THE STATE OF WESTERN AUSTRALIA -v- WARMDEAN [No 2] [2020] WASC 454 (11 December 2020)

1. Fiannaca J further considered the statutory framework under the DSO Act and the HRSO Act at [30] ‑ [63]. Fiannaca J noted that the concepts and criteria with which the court is concerned in determining an application are substantially the same under both statutes.[3] The jurisprudence established in respect of the DSO Act remains relevant in construing and applying the HRSO Act, with appropriate adaptation in cases involving non‑sexual offences.[4]
2. On 14 January 2019 in the Supreme Court, Fiannaca J found the respondent to be a serious danger to the community under s 17 of the DSO Act and made the CDO.[5]

1. Typically in these matters two issues arise:
   1. whether the respondent is a high risk serious offender; and
   2. if so, whether the appropriate order is a continuing detention order (CDO) or release into the community on a supervision order (SO).

1. The respondent's background of offending and the relevant factual circumstances are set out in detail in Fiannaca J's judgment.[6] Generally it is not necessary to repeat what his Honour said however, the following passage encapsulates the respondent's offending behaviour:

[113] It is clear from the circumstances of the offences and from the respondent's most recent accounts that there has been a pattern to his sexual offending. He committed each of the offences for sexual gratification, at a time when he was sexually aroused, usually after watching pornography. Even the assault with intent to rob was sexually motivated. All of the offences were opportunistic, but also predatory in nature. There was an element of rudimentary planning in most instances. The offences were committed in public places. There were few persons around, but he was not deterred from attacking the woman who was jogging with her sister or the woman with dogs.

[114] Significantly, there has been an escalation in the seriousness of the offences. Generally, each successive offence involved a more overt and serious sexual assault and a greater degree of violence. There has also been a pattern of using weapons to intimidate his victims, including knives which were quite dangerous. Although on the last occasion he did not use a weapon, he used brute force to overcome a much smaller and weaker victim, causing her significant injuries.

[115] The repetition and nature of the offences, and the fact that he has continued to offend despite being convicted and serving periods of detention for earlier offences, demonstrated that the respondent has a propensity to commit serious sexual offences in the future, particularly in circumstances in which he is intoxicated and has become aroused by pornography. Further, the pattern of escalation and his admission that he intended to rape the last victim indicate a propensity to commit a sexual offence that is more serious than those he has committed so far, although the last incident is likely to have involved a more serious offence if the respondent had not been disturbed.

[116] The respondent has continued to commit sexual offences despite expressing some understanding in the past of the impact of his offending on his victims and the causes of his offending. His history indicates that having some insight into his offending would not be an adequate protective measure to prevent him from offending again in a similar way.

Is the respondent a high risk serious offender?

An offender is a high risk serious offender if the court dealing with an application under this Act finds that it 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.

1. The legal principles relating to the construction of s 7, s 48(1) and s 68(1) of the HSRO Act and s 7, s 17(1) and s 33(1) of the DSO Act are the same and that the relevant authorities decided under the DSO Act are applicable to the HRSO Act. They are conveniently set out by Corboy J in The State of Western Australia v West[7] as follows:[8]

(a) Section 7(1) of the DSO Act provides that before the court may find that a person is a serious danger to the community, it must be satisfied that there is an unacceptable risk that, if the person was not subject to a continuing detention order or supervision order, the person would commit a serious sexual offence [now a 'serious offence'].

(c) In deciding whether to find that a person is a serious danger to the community, the court must have regard to each of the matters specified in s 7(3) of the DSO [and now HRSO] Act.

(d) It will necessarily and automatically follow that a person is a serious danger to the community if the court is satisfied that there is an unacceptable risk that, if the person was not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence [now a serious offence].

(e) The term 'unacceptable risk' is not defined in [either] Act. However, a finding of fact that there is an unacceptable risk is an evaluative and predictive finding of fact involving a balancing exercise in which the court is required, on the one hand, to have regard to, among other things, the nature of the risk (the commission of a sexual [now serious] offence with serious consequences for the victim) and the likelihood of the risk materialising and on the other hand, the serious consequences for the respondent (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order) if an order is made: Italiano v The State of Western Australia.[9]

(f) In a passage that was expressly approved in DPP (WA) v GTR,[10] Wheeler JA stated in DPP (WA) v Williams:[11]

'In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual [serious] offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.'

(g) The powers conferred by [either] Act are not to be exercised for the purpose of imposing additional punishment on an offender but rather, for the ultimate purpose of protecting the community. The community will be protected by control continuing to be exercised over the offender; it may also be protected by the provision of care and treatment to the offender while in custody in the hope that the danger posed to the community or sections of it will be reduced.

(h) The court must identify what, if anything, constitutes the risk and what factor or factors makes that risk unacceptable, and then consider whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence[12].

(i) The court must make a CDO or SO once it is found that the respondent is a serious danger to the community: Woods v DPP (WA).[13] The paramount consideration in deciding between the orders is the protection of the community. That does not mean that there is a predisposition to making a continuing detention order. As Hall J observed in DPP (WA) v Decke,[14] '[i]t cannot simply be assumed that the most assured preventative is detention and therefore, the protection of the community will always favour such an order'.

(j) The court should choose the order that is least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community: The State of Western Australia v Latimer[15] and DPP (WA) v Decke.[16]

1. Fiannaca J concluded that the respondent was a high risk serious offender.[17] I agree with His Honour's reasoning and his conclusions.
2. His Honour questioned whether the diagnosis of Foetal Alcohol Spectrum Disorder (FASD) was correct given that there was no evidence of pre-natal drinking. However, as his Honour pointed out, the aetiology may not matter since the assessment conducted by PATCHES Paediatrics is consistent with the existence of neurological deficits that affect specific areas of cognition and functioning.[18] It is important to recognise that the respondent has a cognitive disability.
3. Dr Wojnaowska has an extensive history of interviews with the respondent for the purposes of assessment under the DSO Act and now under the HRSO Act. Dr Wojnarowska conducted a further interview with the respondent on 14 December 2019 at Bunbury Regional Prison. The interview lasted three hours. She produced a report dated 29 December 2019.
4. Dr Wojnarowska set out the respondent's risk scenario at [81] ‑ [82] of her 29 December 2019 report.[19]
   1. Mr Warmdean has consistently offended against stranger females. If he were to reoffend, a similar scenario is likely. It is also likely that further escalation of his offending will take place as if not stopped by a passer-by or other witness he is likely to sexually penetrate the victim.
   2. He will be living a community where females move freely in the public areas such as parks, reserves, streets or public transport at any time of the day, including evening hours. He is likely to drink or smoke cannabis or possibly take methamphetamine with his family or friends. He may become sexually aroused after watching pornography or may just become sexually frustrated and he is unlikely to develop a relationship with an age appropriate woman. An argument with someone may or may not occur and he may or may not be angry just prior to his offending.
   3. He is likely than to leave to go for a walk or to catch a public transport searching for a vulnerable female. He is likely to offend against any female, irrespective of their age, save for prepubescent children (less than 10 years old). There will be a degree of planning how best approach the victim to secure her compliance. The presence of other people in the vicinity will not be a deterrent.
   4. He is likely to offend alone. The harm to the victim is likely to be psychological and physical. The physical injuries will relate to the sexual act and additional violence.
   5. Every-day life stressors, arguments with his family members and boredom associated with lack of structured activity would lead to Mr Warmdean resorting to cannabis to regulate his mood. Limited opportunity to engage sexually with consenting, age appropriate females is also perceived as an important risk factor.
   6. The main driving force in his offending will be his sexual frustration and anger associated with his personal circumstances facilitated by alcohol or other drugs intoxication.
5. Dr Wojnarowska expressed the following opinion as to the respondent's risk of sexual re-offending:[20]
   1. Taking into consideration my clinical assessment and the application of RSVP, PCL-R, 3-Predictor Model and I am of the opinion that Mr Warmdean is at high risk of sexual reoffending and as such, he poses a serious danger to the community if not subject to the relevant legislation under the Dangerous Sex Offenders Act (2006). Mr Warmdean has not completed SOTP and his treatment needs remain outstanding.
   2. The following factors contributed to this conclusion:
      • Mr Warmdean's high sexual drive and high level of sexual preoccupation associated with his young age;
      • Deviant sexual behaviour;
      • Impulsivitywith propensity to act in a disinhibited manner;
      • Deficiency in communicating and sustaining interpersonal relationships;
      • High likelihood of resorting to sex, alcohol and cannabis to alleviate his problems;
      • Propensity to gravitate towards antisocial peers;
      • Unfeasible release plans.
6. Dr Wojnarowska's recommendations as to intervention and risk management were as follows:[21]
   1. Mr Warmdean has extensive, unmet treatment needs. The following may assist in his risk reduction:

Continuing Detention

Psychological treatment

1. Mr Warmdean will be suitable for inclusion in psychological offence specific group or individual treatment program. He would benefit from engaging in [the Intensive Sex Offender Treatment Program], re-enforced by the at least weekly individual, offence-focused treatment. The group only program will not be sufficient as it will not tailor to Mr Warmdean's specific treatment needs in the area of deviant sexual behaviour.

1. Mr Warmdean would benefit from the antilibidinal pharmacological treatment which should commence in a custodial setting to allow for developing the monitoring system and to ensure an adequate response to treatment. The type of medication will depend on the availability and resources of the provider.
2. Medications tend to be employed when high levels of sexual drive and arousal are identified, typically as an adjunct to psychological treatment (Thibaut et al., 2010). This may be in the form of Selective Serotonin Reuptake Inhibitors (SSRls), antiandrogens and increasingly, gonadotrophin-releasing hormone (GnRH) agonists. The latter, although much more expensive than the former two, proved to be the only medications that reduce testosterone to the castration levels. Unfortunately treatment with both antiandrogens and GnRH agoinsts is associated with multiple serious side effects, the most concerning being increased risk of osteoporosis. Mr Warmdean is obese and has type2 diabetes which in itself, predisposes him to serious health complications in the future. I would therefore recommend that the period of treatment is be no longer that five years duration and that Mr Warmdean receives regular medical follow up during this time.

1. If possible, a gradual re-integration into the community, versus immediate release would be preferable, although I understand that this may not be possible from the legislative point of view. Ideally, Mr Warmdean should be afforded a period of leave from prison, accommodation in a self-contained unit within the prison and work outside the prison.

Community Supervision

Social Interventions

1. Mr Warmdean is more likely to engage meaningfully in supportive, culturally appropriate interventions with the mentoring of an appropriately qualified Aboriginal male. This recommendation is relevant regardless of Mr Warmdean's continuing detention or release to the community. The most appropriate and immediate intervention in the community would then be the clear explanation of Mr Warmdean's conditions, including compliance with antilibidinal treatment and monitoring.
2. Deficits in cognitive functioning such as reasoning skills and memory will have detrimental effects on Mr Warmdean's capacity to sustain behaviours intended to achieve long term goals or change. This will necessitate that when used and where possible, rewards or sanctions employed for the intervention, supervision or management of Mr Warmdean will need to be as immediate as possible. Again, this consideration is relevant regardless of Mr Warmdean continuing detention or release to the community.

1. The same principals would apply irrespective of the type of the Order. Mr Warmdean said that he would be compliant with his treatment.
2. He is also aware, and accepts having to report to ANCHOR and having strict release conditions which would include reporting, GPS monitoring, exclusion zones, and disclosure of his offending to any potential friend or partner, drug and alcohol abstinence and other relevant conditions.
3. About nine months after Dr Wojnarowska's report of 14 December 2019, she again interviewed the respondent at Bunbury Prison on 29 August 2020. The interview lasted two hours. She produced a report dated 14 September 2020.[22] For the purposes of preparing her report, Dr Wojnarowska used a structured professional judgment measure known as the Risk for Sexual Violence Protocol (RSVP). The RSVP relies on both historical and dynamic variable to assess the offender's risk of re-offending.[23]
4. Dr Wojnarowska's findings from the RSVP analysis are as follows:[24]
   1. Problems with Self Awareness

Coded - No. Mr Warmdean has made a significant progress in this area, he now presents as confident, with good communication skills. He appreciates that his inappropriate sexual behaviour was closely related to his emotional state such as feelings of loneliness, rejection, or anger.

Coded - Possibly. Mr Warmdean has demonstrated his ability to resolve conflict without resorting to the use of cannabis or alcohol. He denied using sexual activity to regulate his emotions.

Coded - Possibly. Although he has been abstinent for the last 3 years, substance use remains a risk in the community.

Coded - Possibly. Mr Warmdean understanding of relationship dynamics has improved, however he has yet to demonstrate his ability to develop appropriate intimate connections.

Coded - No. He has demonstrated an ability to engage and retain information from ISOPT. His self-awareness and insight into his offending cycle has improved.

1. In view of the RVSP analysis, Dr Wojnarowska expressed the following opinion:[25]
   1. Mr Warmdean risk of sexual re-offending is high if not subject to the relevant legislation under the HRSO Act (2020). In my opinion his risk can be mitigated by appropriate psychological and pharmacological treatment and management by Community Offender Monitoring Unit (COMU).
   2. My recommendations remain unchanged from my last report.
   3. If the Court ordered a supervision order I would recommend that the length of this order is no shorter than 10 years.
2. The respondent's risk factors are as stated by Dr Wojnarowska and set out above. The high risk of sexual re-offending and the consequences for any member of the community who is the of that re‑offending make that risk unacceptable.
3. The respondent conceded that he is a high risk serious offender.
4. I am 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 respondent to ensure adequate protection of the community against an unacceptable risk that the respondent will commit a serious offence. I am so satisfied on the basis of the matters contained in the Book of Materials, the oral evidence, and in particular Dr Wojnarowska's reports.

Continuing detention order or release into the community on a supervision order?

1. I have concluded that the respondent remains a high risk serious offender. The question I now have to consider is whether to affirm the CDO or whether to rescind the CDO and make a SO: s 68(1)(b) of the HRSO Act.[26] In deciding that question, the paramount consideration is the need to ensure the adequate protection of the community: s 68(2) of the HRSO Act.[27]
2. In DPP (WA) v Unwin [No 3],[28] Hall J undertook an analysis of the purpose of a review hearing under the DSO Act:
   1. A person who has been detained in custody under the DSO Act must be the subject of an annual review. The purpose of the review is to determine whether the person continues to be a serious danger to the community and, if so, whether the appropriate order is continued detention or release on supervision: s 33 DSO Act.
   2. If the person is no longer a serious danger to the community the detention order must be rescinded. If the person continues to be a danger consideration must be given to whether detention or release on supervision is appropriate. In respect of this latter decision the paramount consideration is the need to ensure adequate protection of the community.
   3. The clear intention of the annual review process is to allow for the possibility of a change of circumstances. Detention under the DSO Act is not a punishment for past offending; it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised. If circumstances change such that the risk of reoffending reduces or can be adequately managed in the community then the continuing need for detention must be considered.
   4. It is a significant thing to deprive a person of their liberty, not for something they have done but for something they might do in the future. In order to justify detention on these grounds the evidence must be acceptable and cogent and establish the existence of a serious danger to the community to a high degree of probability: s 7(2) DSO Act. Such a finding requires satisfaction that there is an unacceptable risk that the person would commit a serious sexual offence if not placed under a supervision order or detained.
   5. The risk of reoffending may change over time. It may be affected by age, health and the successful completion of treatment. The availability of new technology or resources in the community may also affect whether the risk of reoffending can be managed on a supervision order.
   6. The justification for making a continuing detention order is the existence of an unacceptable risk of serious sexual offending that cannot be adequately controlled by conditional release. However, detention also serves the purpose of allowing treatment and care in a secure environment: s 17 DSO Act. This confirms an obligation on the part of prison authorities to facilitate change by offering programmes and access to counselling.
   7. If the risk changes or resources improve to enable more efficacious conditions then the need for detention may dissipate. In these circumstances, continuing detention may be unjust.
   8. The annual review process is intended to ensure that detention only continues where necessary. It mitigates the otherwise potentially draconian effect of imprisoning people for crimes that they have not committed. Annual reviews are not, therefore, merely a welfare check; they are an exercise of judicial power to confirm, vary or rescind a detention order. Continuing detention should not be ordered unless that is justified by the circumstances existing at the time of the review.
3. The principles stated by Hall J in relation to the DSO Act apply equally to the HRSO Act.
4. In DPP (WA) v Hart,[29] after summarising the authorities, Fiannaca J considered what should be the appropriate approach to the construction of the phrase 'will substantially comply with' in s 23(1B) of the DSO Act and what is required of the court. In his Honour's view, these words should be given their ordinary meaning, consistent with the purposes of the legislation and of the general conditions of a SO, the overall object which is to achieve the adequate protection of the community by appropriate management and mitigation of the unacceptable risk that the offender will commit a serious sexual offence.
5. Fiannaca J went on to state that the court must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with and will enable the attainment of the general object of the SO and the legislation.
6. The words 'will substantially comply with' in s 17(3) of the DSO Act are identical to those in s 23(1B) of the DSO Act, and similar to the wording of s 29(1) and s 29(2) of the Act, as is the requirement that the court be satisfied, on the balance of probabilities, that the offender will comply in the manner and to the extent required by those words before the court can make a SO.
7. Dr Wojnarowska's opinion is that the respondent has a good understanding of the order requirements if the court were to impose a SO, having stated to her that he would accept all the conditions and was able to quote curfew, ankle bracelets, drug and alcohol testing, geographical boundaries and restrictions on contact with people who are intoxicated or under 18 years.[30] I am satisfied that the respondent will substantially comply with the conditions.

Division 2 hearing - Fiannaca J's recommendations

1. Fiannaca J was satisfied on the evidence of Dr Wojnarowska and Dr Wynn Owen that the respondent's risk of committing a serious sexual offence could not be adequately managed and controlled in the community at that time.[31] Accordingly, his Honour ordered continuing detention.
2. His Honour stated that over the 12 months following his decision, it would be expected that the recommendations made by Dr Wojnarowska and Dr Wynn Owen would be implemented (if possible, in the case of a transition to self-care).[32]
3. His Honour listed the recommendations of the two court experts as follows:[33]

(i) that he be given the opportunity to reengage with the Intensive Sex Offender Treatment Program (ISOTP);

(ii) that he receive individual counselling and that attention should be given to providing him with assistance to mitigate some of his deficits in memory, learning and interpersonal skills;

(iii) a component of further treatment should address his abuse of alcohol and substances, as this remains an outstanding treatment area;

(iv) in accordance with Dr Wynn Owen's recommendations, consideration be given to the involvement of some culturally appropriate mentoring, ideally from an Aboriginal mentor;

(v) Dr Wojnarowska was of the view that the respondent should be prepared for reintegration into the community by being moved into a less restricted area while he is still in custody, if that is possible; and

(vi) that the respondent obtain stable and supported accommodation.

1. Since Fiannaca J delivered his judgment on 14 January 2019, the recommendations set out at (i), (ii), (iii), (iv) and (vi) above have been implemented either in part, or in full.

1. The respondent recommenced the ISOTP on 18 November 2019 and successfully completed the program on 10 August 2020.[34]
2. Dr George states that the respondent's engagement in the ISOTP may have assisted him in consolidating knowledge, that he demonstrated some understanding of key risk factors for reoffending. He also demonstrated an understanding of victim empathy and verbalised a view that his sexual offending was unacceptable.[35]

1. Since 20 September 2018, the respondent has engaged in individual counselling sessions with senior counselling psychologist, Ms Julia Morrison every two to three weeks. Sessions occurred at a reduced frequency as a result of his transfer to Bunbury Regional Prison and his engagement in the ISOTP.[36]
2. The following treatment needs were identified: grief and loss, emotion regulation (identification of emotions and triggers, coping, and self-care), drug and alcohol use, relationship instability, and sexual self‑regulation.[37]
3. Ms Morrison reported that she had worked with the respondent in relation to the influence of others and guided through risk scenarios and planning. She indicated that one of the significant factors for him will be his ability to engage refusal skills and avoid succumbing to negative peer influence, in terms of relapse into substance use, high risk situations and subsequent reoffending.[38]
4. Dr George states that the respondent's recall of individual intervention was limited although it is acknowledged that he attended only one counselling session since his previous review.[39]
5. Whatever the extent of the respondent's progress with individual counselling may be, it must be borne in mind that his diagnosis of FASD has resulted in his experiencing a number of difficulties in the areas of memory, language, adaptive behaviours/social skills and academic achievement, which represent an ongoing responsivity issue.[40]

Abuse of alcohol and substances as a component of further treatment

1. Ms Morrison identified drug and alcohol use as one of the respondent's treatment needs.
2. Ms Morrison has conducted intervention with the respondent regarding topics such as, inter alia, use of cannabis and alcohol as coping mechanisms, thinking through problems before they become exacerbated and developing insight into his offending.[41]
3. During his participation in the ISOTP, the respondent indicated that he recognised his risk factors as being alcohol and drugs, negative peers, a 'partying lifestyle' and identified that one strategy to address these was abstaining from alcohol, drugs and pornography.[42]

1. The Community Offender Monitoring Unit (COMU) has advised that a specific mentor has not been located.[43] It is part of the Uniting WA program to provide cultural support but there were difficulties in securing this.
2. A mentoring agency that Uniting WA previously utilised in relation to other offenders has subsequently ceased to exist and Uniting WA has outlined a number of challenges with locating a further service or mentor.[44]
3. COMU understands that Uniting WA had a female Aboriginal case worker start in this program, who may be able to offer some mentoring but this has not been specifically explored for the respondent. At this stage, it is unknown if this option would be appropriate in terms of age, gender and cultural group.[45]
4. Whilst a mentor is not in place, 12‑hour support will be available to the respondent and it has been confirmed that some of the support workers will be Indigenous Australians. Although not specifically named as 'mentors', the support workers who are with the respondent 24/7 are essentially providing beyond what a mentor service would.

Preparation for reintegration by placement in self-care section

1. Whilst in Bunbury Regional Prison, the respondent was placed in a self-care unit.[46]
2. However, upon his completion of the ISOTP the respondent was transferred back to Acacia Prison[47] and is no longer in self-care.

1. The respondent now has a provisional National Disability Insurance Scheme (NDIS) plan for a six to nine months which includes proposed accommodation. This property is a single-storey brick and tile dwelling with four bedrooms, two bathrooms and an enclosed single lock-up garage located adjacent to the residence.[48]

1. The following sets out a comparison of Dr Wojnarowska's reports of 29 December 2019 and 14 September 2020. The extract from the report of 14 September 2020 is set out in italics:[49]

Problems with Self Awareness

Coded -Yes. Mr Warmdean has major deficits in this area, which are identified as lack of confidence, communication problems and low assertiveness. He struggled to appreciate that his inappropriate sexual behaviour was closely related to his emotional state such as feelings of loneliness, rejection, or anger.

Coded - No. Mr Warmdean has made a significant progress in this area, he now presents as confident, with good communication skills. He appreciates that his inappropriate sexual behaviour was closely related to his emotional state such as feelings of loneliness, rejection, or anger.

Problems with Stress and Coping

Coded - Yes. Mr Warmdean has had difficulties with coping and tended to use cannabis, alcohol and sexual activity to regulate his emotions. He has also used pornography and masturbation as a self-soothing mechanism.

Coded - Possibly. Mr Warmdean has demonstrated his ability to resolve conflict without resorting to the use of cannabis or alcohol. He denied using sexual activity to regulate his emotions.

Substance Use Problem

Coded - Yes. This has previously been elaborated on in the history of drug use section. Substance abuse has contributed to his offending.

Coded - Possibly. Although he has been abstinent for the last 3 years, substance use remains a risk in the community.

Problems with Intimate Relationships

Coded - Possibly. Mr Warmdean has never been in a long term relationship. He is unlikely to develop one unless his interpersonal skills and communication problem are addressed in individual counselling.

Coded - Possibly. Mr Warmdean understanding of relationship dynamics has improved, however he has yet to demonstrate his ability to develop appropriate intimate connections.

Problems with Treatment

Coded - Possibly. Despite attending VOTP, 53 sessions of ISOTP and recently 6 sessions of individual counselling, his self-awareness and insight. into his offending cycle has just started to develop. However his attitude to engage in counselling, individual or group therapy is positive. The Patches neuropsychological report outlines in detail the expected difficulty, specifically in verbal memory and how to overcome them.

Coded - No. He has demonstrated an ability to engage and retain information from ISOPT. His self-awareness and insight into his offending cycle has improved.

1. Dr Wojnarowska's view of the respondent has altered after her most recent interview with him as in her opinion, he clearly made progress, retained a lot of material, present it is very open and insightful.[50] She is supportive of the respondent's release into the community on a SO with suitable conditions.
2. In a report prepared for this hearing Dr Wojnarowska concluded that:[51]

Mr Warmdean's risk of sexual re-offending is high if not subject to relevant legislation under the HRSO Act (2020). In my opinion his risk can be mitigated by appropriate psychological and pharmacological treatment and management by Community Offender Monitoring Unit.

1. The NDIS has approved a plan for the respondent. It is important to note that the plan has been approved on the basis of the respondent's disabilities. A report dated 16 November 2020 by Corrective Services relevantly states:[52]

The writer has confirmed that a six month plan has been approved for Mr Warmdean, which includes 24 hour per day, seven day per week support in the initial stages of his release, for the first four to six weeks. The service provider ... will gather evidence around Mr Warmdean's support needs in terms of his actual living situation. After a period of six weeks, a review of the level of support he is receiving will be conducted. If it is assessed and determined that Mr Warmdean has developed a degree of independence and self-management since his release and if it is determined he does not need the presence of someone 24 hours per day, seven days per week, support can be reduced in line with the review recommendations. It was advised that this would be done in a manner so that Mr Warmdean is only without support for short periods of time (likely to occur during his curfew hours). Conversely, if the support services believe Mr Warmdean does require ongoing 24 hour support, the agencies will work together with Mr Warmdean's Complex Support Needs Planner to review the NDIS plan based on the evidence continuing to be gathered. Functional assessments will be arranged and conducted in the lead-up to the expiry of his plan to review his support model and see whether Mr Warmdean has made progress, if he still requires significant support or if this can be reduced if he has developed some level of self-reliance. His current 24 hour per day, seven day per week support will be reduced in line with a 'step-down' approach, commensurate with his improved functioning over time. The aim of his NDIS plan and support is that eventually the level of support will reduce in time, because his independence and functioning has increased.

The proposed NDIS plan is broken down into different budgets: one is the core supports budget, which facilitates 24 hour, seven day per week accommodation support, with an overnight shift staff member present initially in the first four to six weeks of his release and a provision for on-call service if there are any critical incidences which occur from 08:00pm to 06:00am. Another budget is the Social, Civic and Community Participation budget, where funding is allocated for one‑to‑one weekly support for Mr Warmdean to access and participate in activities of interest, which also comply with the conditions of his Order. Transport is also included in this budget to assist Mr Warmdean engage in community activities.

Capacity Building Support is again broken down into three budgets: Improved Daily Living, Positive Behaviour/Behavioural Intervention Support and Support Coordination. In terms of Support Coordination and Positive Behaviour Support, a Specialist Support Coordinator from Integrated WA has signed a service agreement. They will oversee this aspect of Mr Warmdean's plan and will coordinate all services engaged with Mr Warmdean, to ensure a consistent approach to his engagement, streamlined service delivery and ensure that ongoing, regular communication amongst all stakeholders occurs.

...

Ongoing liaison with Mr Warmdean's Specialist Support Service Coordinator ... indicates that the specifics as to how his supports will be facilitated and implemented has not changed since the last Community Supervision Assessment was submitted to the Court. Mr Warmdean will continue to have a roster of rotating, familiar staff, some of whom are Indigenous. The roster will comprise of 24 hour shifts in the first four to six weeks after release, to be reviewed with a view to reduce this if Mr Warmdean is assessed as managing overnight positively. [Mr Warmdean's Specialist Support Service Coordinator has] a large number of staff who have been recruited and they advised that Mr Warmdean will only have male workers. The Community Offender Monitoring Unit will provide training sessions to support staff working with Mr Warmdean prior to his release in areas such as risk factors, Order requirements, offending, risk scenarios and communication with COMU staff.

1. If the respondent's level of support is significantly reduced then the State can review the position in conjunction with the Community Offender Monitoring Unit and if there is an elevated risk can apply to this Court for further orders.
2. The level of supervision and training provided under the NDIS plan ensures a high degree of supervision for the respondent once he is released into the community. Although the primary role of the NDIS plan is to provide support for the respondent's disabilities, the physical presence of a person or persons in the accommodation with the respondent from 7 am to 7 pm will ensure that he is closely supervised.

1. The respondent is required to reside at a specified address as stated in the Community Supervision Assessment Report.[53] WA Police have undertaken a Desktop Spatial Analysis that is, an assessment of the property. Whilst schools, open spaces, a childcare centre and senior citizens association were identified in the vicinity, there were no considerable concerns discerned.[54] None of those concerns are such as to render the home unsuitable as accommodation for the respondent.
2. The respondent is subject to the supervision of community correction officers and is required to comply with those directions.
3. The respondent is required to attend programs and treatments as required which will further reduce any risk to the community.
4. The respondent is required to take appropriate medication, including any medication directed to reducing his sex drive.
5. The respondent is required to report to the police at the direction of the sexual offender monitoring squad.
6. The respondent is prohibited from any contact with the victims of his offending.
7. Although the supervision is not 24/7, Dr Wojnarowska is satisfied that 12/7 supervision will be adequate. The respondent will be subject to a curfew.[55]
8. The respondent is prohibited from accessing alcohol.
9. The respondent is subject to drug and alcohol testing.
10. The respondent is required to keep a diary of his movement, activities and associations if directed by a community corrections officer.
11. The respondent is prohibited from accessing pornography and his computer, and other devices for accessing the internet, will be liable to inspection.
12. The respondent is prohibited from contact with females at their or his residential address.
13. The respondent is prohibited from contact with children under 18 unless that contact has been approved by his community corrections officer.
14. Effectively all of the respondent's contacts must be reported to his community corrections officers.
15. The respondent will be subject to electronic monitoring by wearing an ankle bracelet so that if he leaves the house an alarm will be activated enabling the police to respond. If he removes the ankle bracelet he will face mandatory imprisonment of 12 months.
16. If he breaches any of the conditions, or there is a risk of his breaching the conditions, he can be brought before this court for a review of the supervision order and if necessary the supervision order can be cancelled and he can be returned to prison.
17. Dr Wojnarowska's evidence is that having regard to the respondent's age the period of supervision should be 10 years.

1. In DPP (WA) v Griffiths,[56] Hall J stated that the DSO Act (now the HRSO Act):

[D]oes not require that there be no risk of reoffending. Such a requirement could never be met and the effect would be that no person to whom the Act applies would ever be released. The requirement is that any risk be reduced to a reasonably acceptable level. This will always require a careful weighing of the nature and degree of risk and the context of methods for the management and reduction of that risk.

1. The test is not whether the respondent can be released on the basis that he poses no risk to the community but whether his release into the community poses an unacceptable risk. No decision in these matters is easy.
2. There have been some significant changes in the respondent's circumstances since the div 2 hearing in 2018 and most of the court experts' recommendations, as identified by Fiannaca J in his judgment, have been implemented in part, or in full.
3. Dr Wojnarowska's evidence is that the respondent can be released into the community provided suitable conditions are in place under the HSRO Act as proposed in the Community Supervision Assessment are imposed.[57]
4. I am satisfied that subject to the conditions I order and having regard to the matters contained in the Book of Materials, the oral evidence, and in particular Dr Wojnarowska's reports, as well as the need to ensure adequate protection of the community, that a SO should be made.
5. I am satisfied that a suppression order should be made in relation to the address of the respondent's accommodation.

1. I order that there be no publication of the respondent's address, being the house number, street name and suburb, and no publication of the name of the agency and its support workers, and any subsequent agency and its support workers, that may be responsible for his support.
2. I order that the continuing detention order made on 14 January 2019 be rescinded upon the supervision order set out in the annexure to these reasons taking effect.
3. I order that, when not in custody, the respondent is to be subject to conditions in the terms of the supervision order annexed to these reasons, and that the order is to have effect from 20 January 2021 for a period of 10 years.

IN THE MATTER of the High Risk Serious Offenders Act 2020

_______________________________________________________________________

SUPERVISION ORDER MADE BY THE HON JUSTICE CURTHOYS ON

_______________________________________________________________________

Pursuant to section 48(1)(b) of the High Risk Serious Offenders Act 2020 (WA), the Court, having found that the Respondent is a high risk serious offender within the meaning of section 7(1) of the High Risk Serious Offenders Act 2020 (WA), makes a supervision order in relation to the Respondent, for a period of 10 years from 20 January 2021, being a date not earlier than 6 weeks from the date this order is made, on the following conditions:

1. Report to a Community Corrections Officer at the place and within the time stated in the order and advise the officer of your current name and address;
2. Report to and receive visits from, a Community Corrections Officer as directed by the court;
3. Notify a Community Corrections Officer of every change of 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 Community Corrections Officer, which includes complying with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32);
5. Not leave or stay out of the State of Western Australia without the permission of a Community Corrections Officer;
6. Not commit a serious offence during the period of the Order; and
7. Be subject to electronic monitoring under section 31.

1. Take up residence at [suppressed] (not to be disclosed in Court) and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer (CCO) assigned to you;

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

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

1. Undertake any medication regime, including medication for the purposes of anti-libidinal purposes, as directed by the CCO in consultation with a medical practitioner(s), comply fully with that treatment and any testing to monitor your compliance with that treatment as directed by a CCO;
2. Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of re‑offending and compliance with treatment to the Department of Justice;
3. Permit any medical practitioner, psychologist, psychiatrist, counsellor or support worker to advise the CCO immediately if they become aware or suspect that you have or intend to cease undergoing pharmaceutical medication contrary to the advice of a medical practitioner, or if you appear to have ceased to consult with that medical practitioner on such treatment;

1. Report to the Officer-in-Charge of the Sex Offender Management Squad (SOMS) at the Hatch Building, 144 Stirling Street, PERTH WA 6000 within 48 hours of your release from custody and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of SOMS or his/her delegate;
2. Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004;
3. If requested, permit Police Officers to enter and search your residence and/or vehicle, and/or your person for the purpose of monitoring your compliance with your obligations under this Order and allow the seizure of any such items that the Police Officer believes to contravene the conditions of this order;
4. Remain at your premises and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the High Risk Serious Offenders Act 2020;
5. When requested, advise Police of the names of all of your internet service providers, all mobile or landline telephone services used by you and all internet user names or identities and passwords used by you;

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

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 condition 25, 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 the victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times;
3. Report to the CCO and WA Police any direct or indirect contact with the victims of your sexual offending on the next occasion you report to that person or agency;

1. Not commit any criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments;
2. Not commit any offence contrary to s 202, s 203, s 204, s 204A, s 204B, s 217, s 218, s 219, s 220 or s 557K of the Criminal Code 1913 (WA);
3. Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996;
4. Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies, including, but not limited to cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014 and your use is in accordance with the instructions of the provider;

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

1. Not to possess, purchase, consume, or use alcohol;
2. Not go to or remain at any licensed premises unless permitted or required to do so for the following reasons:

a) For the purpose of averting or minimising a serious risk of death or injury to yourself or another person;
>
> b) For a purpose, and for a duration, approved in advance by a CCO;
>
> c) On the order of a CCO or Police Officer;

3. Maintain a daily diary of your movements, activities and associations as directed by the CCO and present this diary to the CCO and/or Police Officer upon request;
4. Attend for and submit to urinalysis or other testing for alcohol use and prohibited drugs as directed by the CCO or by a Police Officer, including accompanying such persons to an appropriate location for such testing to take place;
5. To provide a valid sample for the testing described in Condition 38;
6. Not to remain in any place where prohibited drugs are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place. If you are the sole occupant of the address, request those consuming prohibited drugs leave the address, if they refuse or otherwise do not leave, contact police and request they remove the patrons;
7. Not to associate with any person known to you to have committed any sexual offence, unless such association is authorised in advance by the CCO;
8. Not enter the premises or access the services of escort agencies or sex workers without the prior notification and approval of a CCO or WA Police;
9. Not access or have in your possession in either electronic or permanent form any pornographic material;
10. Not enter any residential address in which a female is present, resides or is known to reside, unless authorised in advance by the CCO;
11. Not permit any female to enter any residential address in which you reside, unless the identity of such person is approved in advance by a CCO;
12. 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, and another adult is present.

('Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and 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, you must withdraw immediately from the presence of the child;
2. Provide details of any contact with a child under the age of 18 years both to your CCO and to the WA Police on the next occasion you report to that person or agency;
3. Report at your next contact with your CCO the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship by you with any person;
4. Report at your next contact with your CCO and WA Police any association, friendship, or relationship by you with a person who has a child or children under the age of 18 years in their care either full or part time;
5. 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;
6. As directed by a CCO, make full disclosure regarding your past offending and the current Order to anyone with whom you commence a friendship, 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; and to cease/cancel such memberships if direction to do so by a CCO or Police Officer;
8. Advise a CCO 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;
9. Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 54, without prior approval of the CCO;
10. 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 device referred to in condition 54 or any online accounts, to any person other than a CCO or Police Officer;
11. 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; should any other entity be required to access a device for instances such as technical advice, approval must be sought in advice from a CCO;
12. Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised by another person, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunication and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police.
13. Not conduct computer searches for, collect, access, or be in possession of in either electronic or permanent form images of children, including drawings or sketches, whether indecent or not; with the exception of images of your immediate family that 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.

____________________________________

I have received a copy of this order. I have had explained to me and understand the effect of this Order and what may happen if I contravene it.

_____________________________

In the presence of: _____________________________

Name and address: _____________________________

_____________________________

Date: _____________________________

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

Research Associate to the Honourable Justice Curthoys

[1] The State of Western Australia v ZSJ [2020] WASC 330.

[2] The State of Western Australia v ZSJ [5].

[3] The State of Western Australia v ZSJ [30].

[4] The State of Western Australia v ZSJ [31].

[5] DPP (WA) v Warmdean [2019] WASC 6.

[6] DPP (WA) v Warmdean [40] ‑ [117].

[7] The State of Western Australia v West [2013] WASC 14 [52]; see also WA v James-Ind [2019] WASC 176 [6] ‑ [25]; WA v MGD [No 2] [2019] WASC 186 [11] ‑ [25]; WA v Narkle [2019] WASC 404 [7] ‑ [17].

[8] Applicant's Outline of Submissions, 29 September 2020 [36].

[9] Italiano v The State of Western Australia [2009] WASCA 116 [4], [46] (Buss JA).

[10] DPP (WA) v GTR [2008] WASCA 187 [26].

[11] DPP (WA) v Williams [2007] WASCA 206 [63] ‑ [65].

[13] Woods v DPP (WA) [2008] WASCA 188.

[14] DPP (WA) v Decke [2009] WASC 312 [14].

[15] The State of Western Australia v Latimer [2006] WASC 235.

[17] DPP (WA) v Warmdean [234] ‑ [236].

[18] DPP (WA) v Warmdean [147] ‑ [148].

[26] This provision is similar to the previous s 33(1)(b) of the DSO Act.

[27] This provision reflects the previous s 33(3) of the DSO Act.

[28] DPP (WA) v Unwin [No 3] [2013] WASC 178 [14] ‑ [18].

[29] DPP (WA) v Hart [2019] WASC 4 [52].

[43] Email to the ODPP dated 25 September 2020.

[44] Email to the ODPP dated 25 September 2020.

[45] Email to the ODPP dated 25 September 2020.

[46] Email to the ODPP dated 29 September 2020.

[47] Email to the ODPP dated 29 September 2020.

[50] Email to the ODPP dated 25 September 2020.

[52] Exhibit 3, Updated Community Supervision Assessment, 16 November 2020, 2 ‑ 3.

[55] Exhibit 2, Email to his Honour's Associate, 20 November 2020.

[56] DPP (WA) v Griffiths [2015] WASC 393 [107].