THE STATE OF WESTERN AUSTRALIA -v- RAO [2019] WASC 93 (25 March 2019)

(a) Mr Rao will comply with any reasonable direction of the community corrections officer under whose supervision he is placed; and

(b) Mr Rao will not commit a sexual offence, within the meaning of s 36A of the Evidence Act 1906 (WA).

1. In relation to the former matter, it is significant that when previously the subject of parole supervision, Mr Rao was clearly unable to disclose to his community corrections supervisors the issues that were confronting him, and indeed, failed to comply with his parole conditions. This, in itself, does not augur well, as matters currently stand, for the prospect that Mr Rao will substantially comply with reasonable directions in a community setting.
2. As to the second matter, it should be noted that the condition requires that Mr Rao will not commit a sexual offence, within the meaning of s 36A of the Evidence Act. That definition is broader than the definition of 'serious sexual offence' in the Act. It includes any offence against Chapter XXXI of the Criminal Code, including an indecent assault.
3. This is where, in my view, the real difficulty for Mr Rao arises. In the opinion of Dr Wynn Owen and Dr Wojnarowska, the risk of Mr Rao committing any sexual offence (including an indecent assault) even under supervision is comparable to that which existed when he was last released (and reoffended). This is particularly so given that Mr Rao has only completed one, non-intensive, treatment program 2013 and could not maintain whatever gains had been made from that program.[29]
4. The unfortunate reality is that Mr Rao has essentially remained untreated since that time. I say 'unfortunate' because Mr Rao has now been in custody for a year since his last offence (including almost four months since his sentence expired), with no treatment being provided during that time. This is the case, notwithstanding that all assessments of him, including the program completion report for the Sex Offender Maintenance Program dated 20 April 2017, have identified Mr Rao as having unmet treatment needs.
5. The reason for this lack of any treatment is, as I noted at the beginning of these reasons, that until a person is made the subject of a Division 2 order, they are not eligible for the services of the Department's Forensic Psychology Service. This is apparently so, even where the fact that such services will ultimately need to be provided is obvious.
6. I described this earlier as a Catch-22. And indeed it is.
7. It is, in my view, in the interests of the community, and its protection from offending, that an offender with known treatment needs have those treatment needs addressed before consideration is given to their release under supervision not, as is the case, afterwards. Logically, it might also be thought that the benefits of such treatment might be manifest the sooner the treatment commences. It is not in the interests of the community that the risks of a person such as Mr Rao should stagnate, and potentially worsen, as a consequence of a lack of treatment.
8. It is also, obviously, in Mr Rao's interests that treatment commences as soon as possible.
9. As it is, treatment for Mr Rao cannot commence until I make an order on this application.
10. Mr Rao has expressed a desire for such treatment and I accept that he is sincere in that regard. There is, therefore, some cause for optimism that he will respond positively to individual treatment and that having undergone that treatment will have developed sufficient skills and insight into his offending as to be able to be safely managed in the community. It is, in particular, in the development of insight and self-awareness that Mr Rao requires treatment.
11. Nevertheless, in the absence of such treatment having been commenced, or any evidence as to its efficacy in Mr Rao's particular case, I am unable to be satisfied that the community can be adequately protected by imposing a supervision order. In particular, I am not satisfied, on the balance of probabilities, that, if released on a supervision order, Mr Rao will not commit a further sexual offence.
12. For these reasons, I have decided that I must make an order that Mr Rao be detained in custody for an indefinite term for control, care or treatment. While he is detained he should receive the treatment, and in particular the individual counselling, that he clearly requires.

1. For the above reasons:
   1. I find that Mr Rao is a serious danger to the community, within the meaning of the Act; and
   2. I order that Mr Rao be detained in custody for an indefinite term for control, care or treatment.

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

Research Associate to the Honourable Chief Justice Quinlan

[1] Mr Rao was also charged with an offence of sexual penetration without consent in relation to this victim. That charge was discontinued by the State on 16 April 2018 (Exhibit 1, page 500).

[2] The State of Western Australia v West [2013] WASC 14 [52] (Corboy J).

[3] Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246 [10] (Hall J).

[4] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33] (footnotes omitted) (Beech J).

[5] Section 17(3) and (4) were inserted into the Act by the Dangerous Sexual Offenders Legislation Amendment Act 2017, which commenced operation on 29 March 2018 (i.e. after the application was filed by prior to the Division 1 order made by Jenkins J). In his written Outline of Submissions, Mr Rao accepted that 17(3) and (4) applied to this application. That concession was, in my view, correct (see Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267 (Dixon CJ); Attorney-General's Reference (No 1 of 2004) [2005] TASSC 10; (2005) 152 A Crim R 146).

[6] Including Dr Sam Febbo, psychiatrist, dated 5 November 2011 (Exhibit 1, pages 420-428); Ms Claire Lynn, psychologist, dated 7 November 2011 (Exhibit 1, pages 429-434); Ms Olivia Johnson, Community Corrections Officer, dated 14 November 2011 (Exhibit 1, pages 435-437)

[7] See Exhibit 1, page 725 (paragraph 16.3).

[8] The importance of this was identified by Dr Wojnarowska in her report at [8.3]-[8.5] (Exhibit 1, page 716).

[10] In relation to the victims that were aged between 13 years and 16 years, the respondent was convicted of an offence against s 321(4) of the Criminal Code (20 counts), with the aggravating feature that the victim was under his care, supervision or authority (s 321(8)(b)). As the maximum penalty for these offences was 10 years, they were each 'serious sexual offences' within the meaning of the Act. In relation to the child victims that were of, or over, the age of 16 years, the respondent was convicted of an offence against s 322(4) of the Criminal Code, of indecently dealing with a child under his care, supervision or authority (six counts). As the maximum penalty for these offences was 5 years, they were not 'serious sexual offences' within the meaning of the Act.

[14] Dr Wynn Owen referred to Mr Rao's connections with this young woman as reflecting a parallel with his offending pattern (see ts 45).

[29] The Sex Offender Maintenance Program undertaken by Mr Rao while on parole is not, as Dr Wynn Owen explained, a treatment program.