondent has described his foster homes as generally positive, although there were occasions when he was neglected. He continued to exhibit negative behaviours and eventually came to the attention of police.
7. His first experience of sexual intercourse occurred when he was 13. Later, he would masturbate to explicit sexual imagery of what he claimed was of similar aged peers.
8. He has a limited employment history with experience in freelance work repairing computers and mobile phones.
9. He was diagnosed with attention deficit hyperactivity disorder as a child and suffered from a growth disorder which affected his stature. As an adult, he reports experiencing back and hand pain.
10. The respondent has disclosed an entrenched history of substance abuse, beginning at age 13 with cannabis. He used MDMA at age 14. By age 16 he was using amphetamines, including intravenously. He has maintained use of these substances as well as abusing alcohol throughout his life.
11. He has previously reported a childhood marred by physical and emotional abuse from his parents, somewhat contrarily to his reports in 2009. He entered the care of Department of Child Protection and Family Support as a young teenager. He has little, if any, contact with his mother, brother and father.

1. The respondent has undergone a number of evaluations over the years including psychological and other assessments. I have read them all. I do not propose to detail them all here.
2. He has in the past admitted being aroused by images of child exploitation and masturbating to them. He also acknowledged fetishes such as wearing women's clothing and nappies. It has been observed that his offending closely resembles that of his father. The respondent maintains he was never abused by his father, but it is apparent that he was exposed to his father's offending by the images and recordings his father collected.
3. In 2009 the respondent was assessed as having extensive treatment needs and requiring long term intervention, which he then indicated he was willing to undertake. He was assessed as being a high risk of re-offending.[7]
4. In September 2016, Dr Jane Sampson, Clinical and Forensic Psychologist, assessed the respondent to be a very high risk of re-offending. Dr Sampson noted the most significant areas of concern for the respondent were his social influences, capacity for relationship stability, impulsivity, sexual preoccupation and deviant sexual preference. Other areas of concern included his emotional identification with children, hostility toward women, lack of concern for others, poor problem solving skills and sex as coping. Dr Sampson noted that the respondent expressed a strong attachment to cannabis use in the future.[8]
5. The respondent is recorded as having told authors of Victim-Offender Mediation Unit Reports in 2023 and 2016, he did not think his offending would have caused the victims any trauma as he did not believe they knew what was happening.[9]
6. Cinzia Zuin, psychologist, assessed the respondent in November 2021.[10] The respondent at that time refused to discuss his developmental history, family background or offending history.
7. In discussing his failure to comply with reporting obligations in the latter part of 2018, the respondent said he had a feeling he would be sent back to prison and decided 'that wasn't happening' as he had bought tickets to a concert, and he was not going to miss that. He rationalised the fine he received for breaching the conditions was 'worth it' because he had the 'best time' and commented 'when I get sick of people telling me what to do, I just do what I want.'
8. Ms Zuin opined that the respondent feigned ignorance of the condition of his PSSO specifying he could not have unsupervised contact with a child and expressed the view that breaches in relation to social media accounts, email accounts, and phone numbers were minor. He attempted to rationalise his behaviour to the author, externalising blame to the authorities.
9. The respondent told Ms Zuin that his plan to see his biological child was the only reason he remained in Perth after his release in 2018, otherwise he planned to move interstate where a PSSO could not be enforced.
10. The respondent candidly admitted using illicit drugs and medication prescribed to other prisoners in prison both during his current term of imprisonment and previous terms of imprisonment. He maintained his 2016 attachment to future cannabis use.
11. Ms Zuin concluded that the respondent lacked insight and self-awareness and described him as an intelligent man who attempted to manipulate circumstances to suggest he is a victim of the system and was set up to fail. Further, she suggested the respondent had limited regard for rules, does what he wants as he sees fit and has little, if any, remorse.
12. Ms Zuin opined the following factors commonly associated with risk of re-offending have strong relevance to the respondent and suggest a risk of re-offending in a general manner, including with regard to compliance with orders, conditions and reporting obligations, in addition to a risk of sexual re-offending that is: a history of antisocial behaviour, antisocial personality pattern, antisocial cognition and antisocial associates. Ms Zuin concluded by noting unless there was a marked change in the respondent's attitude, including a greater level of responsibility and accountability for his behaviour, strong doubt arises regarding his potential compliance with conditions and reporting obligations in the future.
13. During his previous period of supervision in the community, subject to the PSSO, the respondent reported as directed for supervision and psychological counselling, attending 20 sessions, however his compliance deteriorated over the Christmas period in 2018 and he disengaged until March 2019. He attributed this period of non-compliance to using methamphetamine and cannabis daily in order to mask his negative emotions pertaining to his relationship breakdown with his ex-partner, also having no contact with his daughter and experiencing accommodation issues. He attended urinalysis on 28 occasions, provided eight samples positive to cannabis, one which was positive to methylamphetamine, and two void samples.[11]
14. A Treatment Assessment Report dated 19 December 2023 records that the respondent disclosed to the author of the report that he did not commit sex offences as he 'just took photos', but that he also disclosed paraphilic interest in young female children and nappies. The author concluded the respondent presented as a well above average risk for sexual re-offending and as a very high risk of future generalist offending.[12]

1. In 2011, the respondent completed the Intensive Sex Offender Treatment Program, a 321 hour program addressing the risk, need and responsibility issues associated with offenders at high risk of sexual re‑offence. The author of the program completion report dated 29 November 2011 noted the respondent was observed to gain greater understanding of the factors underlying his offending. However, the respondent did not acknowledge committing the offence of sexual penetration of a child under 13 and made few measurable treatment gains.[13]
2. The respondent also completed the Pathways Program in 2013, and again in 2023. The completion report from February 2023 indicated that the respondent identified a direct link between his substance use and his offending behaviours, that he documented remorse for his offending behaviour and how they had impacted the victims and his relationships. His relapse and recidivism prevention plan focused on remaining free from substance use and detailed how he was going to do that.[14] It is noted similar treatment gains were recorded when the respondent completed the Pathway program in 2013.[15]

1. No suitable accommodation has been confirmed to be available for the respondent upon his release,[16] although, I have been informed today that there are plans which may well come to fruition prior to his release, or at least at the time of his release.

1. The applicant submits that the threshold test has clearly been met. The respondent, in my view, properly conceded as much bearing in mind the low threshold that is involved. There are very clearly reasonable grounds for believing that a court might find the respondent to be a high risk serious offender.

1. Given the respondent's history of disregard for court orders, including restraining orders, post sentence supervision orders and his community reporting obligations, there are significant concerns as to whether the respondent can at this stage be properly managed on a supervision order.
2. In circumstances where no suitable accommodation has yet been confirmed to be available, this is not a matter that I intend to determine today. As discussed with counsel in the course of submissions, what I propose to do is order that the respondent be placed on an interim detention order until the resolution of the restriction order application, or until further order of the court, and that the respondent have liberty to apply at any point where he will seek to submit to the court that an interim supervision order is possible and appropriate.

1. In those circumstances, I make an interim detention order pursuant to s 46(2)(c)(i) of the Act, that the respondent be detained in custody pursuant to an interim detention order until the final determination of the application or for further order the court.

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

[1] High Risk Serious Offenders Act 2020 (WA) s 46(1) (Act).

[2] Act s 7(1).

[3] Act s 3, sch 1 div 1 sub div 3 item 16.

[4] The State of Western Australia v PAS [2020] WASC 405 [20] - [21] (Allanson J); The State of Western Australia v Winder [2021] WASC 65 [16] (Quinlan CJ).

[5] Affidavit of Tanya-Maree Hollaway affirmed 12 November 2024, Annexure C (Hollaway Affidavit).

[9] Hollaway Affidavit, Annexures BF, BK.

[16] Affidavit of Heather Applin affirmed 19 November 2024.