THE STATE OF WESTERN AUSTRALIA -v- UJG [No 2] [2023] WASC 77 (16 March 2023)

1. The State may make an application for a restriction order where a person is a serious offender under custodial sentence pursuant to s 35 of the HRSO Act. The term 'serious offender under custodial sentence' is defined in s 3:

serious offender under custodial sentence means a person -

(a) who is under a custodial sentence for a serious offence; or

(b) who -

(i) is under a custodial sentence for an offence or offences other than a serious offence; and

(ii) has been under that sentence at all times since being discharged from a custodial sentence for a serious offence;

1. At the time this application was made, the respondent was serving a term of imprisonment for a 'serious offence' as defined by ss 3 and 5 of the HRSO Act.
2. A 'serious offence' is defined by s 5 of the HRSO Act which relevantly provides:
   1. Term used: serious offence

(a) it is specified in Schedule 1 Division 1; or

(b) it is specified in Schedule 1 Division 2, and is committed in the circumstances indicated in relation to that offence in that Division.

(a) it was an offence under a written law that has been repealed; and

(b) the offender's acts or omissions that constituted the offence under the repealed provision would constitute a serious offence under subsection (1).

(3) An offence is a serious offence if it is an offence of conspiracy, attempt or incitement to commit an offence that is a serious offence under subsection (1) or (2).

1. The respondent has committed offences that come within this category. The respondent has also committed a number of offences that are not characterised as serious offences. Offences of other types may be relevant in assessing the risk of serious offences being committed in the future because other offences may be connected to behaviour which has the real potential to lead to serious offending.[5]
2. Section 7(1) of the HRSO Act provides that an offender is a high risk serious offender if 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 offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence. The State has the onus of satisfying the Court that a person is a high risk serious offender. This is a greater standard than a finding on the balance of probabilities and less than a finding of beyond reasonable doubt, but is otherwise incapable of further definition.[6] This does not necessarily mean that the risk must be at some high percentage of probability; a risk may be less than 50% yet still be unacceptable.
3. If the Court is satisfied that there is an unacceptable risk of the kind described in s 7(1) of the HRSO Act, it necessarily follows that the person concerned is a high risk serious offender.[7] However, the Court must identify what it is that constitutes the risk and what makes it unacceptable and then consider whether or not those factors have been proved to the requisite standard, that being to a high degree of probability, furnished by acceptable and cogent evidence.[8]
4. In The State of Western Australia v Garlett,[9] Corboy J identified that there is 'arguably a material difference between s 7(1) of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act), read with s 17, and s 7(1) of the HRSO Act, read with s 48'.[10] His Honour observed that s 7(1) of the HRSO Act requires that the Court be satisfied that 'it is necessary to make a restriction order', stating:[11]

It is arguable that the words 'necessary to make a restriction order in relation to the offender to ensure adequate protection of the community' introduce a further evaluative element over and above an evaluation of whether the risk of an offender committing a serious offence is unacceptable.

1. Corboy J recognised in The State of Western Australia v Garlett that the current form of s 7(1) requires 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 offender (the first step in making a restriction order) and should not merely be 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).[12]
2. In The State of Western Australia v D'Rozario,[13] Quinlan CJ agreed with Corboy J's construction of s 7(1) of the HRSO Act.
3. I also agree with Corboy J's construction of the HRSO Act. Therefore, the Court is required to make two evaluative judgments under s 7 of the HRSO Act being first, whether the risk of future offending is unacceptable and, second, whether it is necessary to make a restriction order to adequately protect the community.
4. The Court could find that it is not necessary to make a restriction order to adequately protect the community, despite the court finding that the risk of future offending was unacceptable. As Quinlan CJ observed, it would be a rare situation that the Court would find that it was not necessary to make a restriction order to adequately protect the community notwithstanding that it has been found that the risk of future offending was unacceptable.[14] Quinlan CJ gave the example where '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')'.[15]
5. A finding that there is an unacceptable risk involves a balancing exercise requiring the Court:

... to have regard to, among other things, the nature of the risk (the commission of a serious offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition whilst having regard, on the other hand, to the serious consequences for the respondent if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order).[16]

1. An unacceptable risk in the context of s 7(1) of the HRSO Act is therefore a risk which is unacceptable having regard to a variety of considerations. These may include the likelihood of the person offending, the type of serious offence which the person is likely to commit (if that can be predicted) and the consequences of finding that an unacceptable risk exists. I am required to consider whether, having regard to the likelihood of the respondent offending and the nature of the offence to be committed, if the risk of that offending is so unacceptable that, notwithstanding the fact that the respondent has already been punished for the offences he has committed, it is necessary in the interests of the community to ensure that he is subject to further control or detention.[17]
2. Section 7(3) of the HRSO Act sets out a number of matters that the court must have regard to in considering whether a person is a serious danger to the community. Those matters are:

(3) In considering whether it is satisfied as required by subsection (1), the court must have regard to the following -

(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;

1. I note that s 7(3)(j) of the HRSO Act provides that the list of matters to be considered by the court is not limited by those otherwise delineated in the subsection.
2. While s 7(3)(g) of the HRSO Act provides that the court must have regard to the offender's criminal record in deciding whether a person is a serious danger to the community, the mere fact that a person has committed previous offences does not necessarily mean that there is an unacceptable risk that the person would commit a serious offence in the future. The relevance of a prior criminal record would depend on the nature of the offences committed, the number of offences and the period of time over which they occurred. However, past behaviour is often a good indicator of future conduct.
3. If a court determines that an offender is a high risk serious offender, then the court is required to make a restriction order.[18]
4. The term 'restriction order' is defined in s 3 of the HRSO Act to mean 'a continuing detention order' or 'a supervision order'. The terms 'continuing detention order' and 'supervision order' are defined in ss 26 and 27 respectively in similar terms to those that were used in the DSO Act.[19]
5. Section 26 of the HRSO Act provides:

(1) In this Act a continuing detention order in relation to an offender is an order that the offender be detained in custody for an indefinite term for control, care, or treatment.

(2) A continuing detention order has effect in accordance with its terms from the time the order is made until rescinded by a further order of the court.

(1) In this Act a supervision order in relation to an offender is an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate, in accordance with section 30.

(2) A supervision order has effect in accordance with its terms -

(3) The date from which a supervision order has effect must not be earlier than 21 days after the date the order is made unless the court is satisfied that the implementation of the order from an earlier date is practically feasible.

1. In making a determination between those two alternatives, the paramount consideration is the need to ensure the adequate protection of the community.[20]
2. However, other considerations do apply. The use of the word 'adequate' in the section indicates that a qualitative assessment is required. It cannot be assumed that the most preventative action is detention and that therefore, the protection of the community will always favour such an order.[21]
3. Given the more onerous nature of a continuing detention order, the scheme of the HRSO Act requires that the Court do no more than is necessary for the continuing control, care or treatment of the offender to achieve an adequate degree of protection of the community.[22]
4. Section 29 of the HRSO Act provides that a court cannot make a supervision order unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order. The onus of proof is on the respondent offender pursuant to s 29(2) of the HRSO Act.
5. The words 'will substantially comply with' should be given their ordinary meaning, consistent with the purposes of the legislation and the general conditions of a supervision order, the overall object of which is to achieve the adequate protection of the community by appropriate management and mitigation of the unacceptable risk that the respondent will commit a serious offence.[23]
6. The term 'standard condition', in relation to a supervision order, is defined by s 3 of the HRSO Act as meaning a condition that under s 30(2) must be included in the order. Section 30(2) of the HRSO Act provides seven conditions that must be included in any court ordered supervision order. Therefore, the respondent must satisfy the Court that he will substantially comply with those standard conditions before the court can make a supervision order. The seven standard conditions set out in s 30(2) of the HRSO Act require that the person:

(a) report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender's current name and address; and
>
> (b) report to, and receive visits from, a community corrections officer as directed by the court; and
>
> (c) notify a community corrections officer of every change of the offender's name, place of residence or place of employment at least 2 days before the change happens; and
>
> (d) be under the supervision of a community corrections officer and comply with any reasonable direction of the officer (including a direction for the purposes of s 31 or 32); and
>
> (e) not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and
>
> (f) not commit a serious offence during the period of the order; and
>
> (g) be subject to electronic monitoring under section 31.

1. The State tendered a Book of Materials that comprised the relevant material.[24] The State's evidence relied upon the oral testimony of four witnesses, namely, Dr Wojnarowska, consultant forensic psychiatrist; Ms Hasson, forensic psychologist; Ms Thatcher, HRSO Planning Manager at the Department of Justice and author of a Community Supervision Assessment Report dated 9 March 2023; and Ms Czechowski, Senior Community Corrections Officer at the Department of Justice and author of the Community Supervision Assessment Report dated 10 March 2023.
2. The respondent did not give evidence nor adduce any evidence.
3. 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. I will do so by considering the evidence in the context of the HRSO Act.

Factors under s 7 of the HRSO Act History of offending and antecedents - ss 7(3)(c), 7(3)(d) and (7)(g)

1. 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.
2. 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,[25] and as to whether there is any pattern of offending behaviour.[26]

1. The respondent was born in 1980, being the youngest of four children. His mother worked as an accounts clerk and his father a self-employed builder. The respondent described his childhood as uneventful and that he was loved by his parents.
2. In respect to education, the respondent performed academically at an above average level throughout his schooling, however he reported being bullied at school. At the completion of high school in year 12, he completed a degree in business and accounting. The respondent worked as an accountant through his adult life.
3. The respondent lived at his parent's home until he was 30 years of age, at which time he built a house and moved into the new residence. However, the respondent presently lives with his parents who are most supportive. The respondent maintains close relationships with his parents and siblings. However, his relationship with his half-siblings was damaged as a consequence of his offending concerning his step-nieces.
4. The respondent reported that he made few friendships at university or in the workplace and that he has felt lonely and socially isolated.[27]
5. In respect to substance abuse, the respondent reports that he does not use any illicit substances but does consume minimal amounts of alcohol.

1. The respondent's offending involves offences committed in Western Australia.[28] The respondent's offending history outlined in the criminal record which forms part of the material relied upon by the applicant.[29] The offending history is summarised, in part, in a chronology of offending which was received in evidence.[30] I will outline the index offending and then turn to the respondent's other convictions, delineating the offences that may constitute serious offences under s 5 and sch 1 of the HRSO Act.

1. The index offences comprise convictions for two counts of indecently dealing with a child under 13 years of age contrary to s 320(4) of the Criminal Code; one count of indecently dealing with a child over 13 years and under 16 years of age contrary to s 321(4) of the Criminal Code; three counts of aggravated indecent assault contrary to s 324 of the Criminal Code; one count of possession of child exploitation material; and one summary charge under a s 32 Notice of Possession of an indecent or obscene article, namely images of bestiality.[31]
2. On 20 December 2018, a total effective term of immediate imprisonment of 4 years 6 months was imposed in respect of the seven counts. A fine was imposed for the summary charge of possessing an indecent or obscene article.
3. The facts upon which the respondent was sentenced was outlined in the sentencing remarks of the learned sentencing judge.[32]
4. The offending involved three victims, two of whom were the biological nieces of the respondent and the third was the respondent's step-niece.
5. Count 1 involved one offence of indecent dealing with a child under the age of 13. The victim was staying with the offender's mother, with whom the respondent was living at the time. On an unknown date between 30 January 2001 and December 2004, when the victim was aged between four and eight, the respondent followed her into the toilet. He removed his underwear and squatted directly in front of her. He took her hand and placed it on his testicles. The victim froze and was confused about what had happened. After a few minutes, the respondent let go of the victim's hand, pulled up his underwear and left.
6. The victim did not report this to anyone until later, when other matters came to the attention of the police.
7. Counts 2 - 4 were offences of aggravated indecent assault, which were committed in 2006 upon the sister of the victim in count 1 when she was 17 to 18 years of age. The victim had first met the respondent in 2003 when she was approximately 13 years of age.
8. Whilst the victim was in the lounge room, the respondent sat next to her on the sofa. He then ran his fingers up and down her inner thigh (count 2). The respondent then pushed the victim back so that she was lying on the sofa and he then tickled her breasts and her legs. The victim curled up into a ball and said that it 'was gross', and that he was her uncle. The respondent replied, '[o]nly by marriage, it's OK, we are not actually related.' The victim pushed him away and went to another part of the house (count 3).
9. The offence the subject of count 4 occurred later that same day when the victim was leaving. As the victim walked towards a vehicle, the respondent was behind her. She sat in the vehicle and before she could pull her legs inside the car, the respondent placed his hand between her legs and touched her vagina saying 'tickle, tickle'. The victim told the respondent to 'get your fucking hands off me'.
10. Count 5 involved one offence of indecent dealing with a child under the age of 13. The victim, who was the sister of the first two victims was aged between 10 and 12 years at the time of offending. The respondent was then 34 to 35 years of age.
11. Over the course of the respondent's relationship with the victim, he would follow her and tickle her. Although, she did not like the attention from him, she described it as tickling as a normal person would. The victim would ask the respondent to stop and sometimes he would leave her alone. On other occasions, he would ignore her protests.
12. On an unknown date between December 2014 and January 2016, the victim was at her home when the respondent arrived. Whilst the victim was walking towards the bathroom, the respondent grabbed her on the thigh and put his hand next to her vagina. The victim attempted to push his hands away as the respondent attempted to put his hands down her pants. The victim went to the bathroom, locked the door and cried.
13. Count 6, being an offence of indecent dealing with a child over the age of 13 and under the age of 16, occurred in December 2017. The victim was aged 13 years at the time and the respondent was 37 years of age. The victim was at the respondent's mother's home. The respondent entered the room and said, 'if you don't shut your mouth I'm going to start tickling you'. She replied, 'you can't tickle', the respondent said, 'I can' and started to tickle her. She told him to stop but he did not. The tickling hurt her, as the respondent dug his fingers into her ribs and then touched her breasts in a squeezing manner.
14. The respondent's hand touched the victim's nipple. He pulled her towards him and rubbed his hand on her stomach. He moved his hands towards the victim's vagina on the outside of her clothing and she froze not knowing what to do. She curled her body into a ball to prevent the respondent from touching her. She could feel his erect penis against her bottom.
15. Count 7 concerns the respondent's possession of child exploitation material. On 1 February 2018, the police conducted a search of the respondent's home and found 38 devices with a total storage of 9 terabytes. These items were examined and a total of 10,220 child exploitation images and 20 videos were located.
16. The images and videos were categorised according to the Oliver scale as follows:

(a) 9,372 images and 4 videos in Category 1, showing young girls of various ages between 5 and 13 in sexually provocative clothing and in sexually explicit positions with their genitalia displayed;
>
> (b) 248 images and 6 videos in Category 2, which depicted both boys and girls of 5 to 12 years of age engaged in solo masturbation and non-penetrative sexual activity with each other;
>
> (c) 138 images in Category 3, which depicted both boys and girls under 13 masturbating adults and each other;
>
> (d) 460 images and 8 videos in Category 4, which showed both boys and girls aged between 8 and 13 years engaged in penetrative sexual activity with adults and other children;
>
> (e) One image and three videos in Category 5, which depicted a female child of approximately 12 years of age being dominated by a male dressed in a mask, who penetrated the child with a device; and
>
> (f) One image in Category 6 (anime, cartoon, or virtual image).

17. In August 2019, the respondent was convicted of committing three further offences in 2002 of indecent dealing with a child of or over the age of 13 years and under 16 years of age contrary to s 321(4) of the Criminal Code.[33] A total effective term of immediate imprisonment of 9 months was imposed. The offending involved the respondent standing in the dining area of the house and whilst standing close to the victim, who was 14 years of age at the time of the offending, the respondent pressed his erect penis against her back.[34]

1. In January 2006, the respondent was convicted in the District Court of nine counts of possessing child pornography contrary to s 60(4) of the Censorship Act 1996 (WA). A total effective term of immediate imprisonment of 8 months was imposed. Further, in January 2006 the respondent was convicted of 6 counts of possessing indecent publications contrary to s 59(5) of the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA). A total effective term of immediate imprisonment was imposed.

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

1. The word 'propensity' is taken to have its ordinary meaning in the context of the criminal law. In Director of Public Prosecutions (WA) v GTR, Murray AJA stated that:[35]

[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.

1. The State submits that the respondent's criminal record demonstrates a propensity to commit sexual offences against female children. Further, the respondent has a propensity to possess child exploitation material. I am satisfied that the respondent has such propensities.

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

1. The State submitted that the respondent's pattern of offending involves opportunistic physical contact with underage females that are known to him. I accept that all of the respondent's victims in his contact offending were known to him (two were his nieces and one was related by marriage) and that future contact offending is likely to involve that broad pattern, where the respondent manipulates young girls known to him.

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)

1. I must also 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. Further, I must consider whether or not the participation in any rehabilitation program has had a positive effect.
2. The respondent's history of treatment interventions and programs is outlined by both Dr Wojnarowska and Ms Hasson.
3. The respondent has undertaken or completed numerous treatment or programmatic intervention courses over an extended period. The relevant reports from the programs formed part of the State's material. I have considered those reports and will provide a succinct summary.
4. In 2006, the respondent completed the Medium Sex Offender Treatment Programme at Acacia Prison.[36] The respondent completed 52 of the 56 sessions until he was released on parole. The facilitators accepted that the respondent had completed the entire programme requirements. The respondent was described as a motivated participant and that there was little evidence of minimisation or justification of his offending behaviour. In respect of treatment gains, it is reported that the respondent developed insights into his cognitive distortions associated with his offending, his feelings at the time of his offending, and understanding of consent, as well as being able to consider a victim's perspective and the impact sexual abuse has on those who have been victimised.
5. The facilitators of the program in 2006 reported that the respondent's motivating factors for viewing child exploitation material was sexual attraction, boredom and curiosity. The facilitators concluded that the respondent would benefit from inclusion in programmes that aim to improve confidence, self-esteem and in the area of relationships.
6. In 2021, the respondent completed an Intensive Sex Offender Treatment Programme.[37] During the programme, the respondent acknowledged grooming children in his extended family, sexualising his relationship with his step-niece and engaging in sexual fantasies about her.
7. The respondent was considered to engage well in the programme and appeared motivated to apply various strategies taught as part of the psychoeducational component of the programme. The facilitators observed that the respondent demonstrated improvements in relationship skills, however, that he struggled initially in conflict management and communication skills due to a reluctance to disclose issues or to apply and practice skills. Further, difficulties managing and regulating emotions were evident throughout the programme.
8. At the conclusion of the programme the respondent was reported to have made gains in understanding his offending patterns and beliefs, improving his relationships, emotional regulation, and social skills. The respondent also had improvements to his maturity in prosocial behaviours.

Psychiatric reports and extent to which the respondent cooperated with psychiatric examinations ‑ s 7(3)(a)

1. Dr Wojnarowska, forensic psychiatrist, produced one report dated 12 February 2023 and also gave oral testimony at the hearing of the application.[38] The respondent cooperated with Dr Wojnarowska during the psychiatric examination.[39]
2. Dr Wojnarowska stated that the respondent has no formal psychiatric history and has never been treated with psychotropic medications. Dr Wojnarowska also stated the respondent has no history of psychiatric admissions. The respondent has a long history of anxiety, mainly in social situations. Dr Wojnarowska expressed the opinion that the respondent's history is consistent with the presence of sexual deviance, namely paedophilia, non-exclusive type, and is attracted to male and female children.[40] Further, the respondent fulfills the criteria for Avoidant Personality Disorder characterised by an enduring pattern of feelings of inadequacy, hypersensitivity to being negatively evaluated by others. The respondent desires social connection but is crippled by intense fear of social rejection. The respondent also presents with some narcissistic personality traits such as disregard for the feelings of others and his sense of entitlement.[41]
3. Dr Wojnarowska utilised Static 99R, which is an instrument that analyses sexual offenders in terms of the relative degree of risk for sexual recidivism based on commonly available demographic and criminal history information that has been found to correlate with sexual recidivism in adult male sexual offenders. Static 99R contains ten items which, when added together, create a total score.
4. The respondent's Static 99R score of 4 places him in the average risk category. In routine samples with the same score, the 5 year recidivism is 5.6% within a 5 year period. When using a 95% confidence interval, offenders who scored in a like manner to the respondent reoffended sexually at a rate of between 4.8% and 6.5% within a 5 year period.[42]
5. Dr Wojnarowska utilised the Hare Psychopathy Check-list-Revised (PCL-R), which assesses the extent to which an individual's personality structure conforms to the clinical construct of psychopathy. The PCL-R score is recognised as a useful indicator of likely future recidivism for general, violent offending. The score obtained from this test can be an important component of other risk assessment tools including structured clinical guides.
6. Dr Wojnarowska determined that the respondent's score of 10 on the PCL-R psychopathy is not a factor relevant to his offending. However, Dr Wojnarowska noted that the presence of grandiosity and entitlement has already proven to be a challenge in managing the respondent in the community. The respondent does not possess antisocial traits, and therefore has been compliant with the CCO's directions.
7. Dr Wojnarowska also assessed the respondent using the RSVP tool to determine risk factors. If the respondent was to reoffend the type of offences are likely to be a repeat of similar offending. A risk scenario would involve engaging with a female child who the respondent has access through a close friend or family member.
8. Dr Wojnarowska stated that the respondent's risk of serious offending is high if he is not subject to the HRSO Act. The respondent possesses one of the most relevant causal factors for reoffending, being the presence of paedophilia.[43] In examination, Dr Wojnarowska observed that whilst the respondent has protective factors such as stable accommodation, a supportive family, and is developing social connections, his preoccupation with sex and his high sexual drive may override those factors.[44]
9. Dr Wojnarowska states that to manage the respondent in the community, it is recommended that the respondent continue psychological counselling, with the focus on risk management and his sexual interest in children. Dr Wojnarowska expressed the opinion that the current conditions in the interim supervision order are sufficient to manage the respondent in the community.[45]

1. Ms Hasson, Clinical Psychologist, stated that the respondent engaged well in the interview process answering all questions spontaneously and with a reasonable quality and quantity of information.[46]
2. Ms Hasson expressed the opinion that the respondent presents as a high risk of serious reoffending if not subject to the HRSO Act.
3. Ms Hasson used the Static-99R, PCL-R and RSVP tools to assess the respondent's risk of future offending.[47] Ms Hasson assessed the respondent's Static-99R score as 4 which places him in the risk level 'above average'.
4. Based on his Static-99R score the respondent is assessed as a high risk of reoffending. His score is higher than 79.6% of routine samples of sexual offenders.[48]
5. The respondent's total score on the PCL-R was in the low range, which Ms Hasson stated indicated that he did not fit the construct of psychopathy in Australia.[49]
6. In Ms Hasson's opinion, the relevant RSVP risk factors for the respondent include chronicity of sexual violence, escalation of sexual violence, psychological coercion in sexual violence, extreme minimisation denial of sexual violence, problems resulting from child abuse (partially present) and problems with non-intimate relationships.
7. Ms Hasson expressed the opinion that the respondent committed his offences to satisfy his sexual and emotional needs given that he reported feeling emotionally connected to the victims and that he viewed the victims as possible partners/girlfriends in the absence of him having an appropriate intimate partner. Moreover, grooming behaviour is evidenced towards at least one of his victims given that he gained trust by talking to her about her problems and introducing sexual content to their conversations.
8. Ms Hasson confirmed that the respondent displayed some emerging insight into his personality structure, his thoughts, feelings and his behaviours. Further, Ms Hasson confirmed that the respondent appears motivated to understand himself and to make changes. Ms Hasson states the respondent requires assistance to develop self-confidence, improved self-worth and develop his relationship, dating and intimacy skills. In examination, Ms Hasson stated that the respondent has complied with his interim supervision order including being forthcoming in disclosures about sexual interests including accessing adult pornography.
9. Ms Hasson expressed the opinion that the respondent presents as a high risk of committing a future serious offence if not subject to a restriction order under the Act.[50] Ms Hasson observed that the respondent's sexual offending has been maintained by the reinforcement of his deviant sexual interest through the viewing of child exploitation material.
10. Ms Hasson said that should the respondent be made subject to a supervision order, that the supervision order should be of 5 years duration, with a requirement that the respondent engage in individual psychological counselling with his current treating psychologist. Ms Hasson stated that the counselling should be focussed on adjustment, maintaining awareness of risk factors associated with his offending, and to provide intervention where necessary.

Proposed Forensic Psychological Intervention Team report

1. Ms Richardson, clinical psychologist with the Department of Justice, prepared a report recommending a treatment plan report dated 11 January 2023.[51]
2. Ms Richardson confirms that the respondent had attended eight in person counselling sessions between October and December 2022. Ms Richardson reports that the respondent presents as socially awkward, lacking in confidence and suffering from poor self-esteem. Mr Richardson expressed the opinion that whilst the respondent engages with the counselling process, he continues to minimise his offending behaviour and at times denies details of his offences.[52]
3. Ms Richardson identifies the respondent's criminogenic treatment needs as including: sexual issues comprising impulse control and sexual deviance attraction to children, coping deficit skills, interpersonal relationship issues, self-esteem deficits, decision-making and consequential thinking, and depression and anxiety.
4. The current treatment plan for the respondent focuses on establishing a therapeutic rapport with Ms Richardson, providing support to ensure his adherence to his reporting obligations, exploring and addressing deviant sexual interests and improving his self-esteem and confidence.[53]

1. Ms Thatcher of the Department of Justice prepared a HRSO Treatment Options Report dated 9 March 2023.[54] Ms Thatcher summarises the respondent's intervention history and summarises previous reports including recommendations. Ms Thatcher confirms that should the respondent be released on a supervision order, then the treatment provided by Ms Richardson will continue.[55]

Community Supervision Assessment Report - Ms Czechowski

1. Ms Czechowski prepared a Community Supervision Assessment Report.[56] Ms Czechowski reports that the respondent has not incurred any charges or any warning letters for non-compliance with his interim supervision order.[57] However, Ms Czechowski stated 'that the respondent demonstrated a poor attitude towards both his offending behaviour and towards his victims throughout the duration of his ISO'.[58] Ms Czechowski stated the respondent frequently minimised and denies aspects of his offending and engaging in victim blaming.[59] Ms Czechowski recommends conditions to be imposed in a supervision order.[60] Ms Czechowski states that the conditions, which are supported by Dr Wojnarowska and Ms Hassan, have been discussed with the respondent.[61]

The risk that a serious offence will be committed if a continuing detention or supervision order is not made ‑ s 7(3)(h)

1. The psychiatric and psychological evidence supports the finding that the respondent is at a high risk of committing further serious offences. This assessment of risk takes into account his ongoing treatment needs. I have outlined the evidence that supports that finding. The respondent has undertaken a number of treatment programs. However, it is clear that the treatment programs have not adequately mitigated the risk that a serious offence may be committed if a continuing detention or supervision order is not made.

The need to protect members of the community from that risk ‑ s 7(3)(i)

1. There is a need to protect the community from the risk that the respondent will commit a serious offence. Both Dr Wojnarowska and Ms Hasson have expressed the opinion that there is a real risk that the respondent will commit offences of a sexual nature against female children. I have outlined that evidence when considering the reports of Dr Wojnarowska and Ms Hasson.
2. In respect to other matters, the respondent is subject to three lifetime violence restraining orders in respect to the three victims.
3. The respondent will continue to reside with his parents, being his residence, whilst subject to the interim supervision order. The WA Police have advised that the respondent's house is difficult to monitor given that he resides with his parents and therefore, ownership of property within the residence is difficult to prove. I do not consider this is a relevant factor.
4. There is ordinarily a paucity of accommodation available for high-risk offenders. Certainly, the State will not fund the establishment of purpose built accommodation for high-risk offenders. In respect to the respondent, he is fortunate to have parents who are engaged and willing to provide accommodation. Both Ms Hasson and Dr Wojnarowska stated that the support of the respondent's parents was a protective factor. It would be counterproductive to require the respondent to live on his own without support, in order to assist the police in proving the ownership of any property. In any event, the respondent has his own house but that is currently leased. The electronic monitoring equipment will mitigate any risk concerning schools in the suburb.
5. Therefore, I am satisfied that the respondent has suitable accommodation.
6. The respondent has a sound employment history. Ms Hasson expressed the opinion that maintaining employment is essential, as this will provide structure, routine and self-esteem to the respondent.

1. Counsel for the respondent submitted that I should not be satisfied that it is necessary to make a restriction order. The contention of the respondent is that any risk may be managed by a post sentence supervision order. Forrester J considered this contention in determining to impose an interim supervision order. Her Honour stated that additional conditions are required to ensure adequate supervision, and in particular, electronic monitoring of the respondent.[62] After considering the evidence in respect of the factors in s 7(3) of the HRSO Act, and finding that evidence to be acceptable and cogent, I am satisfied to a high degree of probability that the respondent currently presents an unacceptable risk to the community and that he would commit a serious offence. Further, I am satisfied that it is necessary to make a restriction order to adequately protect the community. I am satisfied that PSSO would be inadequate.
2. Therefore, I am satisfied that a restriction order must be made under the HRSO Act to ensure the adequate protection of the community against that risk. Both Dr Wojnarowska and Ms Hasson gave cogent and reliable evidence that supports this finding.
3. I have made that finding for the following reasons. First, the respondent has an extended history of offending involving sexual offences against children and accessing child exploitation material. Second, both Dr Wojnarowska and Ms Hasson expressed the opinion that the respondent is at a high risk of reoffending in a similar manner. Third, whilst the respondent is progressing and meeting his obligations under the interim supervision order, his treatment needs are long-standing and will require significant and sustained effort to reduce his risk of reoffending against children.

1. I must now decide whether the respondent should be detained pursuant to a continuing detention order or be released into the community under a supervision order. The State accepts that a supervision order will adequately manage the risk that the respondent will commit a serious offence. I am of the view that the State's submission is properly made.
2. The court must choose the order that is the least invasive to the respondent's liberty, while ensuring an adequate degree of protection of the community.
3. In considering whether a supervision order will adequately protect the community, it is necessary to take into account any conditions which can be placed on a supervision order so as to ensure adequate protection of the community, the rehabilitation of the respondent, his care and treatment, and to ensure adequate protection of victims of offences committed by the respondent.[63]
4. I must also be satisfied, on the balance of probabilities, that the respondent has established that he will substantially comply with the standard conditions of the order under s 30 of the HRSO Act.
5. The evidence fully supports a finding that a supervision order will adequately protect the community. In particular, Dr Wojnarowska and Ms Hasson expressed the opinion that the risk may be managed in the community by a supervision order. I am also mindful that the respondent has been meeting his obligations under the interim supervision order in the community.
6. I find that this is a case where the protection of the community may be properly and satisfactorily advanced by a supervision order, rather than a continuing detention order. Further, I am satisfied, on the balance of probabilities, that the respondent will substantially comply with the standard conditions of a supervision order as set out under s 30 of the HRSO Act.
7. In my view, there are conditions that may be imposed under a supervision order that will provide adequate protection of the community. The proposed conditions were not opposed by the respondent. However, counsel for the respondent submitted that the conditions impose extensive restrictions and that the directions being given by the CCO to the respondent under the interim supervision order are also restrictive. As the respondent continues to engage well with the supervision and reporting requirements of the supervision order, consideration may be given by the authorities to reducing the extent of the restrictions and directions.
8. Counsel for the respondent submitted that the supervision order should be of 2 years in duration. I have determined that the supervision order will be 4 years in duration. I have made that determination in light of the evidence of Ms Hasson and Dr Wojnarowska. Dr Wojnarowska stated that the minimum period of the supervision order would be two years but no longer than 5 years for the reason that the respondent has sufficient protective factors to allow for a shorter time of supervision.[64] Ms Hasson stated during her evidence in chief that she expressed the opinion that a 5-year period was necessary to ensure that the respondent has the time to receive treatment and to develop the necessary skills to make behavioural changes and for the changes to be consistent.[65] In cross-examination, Ms Hasson stated that the respondent's 'biggest risk factor' was the paedophilia diagnosis and further, the personality variables. Therefore, Ms Hasson stated 5 years was required to address those risk factors. Ms Hasson stated that 'it's a really complex picture that takes time'. Ms Hasson did not accept that two years was sufficient.[66] Ms Hasson stated that based on the actuarial information, the respondent's risk will not really change for 10 to 15 years.[67]
9. The conditions that are to be imposed are outlined in the supervision order, which is attached as Annexure One. The conditions are extensive and serve to manage the risk in the community.

1. For the above reasons, I have determined 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. 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 4 years.

SUPERVISION ORDER MADE BY THE HONOURABLE JUSTICE MCGRATH ON 16 MARCH 2023

Pursuant to section 48(1)(b) of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act), the Court, having found that the Respondent is a high risk serious offender within the meaning of section 7(1) of the HRSO Act, makes a supervision order in relation to the Respondent, for a period of 4 years from 16 March 2023, on the following conditions:

1. Report to a Community Corrections Officer (CCO) at the East Perth Adult Community Corrections Centre, 30 Moore Street East Perth Western Australia within 48 hours of being issued this order and advise the officer of your current name and address.
2. Report to and receive visits from, a CCO at such times and at such places as reasonably directed by the CCO.
3. Notify a CCO of every change of your name, place of residence, or place of employment at least 2 business days before the change happens.
4. Be under the supervision of a CCO, which includes, comply with any reasonable direction of the officer (including direction for the purposes of sections 31 or 32 of the HRSO Act).
5. Not leave, or remain out of the State of Western Australia without the permission of a Community Corrections Officer.
6. Not commit a serious offence as defined in s 5 of the HRSO, during the period of the Order.
7. Be subject to electronic monitoring under section 31 of the HRSO Act.

1. Take up residence at [address redacted] and spend each night at that address or at a different address only if such different address is approved in advance by a CCO assigned to you.

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

1. 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.
2. 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.

1. 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 receiving this Order, 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.
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 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.
4. Remain at your premises and/or vehicle when Police Officers conduct a search of your residence and/or vehicle.

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 offending 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 Justice.
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 victims at all times.
3. Report to the CCO and WA Police any direct or indirect contact with the victims of your sexual offending within 48 hours of such contact occurring.

1. Not commit any criminal offence where the maximum penalty for which includes imprisonment.
2. Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996.
3. Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997.
4. You must not assault, threaten, insult, or behave in an intimidating manner to a member of the Departmental staff or any agent providing a service on behalf of the Department of Justice.

1. Attend any medical practitioner, psychologist, psychiatrist, or counsellor as directed by the supervising CCO and obey the instructions of the practitioner with regard to treatment, and if you consent to commencing medication treatment, including anti-depressant medication or anti-libidinal treatment, take that medication as directed by the CCO in consultation with a medical practitioner or practitioners.
2. Undertake any medication regime in accordance with a medical practitioner's direction, and to comply with all testing to monitor your compliance with that 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 re­offending and compliance with treatment to the Department of Justice.
4. Permit any medical practitioner 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 ceased to consult with that medical practitioner or medical practitioners in respect of the treatment.

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. 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.

('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).

1. Where any unsupervised contact with a child under the age of 18 years is initiated by the child, unless the contact is permitted under condition 32, you must withdraw immediately from the presence of the child.
2. 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.
3. Report at your next contact with your CCO and Police any association or relationship by you with a person who has a child, or children under the age of 18 years in their care either full time or part time.
4. Not form any domestic relationship with a person who has a child, or children under the age of 18 years in their care either full time or part time, without prior approval of a CCO.
5. Report at your next contact with your CCO, the formation of any social association (of more than 2 contacts by any means), domestic, romantic, sexual or otherwise intimate relationship by you with any person.
6. As directed by your CCO, make full or part disclosure regarding your past offending and the current order to anyone with whom you commence an ongoing social association (of more than 2 contact by any means), domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.
7. 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.
8. Not conduct computer searches for, nor collect or access, or be in possession of, in either electronic or permanent form, images of children, including drawing or sketches, whether indecent or not, with the expectation of images of yourself or immediate family what are not indecent images, if approved in advance by a CCO. Possession of such images depicting a child or children on items such as on household items, may be authorised by a CCO.
9. Advise a CCO or Police Officer of every computer, telecommunication and/or electronic device capable of storing digital data or information, possessed or used by you, whether or not it is capable of being connected to the internet, and the location of that device.
10. Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 43, without prior approval of the CCO.
11. 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 devices referred to in condition 43, or any online accounts, to any person other than a CCO or Police Officer.
12. Upon request, permit a CCO or WA Police at any location nominated by them, to access any computer, telecommunication and/or device capable of storing digital data, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device. this includes providing all screen name(s), user name(s), and email addresses. Should any other entity be required to access a device for instances such as technical advice, approval must be sought in advance from a CCO.
13. 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 that computer, or electronic communication device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police.

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

[1] Application for Restriction Order filed 20 June 2022.

[2] The State of Western Australia v Dekens [2022] WASC 135.

[3] The State of Western Australia v Dekens [No 2] [2022] WASC 187.

[4] Applicant's written submissions, [166].

[5] Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246, [10].

[6] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307, [28] (Steytler P & Buss JA).

[7] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297, [66], [68] (Wheeler JA); Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307, [21] (Steytler P & Buss JA).

[8] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307, [34] (Steytler P & Buss JA).

[9] The State of Western Australia v Garlett [2021] WASC 387.

[10] The State of Western Australia v Garlett [2021] WASC 387, [133].

[11] The State of Western Australia v Garlett [2021] WASC 387, [135].

[12] The State of Western Australia v Garlett [2021] WASC 387, [139].

[13] The State of Western Australia v D'Rozario [No 3] [2021] WASC 412.

[14] The State of Western Australia v D'Rozario [No 3] [2021] WASC 412, [21].

[15] The State of Western Australia v D'Rozario [No 3] [2021] WASC 412, [21].

[16] Italiano v The State of Western Australia [2009] WASCA 116, [46].

[17] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297, [63] (Wheeler JA).

[18] High Risk Serious Offenders Act 2020 (WA), s 48.

[19] Dangerous Sexual Offenders Act 2006 (WA), s 3.

[20] High Risk Serious Offenders Act 2020 (WA), s 48(2).

[21] Director of Public Prosecutions (WA) v Decke [2009] WASC 312, [14].

[22] The State of Western Australia v Latimer [2006] WASC 235, [24]; Director of Public Prosecutions (WA) v Decke [2009] WASC 312, [15].

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

[25] High Risk Serious Offenders Act 2020 (WA), s 7(3)(c).

[26] High Risk Serious Offenders Act 2020 (WA), s 7(3)(d).

[27] Exhibit 1, Book of Materials, report of Ms Hasson, p 468.

[28] Exhibit 1, Book of Materials, Criminal record, 1-3.

[29] Exhibit 1, Book of Materials, Western Australia Criminal History, 1-19.

[30] Exhibit 1, Book of Materials, Chronology of offending prepared by the SSO, 4-7.

[31] Exhibit 1, Book of Materials, IND 383 of 2018, p 260-261.

[32] Exhibit 1, Book of Materials; Transcript of sentencing 20 December 2018.

[33] Exhibit 1, Book of Materials, Indictment IND 20 of 2019, p 384.

[34] Exhibit 1, Book of Materials, Statement of Material Facts, p 385-388.

[35] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307, [178] (Murray AJA).

[36] Exhibit 1, Book of Materials, Completion report of medium sex offender treatment program dated 29 June 2006, p 400-404.

[37] Exhibit 1, Book of Materials, Program Completion Report - Intensive Offender Treatment Program dated 1 November 2021, p 424-435.

[38] Exhibit 1, Book of Materials, Report of Dr Wojnarowska, p 443-463.

[39] Exhibit 1, Book of Materials, Report of Dr Wojnarowska, p 456-457.

[40] Exhibit 1, Book of Materials, Report of Dr Wojnarowska, p 457.

[41] Exhibit 1, Book of Materials, Report of Dr Wojnarowska, p 457.

[42] Exhibit 1, Book of Materials, Report of Dr Wojnarowska, p 458.

[43] Exhibit 1, Book of Materials, Report of Dr Wojnarowska, p 463.

[45] Exhibit 1, Book of Materials, Report of Dr Wojnarowska, p 463.

[46] Exhibit 1, Book of Materials, Report of Ms Hasson, p 466.

[47] Exhibit 1, Book of Materials, Report of Ms Hasson, p 481-489.

[48] Exhibit 1, Book of Materials, Report of Ms Hasson, p 482.

[49] Exhibit 1, Book of Materials, Report of Ms Hasson, p 488.

[50] Exhibit 1, Book of Materials, Report of Ms Hasson, p 490.

[51] Exhibit 1, Book of Materials, Report of Ms Richardson, p 436-438.

[52] Exhibit 1, Book of Materials, Report of Ms Richardson, p 437-438.

[53] Exhibit 1, Book of Materials, Report of Ms Richardson, p 438.

[54] Exhibit 1, Book of Materials, HRSO Treatment Options Report of Ms Thatcher dated 9 March 2023, p 439-442.

[55] Exhibit 1, Book of Materials, HRSO Treatment Options Report of Ms Thatcher dated 9 March 2023, p 442.

[56] Exhibit 1, Book of Materials, Community Supervision Assessment Report of Ms Czechowski, p 492-508.

[57] Exhibit 1, Book of Materials, Community Supervision Assessment Report of Ms Czechowski, p 495.

[58] Exhibit 1, Book of Materials, report of Ms Czechowski, p 495.

[59] Exhibit 1, Book of Materials, report of Ms Czechowski, p 494.

[60] Exhibit 1, Book of Materials, report of Ms Czechowski, p 503-598.

[61] Exhibit 1, Book of Materials, report of Ms Czechowski, p 503.

[62] The State of Western Australia v UJG [2022] WASC 272.

[63] High Risk Serious Offenders Act 2020 (WA), s 30(5).