THE STATE OF WESTERN AUSTRALIA -v- RAO [2021] WASC 476 (22 December 2021)

3 On 2 January 2018, the State made an application for Mr Rao to be declared a dangerous sexual offender under the Dangerous Sexual Offenders Act 2006 (WA) (the DSO Act). On 19 April 2018, Jenkins J heard the div 1 hearing and made orders under div 1 of the DSO Act. Her Honour was satisfied that there were reasonable grounds for believing that the court might find that Mr Rao was a serious danger to the community and fixed a date for the hearing of the div 2 application. Her Honour also ordered, pursuant to s 14(2)(b), that Mr Rao be detained in custody until the determination of the application.

4 On 25 March 2019, Quinlan CJ made orders declaring that Mr Rao was a dangerous sexual offender under div 2 of the DSO Act. Quinlan CJ determined that Mr Rao was to be detained in custody for an indefinite term for control, care or treatment. Quinlan CJ determined that he was satisfied to a high degree of probability that there was an unacceptable risk that, if Mr Rao were not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence. Quinlan CJ observed that Mr Rao did not, ultimately, contend otherwise.[2] Quinlan CJ observed that, regrettably, Mr Rao had not received the necessary treatment to address his ongoing issues regarding his propensity to reoffend.

5 Quinlan CJ made the finding that there was a clear pattern to Mr Rao's offending behaviour. That pattern involves sexual offending against adolescent females, encountered by Mr Rao in a work or social situation, who are groomed for a period of time before offending.[3] The age range of the victims appears to be females between 14 to 17 years.

6 On 25 March 2020 and 23 April 2020, the first annual review of Mr Rao's detention, pursuant to s 29 and s 31 of the DSO Act, was heard before Fiannaca J. His Honour determined that Mr Rao should continue his treatment in the community to consolidate his gains and that, with psychological treatment in place, it was more likely than not that Mr Rao would substantially comply with the standard conditions, and with other conditions of a supervision order, and that therefore the risk would be adequately managed in the community by the imposition of supervision order. Therefore, Mr Rao was released on a supervision order, pursuant to s 68(1)(b) of the HRSO Act, for a period of five years commencing on 11 January 2021.[4]

7 The alleged conduct upon which the applicant relies in support of the contention that Mr Rao has contravened the supervision order comprises, substantially, of the same allegations and material facts, the subject of seven contravention criminal charges. The State also relies upon 'other concerning behaviours' which are outlined in the affidavit of Ms Maynard, officer of the Department of Justice, affirmed 16 December 2021.[5]

8 Mr Rao pleaded guilty to seven charges of contravening a supervision order contrary to s 80 of the HRSO Act. The relevant details of the seven charges are outlined in the affidavit of Mr Meertens, legal practitioner, affirmed 15 December 2021.[6]

9 On 19 March 2021, Mr Rao pleaded guilty to contravening condition 30 of the supervision order and a written lawful instruction by failing to record in his daily diary that he had contact with children over several days in March 2021 (MC PER 12263/2021). Mr Rao attended a meeting with his CCO and disclosed the contact. Further, Mr Rao contacted the police and reported the same interactions. There is no suggestion that that contact involved any physical touching of the children who were in his presence. For that offending, Mr Rao received a $1,000.00 fine.

10 Further, on 17 December 2021, Mr Rao was sentenced in respect of six charges, upon his own plea, that he contravened the supervision order and a written instruction contrary to s 80(1) of the HRSO Act. The offending comprised first, that he failed to record in his daily diary his attendance at a neighbour's address at which he stayed for approximately half an hour during which time he had a coffee and a conversation with the residents (MC PER 12468/2021). The gravamen of that offending is not attending the address but failing to record the attendance in his daily diary. Second, that Mr Rao failed to record in his daily diary that he attended a Kentucky Fried Chicken outlet for five minutes in July 2021 (MC PER 32469/2021). The gravamen of that offending is not attending the location but failing to record the attendance in his daily diary.

11 Third, that Mr Rao failed to record in his daily diary that he attended at his mother's address for the purpose of her surprise birthday party. There were approximately 10 guests present who were friends and relatives of the respondent's mother (MC PER 32470/2021). The gravamen of that offending is not attending the address and meeting the persons attending his elderly mother's birthday party, but failing to record the attendance in his daily diary.

12 Fourth, that Mr Rao attended a neighbour's home at which location a five‑year‑old child was in attendance. During that meeting with the neighbour he said 'hello' to the child (MC PER 32471/2021). There is no suggestion by the prosecution that the interaction involved anything other than Mr Rao uttering the word 'hello' to the child, in the presence of the child's mother. Further, on another occasion, he allowed his dog to be patted by the adult mother with the child (MC PER 32471/2021).

13 Fifth, that Mr Rao failed to report at his next contact with his CCO that he had the telephone number of an adult neighbour recorded in his mobile telephone. Therefore, Mr Rao had not met the requirement that he must inform his CCO of the formation of any friendship with any person (MC PER 32472/2021). Sixth, that Mr Rao failed to provide details of his contact with a child under the age of 18 when he attended his neighbour's property for half an hour and had a coffee (MC PER32473/2021). Mr Rao voluntarily disclosed to his CCO that he attended his neighbour's address and that a child was present. The child appears to be the same five‑year‑old child to whom Mr Rao said the word 'hello'. The learned magistrate imposed fines in respect of the six charges totalling $1,000.00.

14 In respect of 'other concerning behaviours', Ms Maynard outlines that the respondent disclosed contact with children in March 2021 and June 2021, being two separate occasions; one related to a young female at a shopping centre and the second relating to a neighbour's child. I note that Mr Rao disclosed the contact which he was required to do. Mr Rao, therefore, diligently met the requirements of the supervision order.

15 Further, it was contended that, at a shopping centre, the respondent was observed to pick the youngest checkout operator and was described by an observer as being 'over friendly'. It is necessary that I make these observations concerning this contention. There is absolutely no particularisation in respect of this allegation. I am unable to discern what is meant by the 'youngest operator', given that the relative ages of the other respective operators are not known. Further, what is meant by being too friendly when dealing with an operator at a shopping centre? There is no contention of any physical contact nor any evidence concerning what was discussed. Further, there is no contention that Mr Rao was not permitted to enter the checkout area. In short, the contention is lacking precision. I am left speculating whether Mr Rao just went to a checkout that had the shortest line.

16 In addition, Ms Maynard expressed the opinion that there are non‑compliance issues, being that Mr Rao appeared to be deliberately omitting information regarding new friendships and relationships and disengaging during conversation. Ms Maynard referred to one occasion in which Mr Rao stated that 'he wanted to take back control' and that he did not wish to speak. Further, Ms Maynard states that on 29 October 2021 at Hakea Prison, she formed the opinion that Mr Rao was hostile and combative during an interview. Ms Maynard stated that Mr Rao contended that she was the cause for the current breaches and that that supported a finding that there had been no shift in his attitude and raises concerns regarding his ability to comply with the supervision order obligations if released.

17 Ms Maynard also outlines that between 11 January 2021 and 3 May 2021 Mr Rao engaged in particularised acts that contravened the supervision order but were not the subject of contravention action. First, being that Mr Rao failed to enter the addresses of his movements between 11 January 2021 and 19 January 2021. A written warning was issued. Second, that between 25 March and 26 March 2021, Mr Rao failed to record two movements where he walked his dog up the street. No further action was taken in respect of this, but Mr Rao was told that he must record the occasions when he walks his dog. Third, that between 12 April 2021 and 3 May 2021, Mr Rao failed to record movements comprising that when he walked his dog he did not record his arrival and departure time. A written warning was issued. In addition, Mr Rao's mobile telephone was used by his brother at which time an application was added, deleted and added again. A warning was given.

18 Further breaches included that he permitted his brother to access his 'myGov' account. Mr Rao's brother reported that access pursuant to the terms of the supervision order. On another occasion one photograph was observed in the recycle bin of Mr Rao's mobile telephone device which indicated that Mr Rao had deleted an image without approval. A written warning letter was issued.

19 A further contention is that Mr Rao entered into a geographical exclusion zone, being Northbridge, for three minutes contrary to condition 49 of the supervision order. There is no contention that Mr Rao undertook any nefarious activity during the three minutes that he entered the Northbridge area.

20 I received from Mr Rao a written report of Dr Mandy Vidovich, neuropsychologist, dated 14 December 2021. Dr Vidovich outlined the previous neuropsychological assessment of Mr Rao conducted in 2018. Dr Vidovich stated the following in respect of the 2018 assessment.[7]

a) At the time of his evaluation in 2018 (as per the report dated 08/10/2018), Mr Rao had no history of major psychiatric illness or issues with substance abuse. Academically, it was evident that he had a background of learning and academic difficulties and limited to no High School education. The majority of his employment years were spent driving trucks (i.e. semi-trailers; road trains).

b) Inspection of his neuropsychological profile revealed Mr Rao to be a man of Borderline to Low Average intellect. There were indications of reduced attentional capacity, with difficulty sustaining attention and mentally manipulating novel information in mind. At least a mild degree of cognitive and visuo-motor slowing was also evident, together with consistent indications of executive dysfunction. The latter was characterised by reductions in planning, organisation, reasoning, concept formation, inhibition, and mental flexibility. Impairments in aspects of his expressive language skills, literacy and numeracy, were consistent with the known academic history, and his Low Average to Average nonverbal abilities were considered to be broadly preserved. Learning and memory functions were also intact.

c) Mr Rao's test performances were considered reflective of reductions in attentional and executive abilities, and in keeping with a subcortical pattern of dysfunction in terms of processing inefficiencies. At that stage, the attentional and executive impairments were considered likely to influence his capacity to participate in treatment programs, shift/alter his perspective and integrate/adapt newly learnt information across alternate settings and frameworks. He was also observed to have difficulty managing multiple trains of thought, consistently applying strategy, and responding to feedback with respect to altering his behaviour. Further investigations were recommended, together with review neuropsychological assessment to monitor for the progressive nature of the observed deficits on testing.

21 Dr Vidovich examined Mr Rao in 2021, during multiple appointments, undertaking tests with extra time needed due to Mr Rao's slowed input. Dr Vidovich stated that Mr Rao attempted all tasks and that there were no concerns that he was deliberately trying to distort his test performance or malinger impairment. A similar test to the test utilised in 2018 was administered for comparative purposes.

22 Dr Vidovich stated that Mr Rao's neuropsychological profile was then compared to his profile in 2018. Dr Vidovich determined that there was no evidence of decline in Mr Rao's test performance during the intervening period. Rather, Mr Rao's results were either stable, or marginally improved in some areas. More specifically, there was no indication of progressive deterioration in his memory. Dr Vidovich stated that there was continued vulnerability in Mr Rao's attentional and executive abilities and in his performance in these domains contributed to some of the variability across Mr Rao's profile. Further, Dr Vidovich stated that impairment was noted with aspects of Mr Rao's planning, organisation, problem solving and mental flexibility.[8]

23 Dr Vidovich stated that Mr Rao's deficits in executive functioning undermine his memory in day to day life, for the reason that he is likely to be more prone to distractions on the outside, having difficulty managing multiple task requirements, and displaying poor planning, organisation and problem solving skills. Further, when these deficits are coupled with his impaired literacy (including poor reading, comprehension and writing skills), the diarising component of his responsibilities is likely to be an onerous cognitive task and to be vulnerable to error. Further, symptoms of anxiety and stress will further compound these issues.[9]

24 The State brings the application under ss 53 and 56 of the HRSO Act. Section 53 of the HRSO Act provides:

State may seek orders

(1) This section applies to -

(a) an offender who is brought before the Supreme Court under a warrant issued under section 51(3) or 56(7)(d); and

(b) an offender who is charged with an offence under section 80(1).

(2) In relation to the offender, the State may apply for -

(b) an order for the offender to be detained in custody while proceedings on the application for an order under section 55 are pending.

(3) The application must state what order is sought under section 55.

25 Section 56 of the HRSO Act, relevantly, provides:

(1) This section applied if an offender who is subject to a supervision order is before the Supreme Court and proceedings on an application made under section 53 in respect to the offender are pending (the pending proceedings).

(2) The court may at any time in the pending proceedings -

(a) if the offender is detained in custody, order the offender to be released, subject to subsection (3); or

(b) if the offender is not detained in custody, order the offender to be detained in custody.

(3) The court cannot order the offender to be released unless it is satisfied on the balance of probabilities that -

(a) releasing the offender is justified by exceptional circumstances; and

(b) the offender will substantially comply with the standard conditions of the supervision order, including any amendments to the standard conditions made under subsection (7)(b).

(4) The onus of proof as to the matter described in subsection (3)(b) is on the offender.

26 The term 'exceptional circumstances' used in s 56(3) is not defined in the HRSO Act. The term should therefore be given its ordinary meaning. Accordingly, exceptional circumstances are circumstances that are unusual, out of the ordinary, in some way special, or an exception to the general trend of cases.

27 As to the phrase 'substantially comply', this was considered by Fiannaca J in Director of Public Prosecutions (WA) v Hart,[10] in the context of contravention proceedings. I apply the reasoning of Fiannaca J.

28 An issue that arises for determination is whether it is necessary for Mr Rao to establish exceptional circumstances to justify his release or whether the onus is on the State to establish that Mr Rao be detained pending the contravention proceedings. Mr Rao was not brought before the Supreme Court under a warrant issued under s 51(3) or s 56(7)(d) of the HRSO Act. Rather, the State specifically relies upon s 53(1)(b) of the HRSO Act. That is, at the time the contravention application was made, Mr Rao was charged with an offence under s 80(1) of the HRSO Act which were dealt with in the Magistrates Court. Mr Rao was not detained in custody under the HRSO Act. Further, his criminal charges, having been dealt with on 17 December 2021, meant that Mr Rao voluntarily attended court for the hearing of this application. Accordingly, the interaction of s 53 and s 56 of the HRSO Act arises for consideration.

29 Quinlan CJ considered the relevance of s 56 of the HRSO Act to an application under s 53 of the HRSO in The State of Western Australia v Slater [No 2] stating: [11]

The present application also points up another issue, which is the possible application of ss 56(2) and (3) of the Act to this case, and relationship of those provisions to s 53(2)(b).

Sections 56(2) and (3) provide:

(2) The court may at any time in the pending proceedings -

(a) if the offender is detained in custody, order the offender to be released, subject to subsection (3); or

(b) if the offender is not detained in custody, order the offender to be detained in custody.

(3) The court cannot order the offender to be released unless it is satisfied on the balance of probabilities that -

(a) releasing the offender is justified by exceptional circumstances; and

(b) the offender will substantially comply with the standard conditions of the supervision order, including any amendments to the standard conditions made under subsection (7)(b).

An issue which arises in this case is whether the requirement for exceptional circumstances in s 56(3) is engaged in relation to the State's application. That, in turn, depends upon whether s 56(2)(a) is engaged.

In that regard, the first question is whether Mr Slater is 'detained in custody' within the meaning of s 56(2)(a).

Prima facie, in my view, 'detained in custody', within the meaning of s 56, means detained pursuant to the provisions of the Act. Section 56(2)(a) cannot be construed as providing this Court with a general dispensing power to release persons who are otherwise in custody, either as sentenced prisoners or on remand for other offences. In the context of pt 4 div 5 of the Act, in my view, the expression 'detained in custody' would ordinarily apply to a person who is in custody as a consequence of having been arrested pursuant to a warrant issued under s 51 of the Act in relation to a suspected or anticipated contravention of a supervision order. An order of the Court would be necessary to 'release' such a person from custody, and so s 56(2)(a) would apply - including the requirements of s 56(3).

Similarly, a person detained pursuant to an order of the Court made under s 53(2)(b) of the Act would be 'detained in custody' within the meaning of s 56(2)(a).

30 Accordingly, in The State of Western Australia v Slater [No 2], Quinlan CJ held that given that the respondent was not in custody, for the reason that the respondent was not brought before the court pursuant to a warrant under s 51 of the HRSO Act, then s 56(3) had no application. For that reason, the requirement in s 56(3) that there be exceptional circumstances did not apply. The State accepted that the reasoning of the Chief Justice in The State of Western Australia v Slater [No 2] applies in respect of the present application.

31 I respectfully agree with the reasoning of the Chief Justice regarding the proper construction of ss 53 and 56 of the HRSO Act. Mr Rao has not been in custody under the HRSO Act. The State did not make an application to a magistrate for a warrant to arrest and to take Mr Rao into custody to be brought before the court. Rather, Mr Rao was charged with offences under s 80(1) of the HRSO Act. On 17 December 2021, Mr Rao pleaded guilty to the six offences and the learned magistrate imposed fines. Mr Rao voluntarily attended court today. He was not in custody and not subject to any warrant or any other order under the HRSO Act (or any other Act) requiring his attendance. The State's application is that Mr Rao be detained in custody under s 53(2)(b) while the contravention proceedings under s 55 are pending. Accordingly, s 56(3)(a) has no application in respect of Mr Rao for the reason that Mr Rao is not in custody. Therefore, for that reason, it is not necessary that the release of Mr Rao be justified by exceptional circumstances. Rather, the State must establish that the protection of the community against the risk of Mr Rao committing a serious offence under the HRSO Act requires that he be detained.

32 I now turn to the assessment of whether Mr Rao should be detained in custody until the determination of the contravention proceedings. I am not satisfied, on the basis of the alleged contraventions that I have outlined, that the State has established that Mr Rao should be detained pending the contravention proceedings. I am satisfied that the risk that Mr Rao may commit a serious offence as defined under the HRSO Act may be adequately protected against by the supervision order. I have made this determination for the following reasons.

33 First, the particulars of the conduct that the State relies upon in the contravention proceedings, if established, would not necessarily result in a continuing detention order under the HRSO Act. I have significant doubt as to whether I would order detention should the contravention proceedings be conducted on the information that I have received for the purpose of this application under ss 53 and 56 of the HRSO Act. However, I acknowledge that at this juncture the court has not received any further reports from any treating psychologist or psychiatrist. The State may, at the contravention hearing, rely upon further evidence.

34 Second, Mr Rao has engaged and substantially met the requirements of the supervision order including self-reporting possible breaches. Third, the alleged breaches do not involve any offending of a sexual nature nor of a violent manner. The charges are solely arising under s 80(1) of the HRSO Act. Fourth, the contravention charges involving children involve very young children of adults known to Mr Rao. A most significant point is that Mr Rao's reoffending pattern and the risk of that reoffending is in respect of adolescent girls, between the ages of 14 and 17, and not young children. Fifth, the supervision order imposes a strict regime with the result that Mr Rao will continue to be subject to supervision with the understanding that his acts will be carefully scrutinised. Sixth, the cognitive decline of Mr Rao, as outlined by Dr Vidovich, may serve to explain the reporting issues that have arisen in respect of Mr Rao. I am unable to find, as the State contended, that the cognitive decline increases the risk that Mr Rao will commit serious sexual offences in the community.

35 In the event that I was required to find exceptional circumstances, I find there are factors that either separately, or in combination, are sufficiently unusual, out of the ordinary or special to justify the conclusion that it amounts to exceptional circumstances within the meaning of s 56(3) of the HRSO Act. First, as I have observed, the particulars of the conduct that the State relies upon in the contravention proceedings, if established, would not necessarily result in a continuing detention order under the HRSO Act. I have significant doubt as to whether I would order detention should the contravention proceedings be conducted on the information that I have received for the purpose of this application under ss 53 and 56 of the HRSO Act. Second, given the significant delay before the contravention proceedings are determined by the court, Mr Rao will be detained in circumstances where he is likely to be ultimately released. Third, if Mr Rao is detained pending the determination of the contravention proceedings for an extended period, Mr Rao may no longer have approved accommodation available. The State is unable to guarantee that should Mr Rao be detained and then subsequently released after the hearing of the contravention proceedings that approved accommodation will be available.

36 For completeness, I now turn to consider whether Mr Rao has satisfied me on the balance of probabilities that if he is released he will substantially comply with the standard conditions of the supervision order, including any amendments made to the standard conditions pursuant to s 56(3)(b) of the HRSO Act.

37 On the basis of the information that I have at the time of the hearing of this application, I am satisfied that Mr Rao would substantially comply with the standard conditions if released. In making that determination, I am mindful that Mr Rao has substantially met the requirements of the supervision order and the particulars of the conduct that grounds the contravention proceedings, if established, would not necessarily result in a continuing detention order under the HRSO Act.

38 Therefore, the application of the State that Mr Rao be detained in custody pending the determination of the contravention proceedings is refused. Mr Rao will continue in the community being subject to the stringent conditions of the supervision order.

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

[1] Application for Contravention Proceedings filed 27 July 2021.

[2] The State of Western Australia v Rao [2019] WASC 93 [1] - [5].

[3] The State of Western Australia v Rao [2019] WASC 93 [115].

[4] The State of Western Australia v Rao [No 2] [2020] WASC 467, 205 - 226.

[5] Affidavit of Ms Maynard affirmed 16 December 2021 [11] - [15].

[6] Affidavit of Mr Meertens affirmed 15 December 2021 [10].

[7] Report of Dr Vidovich dated 14 December 2021, 3.

[8] Report of Dr Vidovich dated 14 December 2021, 7.

[9] Report of Dr Vidovich dated 14 December 2021, 8.

[10] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52].

[11] The State of Western Australia v Slater [No 2] [2021] WASC 465 [15] - [20].