THE STATE OF WESTERN AUSTRALIA -v- WARMDEAN [No 3] [2021] WASC 438 (9 December 2021)

3 On 9 July 2020 pt 1 of the Act came into operation.[2] Other parts of the Act relevant to the application came into operation on 26 August 2020 (commencement day).[3] Upon the coming into operation of these other parts of the Act the DSO Act was repealed.[4]

4 Under s 125 of the Act, if an order made, or direction given, under the DSO Act is in effect on the commencement day, the order or direction continues in effect and is taken to have been made or given under the corresponding provision of the Act. Accordingly, as at the commencement day the CDO continued in effect and was taken to have been made under the Act.

5 On 24 November 2020 Curthoys J conducted the first review of the CDO. The review, given the repeal of the DSO Act and s 125 of the Act, was conducted pursuant to s 64, s 66 and s 68 of the Act.

6 On 11 December 2020 Curthoys J ordered that the CDO be rescinded and that a supervision order be made in relation to the respondent (Supervision Order).[5] The respondent was released on the Supervision Order on 20 January 2021.

7 Condition 37 of the Supervision Order provides that the respondent is to maintain a daily diary of his movements, activities and associations as directed by his Community Corrections Officer (CCO) and is to present the diary to his CCO and/or police officers upon request.

8 Condition 43 of the Supervision Order provides that the respondent is not to access or have in his possession in either electronic or permanent form any pornographic material.

9 Condition 44 of the Supervision Order provides that the respondent is not to enter any residential address in which a female is present, resides or is known to reside, unless authorised in advance by the CCO.

10 Condition 46 of the Supervision Order provides that the respondent is not to have any contact with any child under the age of 18, whether such contact is in person, in writing, by telephone or by electronic means unless:

1. the contact is authorised in advance by the respondent's CCO and such contact is supervised at all times by an adult approved in advance by the CCO; or

2. the contact is necessary to complete a commercial transaction and is limited to the minimum contact required to complete the transaction, and another adult is present.

11 Condition 55 of the Supervision Order provides, in effect, that the respondent is not to allow any person other than a CCO or the Western Australian Police (police) access to any computer, telecommunication and/or electronic device capable of storing digital data or information possessed by the respondent without prior approval of the CCO.

12 Condition 58 of the Supervision Order relevantly provides that the respondent is not to 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 his activities on a computer, telecommunication and/or electronic device without approval in advance by a CCO or the police.

13 Condition 59 of the Supervision Order relevantly provides that the respondent is not to conduct 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 immediate family that are not indecent images if approved in advance by a CCO.

14 On or about 19 February 2021 the respondent was charged in the Magistrates Court with one offence of contravening, without reasonable excuse, a requirement of the Supervision Order contrary to s 80(1) of the Act. The charge alleged a contravention of condition 58 of the Supervision Order (MC PE 7935/2021).

15 On 19 February 2021 the respondent appeared in the Magistrates Court in relation to the contravention charge. The respondent pleaded guilty to, and was convicted of, the charge. He was sentenced to a fine of $1,000.

16 On 10 March 2021 the respondent was charged in the Magistrates Court with four offences of contravening, without reasonable excuse, a requirement of the Supervision Order contrary to s 80(1) of the Act. The four charges alleged contraventions of conditions 43, 55, 58 and 59 of the Supervision Order (MC PE 11204/21, MC PE 11203/21, MC PE 11202/21 and MC PE 11205/21 respectively).

17 On 17 March 2021 the respondent appeared in the Magistrates Court in relation to the four contravention charges. The respondent pleaded guilty to, and was convicted of, the charges. He was sentenced to 6 months imprisonment for each offence, with the terms to be served concurrently, suspended for 12 months. After being sentenced the respondent was released and remained subject to the Supervision Order.

18 On 24 March 2021 the respondent was charged in the Magistrates Court with another four offences of contravening, without reasonable excuse, a requirement of the Supervision Order contrary to s 80(1) of the Act. Two of the charges alleged contraventions of condition 46 of the Supervision Order (MC PE 13023/21 and MC PE 13025/21) and the remaining two charges alleged contraventions of condition 55 of the Supervision Order (MC PE 13024/21 and MC PE 13026/21).

19 On 24 March 2021 the respondent appeared in the Magistrates Court in relation to the additional four contravention charges. He pleaded guilty to, and was convicted of, the charges. He was sentenced for the offences to a global fine of $3000. After being sentenced the respondent was once again released and remained subject to the Supervision Order.

20 In the weeks leading up to the making of the application the respondent expressed suicidal ideations. Further, while subject to the Supervision Order the respondent's Risk Management Team formed the view that the respondent had engaged in 'concerning behaviours' and that the behaviours indicated that the risk that the respondent posed to the community might not be able to be managed under the conditions of the Supervision Order. The respondent's Risk Management Team is comprised of officers from the Community Offender Management Unit (COMU), officers from the police Sex Offender Management Squad (SOMS) and the respondent's treating psychologist.

21 On 8 June 2021 the applicant, due to the respondent being convicted of the nine contravention offences (contravention offences) and in light of the respondent's reported suicidal ideations and concerning behaviours, made the application. By the application the applicant seeks the following orders:

1. Pursuant to s 55(1)(a) of the Act, if the Court is satisfied that the respondent has contravened a condition of the Supervision Order, an order that the Supervision Order be rescinded and a continuing detention order be made in relation to the respondent;

2. Alternatively, pursuant to s 55(1)(b) of the Act, if the Court is satisfied that the respondent has contravened a condition of the Supervision Order, an order that the Supervision Order be amended and/or extended in such terms as the Court thinks fit.

22 On 1 July 2021 I made various programming orders relating to the hearing of the application. On the same date I also made an order under s 53(2)(b) of the Act that the respondent be detained in custody pending the determination of the application.

Sections 53 and 55 of the Act and applicable legal principles

23 In The State of Western Australia v ZSJ,[6] a case in which the State made an application under div 2 of the DSO Act but which, given the repeal of the DSO Act, fell to be decided under the provisions of the Act, Fiannaca J made the following observations (citations omitted):

As will emerge from the outline below of the statutory framework under the DSO Act and [the Act], the concepts and criteria with which the court is concerned in determining an application of this kind are substantially the same under both statutes. Although I have reached that view on the basis of the ordinary meaning of the provisions of both statutes, having regard to the context of the provisions within the statutes and the objects underlying the statutes, the construction is confirmed, in my opinion, by the second reading speech made to the Legislative Assembly in respect of the High Risk Offenders Bill 2019 by the Honourable Attorney General. The Attorney informed the House that the bill was intended to 'extend the Supreme Court's ability to make a continuing detention order or supervision order to serious violent offenders in the same manner as the provisions contained in the [DSO Act]'. He went on to say:

'In doing so, this bill fully preserves the provisions that apply in respect of dangerous sexual offenders in the [DSO Act].'

Whether or not that has been achieved remains to be seen upon analysis of the provisions. However, in my opinion, as the concepts and criteria in both statutes are substantially the same, the jurisprudence established in respect of the DSO Act remains relevant in construing and applying [the Act], with appropriate adaptation in cases involving non-sexual offences.

24 I respectfully agree with Fiannaca J's observations. In my opinion the case law decided under the DSO Act in relation to applications made under the corresponding provisions to s 53 and s 55 of the Act remains relevant to the determination of applications made under s 53 and s 55 of the Act.[7] Accordingly, the cases to which I will refer in dealing with the legal principles applicable to the determination of the application under the Act will include cases that have been concerned with proceedings under the DSO Act.

25 Section 53 of the Act specifies the circumstances in which the applicant may apply for an order under s 55. It is not in issue that in the case of the respondent the circumstances for the making of an application for an order under s 55 exist.

26 Section 55 of the Act relevantly provides as follows:

(1) If, on the hearing of an application under section 53, the court is satisfied on the balance of probabilities that the offender to whom the application relates has contravened or is contravening a condition of a supervision order, the court must ‑

(a) rescind the supervision order and make a continuing detention order in relation to the offender; or

(b) except as provided in section 29, make an order amending the conditions of the supervision order, or extending the period for which the offender is to be subject to the supervision order, or both; or

(c) except as provided in section 29, make an order affirming the supervision order without amendment or extension.

(2) ...

(3) In deciding which order to make under subsection (1) or (2), the paramount consideration is to be the need to ensure adequate protection of the community.

27 The respondent, given that he is subject to the Supervision Order, is an 'offender' to whom the application relates within the meaning of s 55(1).[8]

28 The references in s 55(1) to a 'continuing detention order' are references to 'an order that the offender be detained in custody for an indefinite term for control, care, or treatment'.[9] The references in s 55(1) to a 'supervision order' are references to 'an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate, in accordance with s 30'.[10]

(1) A court cannot make, affirm or amend a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made, affirmed or amended.

(2) The onus of proof as to the matter described in subsection (1) is on the offender.

(3) This section does not apply to the making of an interim supervision order.

30 The term 'standard condition' is defined in s 3 of the Act to mean, in relation to a supervision order, a condition that under s 30(2) of the Act must be included in the order. Section 30(2) of the Act specifies seven conditions that must be included in any supervision order.

31 Therefore, the effect of s 29(1) and s 29(2) of the Act is that the offender must satisfy the court on the balance of probabilities that he will substantially comply with the standard conditions set out in s 30(2) before the court can amend and/or extend a supervision order pursuant to s 55(1)(b) or affirm a supervision order pursuant to s 55(1)(c).

32 For the court to be satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions of a supervision order, it must be satisfied that the offender 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 supervision order and the Act, namely the adequate protection of the community by management and mitigation of the risk that the offender will commit a serious offence.[11]

33 Even if the court is satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions set out in s 30(2), this will not necessarily mean that a supervision order should be amended, extended or affirmed. This is because by reason of s 55(3) the paramount consideration, in deciding whether to make an order under s 55(1), is the need to ensure adequate protection of the community. Accordingly, even if the court is satisfied that an offender will substantially comply with the standard conditions of a supervision order, there may be circumstances in which, despite such a finding, the court is not satisfied that releasing the offender on a supervision order will ensure adequate protection of the community.[12]

34 At the hearing of the application the applicant tendered without objection, a Book of Materials comprising two volumes, volume 1 being dated 5 November 2021[13] and volume 2 being dated 17 November 2021.[14]

35 Volume 1 of the Book of Materials contains a variety of materials relating to the respondent including prison records, medical records, previous judgments, previous reports and records relating to his performance while on the Supervision Order. Volume 1 also contains the particulars of the respondent's contraventions of the Supervision Order that are relied upon by the applicant as contraventions for the purposes of s 55(1) and an affidavit affirmed by Ms Gabriela Serrano, a Senior CCO employed by the Department of Justice's (Department) Corrective Services Division and based at the COMU, dated 9 June 2021. Ms Serrano's affidavit was affirmed and filed in support of the application at the time of the making of the application.

36 Volume 2 of the Book of Materials contains the following reports prepared specifically for the application:

1. A report prepared by Dr Gosia Wojnarowska, Forensic Consultant Psychiatrist, dated 15 November 2021 (Psychiatric Report);[15]

2. A Psychological Intervention Progress Report prepared by Ms Julia Morrison, Senior Counselling Psychologist with the Department's Specialist and Forensic Psychological Services (SFPS), dated 14 October 2021 (Intervention Report);

3. A High Risk Serious Offender Treatment Progress Report prepared by Ms Sarah Ballantyne, Senior Counselling Psychologist, with the Department's Forensic Psychological Service (FPS), dated 11 November 2021 (Treatment Progress Report); and

4. An Adult Community Corrections Performance Report prepared by Mr Luke Carmichael, Senior CCO with the COMU, dated 16 November 2021 (Performance Report).

37 At the hearing of the application the applicant also tendered without objection an Occupational Therapy Functional Capacity Assessment Report prepared in relation to the respondent by Mr Carlo Divita, Occupational Therapist, dated 11 May 2021 (Occupational Therapy Report).[16]

38 At the hearing of the application Dr Wojnarowska, Ms Ballantyne and Mr Carmichael were called by the applicant to give supplementary oral evidence.

39 The respondent did not adduce any evidence at the hearing of the application.

40 Dr Wojnarowksa was responsible for assessing the respondent for the purposes of, and provided evidence on, the original application made in relation to the respondent under the DSO Act and the review conducted in 2020 under the Act.

The respondent's serious sexual offending and serious sexually motivated offending

41 In The State of Western Australia v Warmdean[17] Fiannaca J set out in detail the facts of the respondent's sexual offending and sexually motivated offending. My below recital of the respondent's offending is drawn from his Honour's judgment.

The offences for which the respondent was sentenced in April 2013

42 On 11 April 2013 the respondent was sentenced in the Perth Children's Court for, among other offences, one offence of indecent assault, two offences of aggravated indecent assault and one offence of assault with intent to rob. He was sentenced to a total of 5 months detention for the offences.

43 The aggravated indecent assault offences and the assault with intent to rob offences committed by the respondent are 'serious offences' as defined in s 5(1) of the Act.

44 On 12 September 2012 the victim, a 37-year-old woman, was walking in the company of a counsellor in a public reserve in Balga. The respondent, who was 14 years old at the time, approached the victim and grabbed and squeezed her left breast. The victim was shocked and knocked the respondent's hand away. The victim took refuge behind her counsellor. The respondent then stared at the victim and asked to see and feel her breasts. The victim and the counsellor walked away. The respondent continued to stare at, and call after, the victim.

45 At around 7.45 am on 8 November 2012 the respondent, who was 15 years old, was riding his bicycle on a street in Balga. The victim, a 15-year-old female, was walking along the street on her way to school. The respondent rode past the victim and ran his hand along her leg and up under her skirt. The victim knocked the respondent's hand away before breaking into tears. The respondent rode away. The offence was aggravated because of the age of the victim.

46 At around 3.00 pm on 18 November 2012 the respondent was walking along a bush track in a public reserve area in Balga (a different reserve to the one in which he committed the indecent assault offence). The female victim, who was 55 years old, was walking along the bush track with her dogs in the opposite direction to the respondent. The respondent approached the victim and struck up a conversation about the dogs. The victim became unsettled by the respondent's demeanour. When the victim went to walk past the respondent, the respondent reached out and touched the victim's right breast. The victim knocked the respondent's hand away. The respondent then produced a Stanley knife, pushed the blade out and pointed the knife in the victim's direction in a threatening manner. The victim cried out which caused the respondent to turn and walk away. The offence was aggravated because the respondent was armed with a weapon.[18]

47 At approximately 10.30 am on 22 January 2013 the victim, who was a high school student, was walking through the public reserve in Balga in which the respondent had committed the second aggravated assault offence. The victim was on her mobile phone. The respondent, who was still 15 years old, approached the victim carrying a short of piece of wood. The respondent swung the piece of wood at the victim and struck her on the right thigh causing some scratches and redness. The victim fled and the respondent chased her repeatedly shouting, 'Get into the bush'. The victim shouted for help and a nearby car slowed down and at which point the respondent fled.

48 When the respondent was interviewed by the police about the offence he initially denied being the offender but eventually admitted that he had hit the victim with the piece of wood. The respondent said that his intention was to steal the victim's mobile phone and money. The respondent said he was angry with himself because he got caught and might get detention.

49 During the respondent's sentencing hearing the suspicion that the offence was sexually motivated was raised. However, the magistrate sentenced the respondent on the basis that his sole motivation for committing the offence was to steal from the victim.

50 In more recent times the respondent has admitted that although he intended to steal property from the victim, the offence was sexually motivated and that he had been watching pornography before committing the offence.

The offences for which the respondent was sentenced in November 2013

51 On 13 November 2013 the respondent was sentenced in the Perth Children's Court for one offence of aggravated indecent assault and one offence of deprivation of liberty. He was sentenced to a total of 12 months detention for the offences. Both offences are 'serious offences' as defined in s 5(1) of the Act.

52 On the morning of 19 February 2013 the respondent, who was 15 years old at the time, took a kitchen knife from his home and rode his scooter to the centre of the reserve in Balga in which some of his prior offending had occurred. The respondent stopped near the centre of the park where he sat and waited.

53 Between 9.00 am and 9.30 am the respondent saw two young women jogging in the reserve. One of the women, who was 19 years old, was pushing a pram in which she had her 2-year-old daughter.

54 The respondent watched the women for a short time before approaching them with the knife in his right hand. The respondent grabbed one of the women, the victim, around the chest and pointed the end of the knife towards her face. The respondent attempted to get the victim to follow him saying, 'Follow me, I won't hurt you or kill you, just follow me'. The other woman tried to pull the victim away from the respondent. The respondent continued to hold the victim around the neck for several minutes repeatedly saying, 'Follow me'. The respondent then gestured with the knife towards some bushes saying to the victim, 'Come with me, just you'. The victim did not fight the respondent's grip because she feared she would be stabbed. After several minutes the respondent let go of the victim and held her upper arm tightly, pulling her towards the bushes. The victim tried to give the respondent her phone but he said, 'I don't want it, just follow me'. The respondent then stood close to the victim and placed his left palm on her stomach on top of her clothes while still holding the knife in his right hand. The respondent said, 'Let me feel you'. The respondent then tried to drag the victim towards the bushes. The other women had hold of the victim and was dragged along a couple of metres towards the bushes. The victim began yelling for help at which point the respondent let go and ran off through the bushes.

55 When the respondent was interviewed by the police on 26 April 2013 he said that he had gone to the park on his scooter and had thrown his scooter into the bush intending to grab 'and pull them into the bush'. He said he watched the women for 'a bit'. Initially the respondent denied that his conduct was sexually motivated claiming that he only intended to rob the victim. However, he eventually agreed that his offending was sexually motivated.

56 The indecent offence was aggravated because the respondent was armed with a weapon.

The offences for which the respondent was sentenced in July 2016

57 On 27 July 2016 the respondent was sentenced for one offence of aggravated indecent assault and one offence of assault occasioning bodily harm. The offences were committed during the one incident. The aggravated indecent assault was the last of the respondent's sexual offences and is a 'serious offence' as defined in s 5(1) of the Act.

58 Between 9.10 am and 9.30 am on 18 December 2015 the respondent, who was 18 years old, followed a 60-year-old woman as she walked from the West Leederville train station along a footpath near some units in Subiaco. The victim walked through a gap in a fence that led to her unit complex. The respondent grabbed the victim from behind, around her throat and waist. The respondent lifted the victim off the ground and threw her onto the ground. The respondent then removed the victim's pants and underwear while keeping her face down in the sand. The respondent kept the victim on the ground using significant force, kneeing the victim in the ribs. An unknown person shouted out at the respondent which caused him to flee. The victim suffered grazing to her knees and foot, bruising to her throat, cuts to her face and fractured ribs on her left side.

59 The respondent was interviewed by the police on 30 December 2015. The respondent eventually admitted that he had attacked the victim claiming that he had intended to rob her and that he had in fact stolen money. No money was actually stolen.

60 The respondent was sentenced to 22 months imprisonment for the aggravated indecent assault. No separate penalty was imposed for the offence of aggravated offence occasioning bodily harm as the bodily harm was one of the aggravating circumstances of the aggravated indecent assault.

61 In The State of Western Australia v Warmdean Fiannaca J encapsulated the pattern of the respondent's above referred to sexual and sexually motivated offending in the following terms:[19]

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.

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.

The decision of Curthoys J in The State of Western Australia v Warmdean [No 2]

62 In deciding that the respondent remained a high risk serious offender, but that the need to ensure the adequate protection of the community against the risk posed by him could be met by rescinding the CDO and releasing the respondent on the Supervision Order, Curthoys J relied in part on the fact that a number of the recommendations that had been made by Fiannaca J for the respondent's ongoing care and treatment while subject to the CDO had been implemented. The recommendations that Curthoys J found had been implemented, either in part or in full, were as follows:[20]

1. The respondent had completed an Intensive Sex Offender Treatment Program (ISOTP) on 10 August 2020;

2. Since 20 September 2018 the respondent had engaged in individual counselling sessions with a senior counselling psychologist directed at providing him with assistance to mitigate some of his deficits in memory, learning and interpersonal skills, and addressing his abuse of alcohol and substances;

3. Consideration had been given to providing the respondent with culturally appropriate mentoring, ideally with an Aboriginal mentor. Although a suitable mentor had not been identified, the respondent would be provided with 12-hour support by support workers some of whom would be Indigenous Australians. The support to be provided by the support workers would be beyond the support that would be provided by a mentor; and

4. Stable and supported accommodation had been located for the respondent.

63 In arriving at his decision Curthoys J also placed reliance on Dr Wojnarowska's evidence. Dr Wojnarowska's evidence was that since she had last reviewed the respondent for the purposes of the original application under the DSO Act he had clearly made progress, had retained a lot of material, and was very open and insightful.[21] Dr Wojnarowska's evidence was also that the high risk of the respondent committing further sexual offences if he was not subject to a restriction order could be mitigated by appropriate psychological treatment and management by the COMU.[22] In short, Dr Wojnarowska's evidence was that she was supportive of the respondent being released into the community on a supervision order with appropriate conditions.[23]

64 Curthoys J, in arriving at his decision to release the respondent on the Supervision Order, also took into account the fact that a National Disability Insurance Scheme (NDIS) plan for the respondent had been approved and that the level of supervision and training provided for under the plan would ensure a high degree of supervision for the respondent once he was released into the community.[24] His Honour noted that although the primary role of the NDIS plan would be to provide support for the respondent's disabilities, the physical presence of a person or persons in the respondent's accommodation with the respondent from 7.00 am to 7.00 pm would ensure that he was closely supervised.[25]

65 Curthoys J summarised his reasons for rescinding the CDO and releasing the respondent on the Supervision Order in the following terms:[26]

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.

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.

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.

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.

66 The respondent is now 24 years old. He has spent a significant portion of his childhood years in detention and a significant portion of his young adult life in prison.

67 The respondent has very limited familial support in the community.

68 The respondent's father died in 2018 while the respondent was in custody. The respondent continues to experience grief issues arising from the loss of his father. Since the death of his father the respondent's relationship with his stepmother has deteriorated.

69 The respondent's mother died recently. The respondent's mother did not raise him and was a source of neglect and abuse in his childhood. Nonetheless, the death of his mother has compounded the grief issues that he has arising from the passing of his father.

70 The respondent has two brothers who are in other prisons. He has reported enjoying occasional contact with them.

71 Since being returned to prison the respondent has had regular telephone contact with his sister. He describes her as a source of support.

72 The respondent suffers from neurological deficits that affect specific areas of cognition and functioning. The respondent does have a cognitive disability.[27]

73 The respondent has been assessed as meeting diagnostic criteria for Foetal Alcohol Spectrum Disorder (FASD) and as a consequence has been provided with funding through the NDIS.

74 The respondent has been diagnosed with anxiety and depression and is taking prescribed antidepressant medication.

75 Prior to committing the first of his sexual offences as a 14‑year‑old in September 2012, the respondent had accrued a very large number of convictions for a variety of offences including criminal damage, stealing, attempted stealing, stealing a motor vehicle, attempting to steal a motor vehicle and aggravated burglary. Further, after being convicted as a juvenile of his various sexual offences and while still a juvenile, the respondent committed a significant number of stealing, burglary and aggravated burglary offences.[28]

The respondent's contraventions of the Supervision Order

76 For the purposes of the application, or more specifically for the purposes of its contention that the court should under s 55(1) find on the balance of probabilities that the respondent has contravened a condition of the Supervision Order, the applicant identifies and relies upon 13 contraventions of the Supervision Order. Nine of the relied upon contraventions are the contravention offences. The remaining four relied upon contraventions were not made the subject of a charge under s 80(1) of the Act (uncharged contraventions). However, the respondent admits committing the uncharged contraventions.

77 I have already referred in broad terms to the nature of the contravention offences. I turn now to refer in more detail to the facts of the contravention offences.[29]

78 On 16 February 2021 the respondent's mobile phone was reviewed by his CCO. The review revealed that a message and a possible nude photograph from an unknown Facebook user had been deleted on the day prior to the review.

79 The respondent admitted to the CCO having deleted a message which included a link to a website and which was similar to other messages previously received by him inviting him to join 'sex chat' rooms.

80 The respondent stated to the CCO that there could have been a nude photograph on his phone which had been deleted. However, he also stated that he could not remember exactly if this had occurred.

81 The respondent also stated to the CCO that he had deleted an entire conversation thread between himself and a female with whom he had been in regular contact. He stated that he and the female may have 'liked' each other but that the relationship had broken down and that as a result he had deleted all of his interactions with her.

82 The respondent's deletion of the nude photograph, the message and the conversation thread contravened condition 58 of the Supervision Order (contravention 1).

Charges MC PE 11202/21-MC PE 11204/21 - contraventions 2 - 4

83 On 2 March 2021 the respondent's mobile phone was reviewed by his CCO. The review of the phone revealed the following:

1. The deleted items folder on the phone contained a quantity of images which included multiple images of a female associate of the respondent and an image of two young women dressed in bikini swimwear. The respondent did not seek the permission of his CCO or the police to delete the images from his phone. The respondent's deletion of the images contravened condition 58 of the Supervision Order (MC PE 11202/21) (contravention 2);

2. The phone contained photographs which displayed the respondent posing alongside two male peers. The photograph had been taken from a distance. It was evident that the respondent had not taken the photograph and that it had been taken by someone who the respondent had allowed to use his phone for the purpose of doing so. The respondent's conduct in this regard contravened condition 55 of the Supervision Order (MC PE 11203/21) (contravention 3); and

3. The YouTube search history on the phone included, contrary to condition 43, videos entitled 'South African Ladies Show off their b**bs, curves and stunning beauty' and 'Survival Skills: Primitive Life-Fishing skills from deep pits ...' The 'Survival Skills' video depicted a person/creature attacking a young woman on her back on the ground and holding her spread legged by the ankles. The video was suggestive of an attack of a sexual nature (MC PE 11204/21) (contravention 4).

84 On 10 March 2021 the respondent attended the SOMS offices. He was arrested. He declined to participate in a record of interview.

85 On 8 March 2021 the respondent's mobile phone was reviewed by his CCO. The review uncovered message threats which contained images of children suspected to be images of the respondent's immediate family. The respondent had failed to disclose the images at any time prior to March 2021 and did not seek permission to be in possession of the images. The respondent's possession of the images in the absence of authorisation contravened condition 59 of the Supervision Order (contravention 5).

Charges MC PE 13023/21 and MC PE 13024/21 - contraventions 6 - 7

86 On 6 March 2021 the respondent was with his support worker at McDonald's in Perth. While at McDonalds the respondent came across his 16 year old brother. The respondent spoke to his brother for a few minutes with the support worker. The respondent had opportunity to break away from his contact with his brother but failed to do so. In speaking to his brother and not breaking away from his contact with his brother the respondent breached condition 46 of the Supervision Order (MC PE 13023/21) (contravention 6).

87 Further, while in contact with his brother the respondent requested his support worker to use his, that is, the respondent's, mobile phone to take a photograph. The respondent, in breach of condition 55 of the Supervision Order, gave his mobile phone to the support worker who used it to take a photograph for the respondent (MC PE 13024/21) (contravention 7).

88 On 10 March 2021 the respondent attended the SOMS offices. He was arrested for the offences. He declined to participate in an interview.

89 On 8 March 2021 the respondent contacted his 16-year-old brother by mobile phone messaging and made plans to meet his brother. The respondent was driven to the Noranda Shopping Centre by his support worker where they picked up the respondent's brother and drove to the Mirrabooka Shopping Centre to spend time together. Prior to meeting his brother the respondent did not seek the permission of his CCO to do so. The respondent's conduct in meeting his brother without obtaining permission to do so was in contravention of condition 46 of his Supervision Order (contravention 8).

90 On 10 March 2021 the respondent attended the SOMS offices. He was arrested for the offences. He declined to participate in an interview.

91 On 9 March 2021 the respondent attended a meeting with his CCO. A review of his mobile phone was conducted. The review revealed that there had been a Facebook log in in the name of 'Beau Wade'. Beau Wade was a friend of the respondent with whom the respondent had recently been in contact with. The respondent denied knowing the password for the 'Beau Wade' account. The respondent's conduct in allowing Beau Wade to access Facebook using his mobile phone was in contravention of condition 55 of the Supervision Order (contravention 9).

92 On 10 March 2021 the respondent attended the Office of SOMS. He was placed under arrest. He declined to participate in an interview.

93 The facts of the uncharged contraventions are as follows.[30]

94 On 4 February 2021 the respondent attended the residence of a female not previously known to him in the company of his support worker. The female was a friend of the support worker. The respondent and his support worker were at the residence for approximately two hours during which time the respondent went inside the residence to go to the toilet on at least one occasion. The respondent was aware that by being at the residence he was breaching the Supervision Order.

95 At a supervision session on 5 February 2021 the respondent initially asserted that he had waited in the car while the support worker visited the female friend. He next asserted that he had entered the property out the front. Ultimately he disclosed that he had entered the residence once to go to the toilet, that numerous females were present at the residence and that he believed that children may also have been present although he did not see them or interact with them. The respondent also disclosed that he engaged with the females who were present at the residence and that alcohol was being consumed. The respondent denied that he had consumed alcohol or used any illicit substances.

96 By entering the residence in which females were present without prior approval the respondent contravened condition 44 of the Supervision Order (contravention 10). Condition 44 of the Supervision Order provides that the respondent is not to enter any residential address in which a female is present, resides or is known to reside unless authorised in advance by a CCO. The respondent was issued with a written warning letter by a CCO for this contravention.

97 On 9 February 2021 the respondent's CCO identified that the respondent had intentionally concealed his movements on 4 February 2021 by failing to record the visit to the residence of the female in his daily diary. The respondent's failure to record the visit to the residence was in contravention of condition 37 of the Supervision Order (contravention 11). Condition 37 of the Supervision Order provides that the respondent is to maintain a daily diary of his movements, activities and associations as directed by a CCO and is to present the diary to a CCO and/or a police officer upon request. The respondent was issued with a written warning letter by a CCO for this contravention.

98 On 6 February 2021 the respondent purchased a smart phone. On 9 February 2021 the phone was reviewed by the respondent's CCO during a supervision session.

99 During his review of the phone the CCO identified that the respondent had received and subsequently deleted an early image of a female who was unknown to him and had deleted images of children who were family members. By deleting the images without prior approval the respondent contravened condition 58 of the Supervision Order (contravention 12). The respondent was issued with a written warning letter by the CCO for this contravention.

100 During the same supervision session on 9 February 2021 the CCO also discovered from his review of the respondent's phone that there were within his Facebook chat application images of child family members. By possessing these images within the Facebook chat application without prior approval the respondent was in contravention of condition 59 of the Supervision Order (contravention 13). The respondent was issued with a written warning letter by the CCO for this contravention.

The respondent's behaviour, attitudes and conduct while on the Supervision Order prior to being returned to prison General attitude[31]

101 The respondent maintained a sense of ambivalence towards community supervision after being released on the Supervision Order. He regularly and frequently advised his CCO that he felt as though the Supervision Order was too onerous and that he would be better off returning to custody. He maintained the stance that he is more comfortable in prison because it is an easier and less restrictive lifestyle in contrast to being subject to the Supervision Order. He expressed on numerous occasions that his limited desire to remain in the community is attached to his desire to be closer to some of his immediate family and peers. However, he also said that he is often also drawn to his family and friends in custody including his biological brothers and some peers who he views as being brothers to him.

102 On 5 February 2021 the respondent stated to his CCO that if he was to intentionally self-sabotage he would do so by reoffending in a violent manner or by committing property offences. He stated that his intention would be to make sure that he was returned to custody where he believed that he had more freedom than under the conditions of the Supervision Order.

103 The respondent's attitude towards the Supervision Order were a constant target of intervention by both the respondent's CCO and his psychologist and efforts were made to address his ambivalence and bolster his motivation. However, the respondent was largely resistant to these efforts. Further, the respondent's concrete thinking and problem solving style complicated matters further with any progress made often being attenuated by non-compliance warnings and a subsequent loss of motivation.

104 The respondent's compliance with the Supervision Order did improve after his formal contraventions in March 2021. The respondent appeared to demonstrate an improvement in his motivation and an improved commitment to compliance towards the latter stages of his time in the community. However, his underlying hostility and ambivalence continued to pervade his engagement and approach, particularly if he was challenged or if issues of compliance were raised.

105 I have referred to the fact that volume 1 of the Book of Materials contains an affidavit sworn by Ms Gabriela Serrano affirmed on 9 June 2021. None of the contents of Ms Serrano's affidavit were challenged by the respondent. In her affidavit Ms Serrano deposes to the following matters.[32]

106 On 11 May 2021 the respondent attended a supervision appointment with his CCO. During the appointment the respondent stated that he was experiencing suicidal thoughts. In order to give the respondent some respite in the context of his suicidal ideation he was granted a curfew extension to 7.30 pm to allow him to attend Scarborough Beach with his support worker from Plan and Grow. The respondent attended Scarborough Beach without issue.

107 Later on 11 May 2021 the respondent continued to express suicidal ideation. He was therefore taken to Royal Perth Hospital (RPH).

108 At 11.50 pm on 11 May 2021 the respondent was discharged from RPH. He was prescribed sleeping tablets. He returned home by 12.08 am on 12 May 2021.

109 At an appointment with his general practitioner in the days following his admission to RPH the respondent was prescribed antidepressant medication.

110 On 4 June 2021 the COMU was notified by Plan and Grow that an ambulance had been called to take the respondent to hospital as he was again expressing suicidal ideation. Plan and Grow also called the police who attended the property until the ambulance arrived. The respondent was taken to St John of God Hospital in Midland (SJGH Midland).

111 The respondent was discharged from SJGH Midland on the night of 4 June 2021. He was provided with further antidepressant medication. He returned home by 12.18 am on 5 June 2021.

112 On 8 June 2021 the respondent attended a supervision appointment with his CCO. The respondent informed his CCO that on 4 June 2021 he had attempted suicide by trying to wrap a cord around his neck and by grabbing a kitchen knife. The respondent told his CCO that his plan was to go outside and cut his throat with the knife but that his support worker saw him with the knife and grabbed the knife off him. The respondent's account indicated that the support worker was required to use some physical restraint in order to take the knife off him. The respondent also reported trying to stab himself in the stomach with a pen and hitting his head against a wall.

113 Prior to being returned to prison the respondent's suicidal ideation was being monitored by the COMU, Plan and Grow, and a senior counselling psychologist from the SFPS and the FPS. Further, the respondent was still being prescribed anti-depressants by his general practitioner.

114 In her affidavit Ms Serrano also deposes to 'concerning behaviours' of the respondent that were additional to his contraventions of the Supervision Order and which in part prompted the making of the application.[33]

115 Before detailing the deposed to 'concerning behaviours' I make two points. First, although the applicant does not specifically rely upon any of the 'concerning behaviours' as contraventions for the purposes of s 55(1) (even though some of the behaviours did in fact amount to contraventions of the Supervision Order) the applicant does point to the 'concerning behaviours' in support of its contention as to the appropriate order to be made consequential upon a finding that the respondent has contravened conditions of the Supervision Order. Second, the respondent does not dispute that he did engage in the 'concerning behaviours'.

116 The 'concerning behaviours' deposed to by Ms Serrano are as follows.

117 Throughout the time that the respondent was in the community subject to the Supervision Order his CCO attempted to distinguish between conduct of the respondent caused by his cognitive deficits and deliberately deceitful behaviour. The respondent did engage in deliberately deceitful behaviour.

118 On 9 March 2021 Plan and Grow informed the COMU that the respondent was seeking to make contact with his 16-year-old brother. Plan and Grow reported that they had attempted over several hours to persuade the respondent to contact the COMU and to request permission to meet with his brother in person. Plan and Grow reported that the respondent acknowledged that he was by the conditions of the Supervision Order required to contact the COMU to request permission to meet his brother but indicated that he was not going to do so for fear that he may be denied permission. The respondent advised Plan and Grow that he would see his brother and would report the contact to his CCO after the event. In an attempt to conceal his behaviour the respondent asked his support worker not to inform the CCO or the management staff at Plan and Grow of his contact with his brother.

119 On several occasions the respondent was found to have deleted from his electronic devices images and content including nude images of females and images of females in bikini swimwear. The nude images of females constituted pornography under condition 43 of the Supervision Order. The deletion of the images occurred in contravention of condition 58 of the Supervision Order. The respondent was issued with instructions by the COMU and the SOMS on several occasions in relation to him accessing pornographic images.

120 The respondent appeared to come into possession of pornographic images on at least two occasions via his mobile telephone before deleting the images from his phone. His possession of these images was revealed through viewing other information on his telephone including conversations that he had with peers. The respondent subsequently admitted to deleting the images.

Frustration with requirements of the Supervision Order

121 On 11 May 2021 the respondent, during a supervision appointment with his CCO, expressed frustration with the requirements of the Supervision Order and with not being able to do what he wanted. The respondent reported extreme frustration and that he felt stuck between a rock and a hard place. The respondent stated that he felt that his options for escaping the situation were death or prison. The respondent had in fact first reported these beliefs on 5 February 2021 and had on that occasion said that if he was to intentionally self-sabotage by reoffending he would do so in a violent manner or by committing property offences.

Sexual preoccupation, possible deviant sexual interest and no appropriate sexual outlet

122 When the respondent was released from custody on the Supervision Order he was in possession of copious quantities of highly sexualised images of women including images showing women partially naked and completely naked. The respondent voluntarily surrendered the images to the COMU on the day of his release.

123 On 21 January 2021 Mr Carmichael, having reviewed the surrendered material, offered to return some of the material to the respondent so that he had a sexual outlet. However, the respondent refused to accept the return of the material on the basis that he did not want to find himself in breach of the Supervision Order.

124 Subsequently, the respondent's Risk Management Team became concerned that the respondent's surrender of his sexualised images of women had contributed to him accessing child focussed material including watching the television program 'Dance Moms' (which follows the training and careers of children in dancing and entertainment and which often shows pubescent and pre-pubescent females in crop top and short form fitting active wear). On 24 January 2021 the respondent admitted watching, and masturbating to, 'Dance Moms'. He also admitted to watching videos on his support worker's Stan video streaming account which depicted teenagers engaging in sexual acts.

125 Although the respondent continued to deny any sexual pre‑occupation throughout the time that he was in the community, it became apparent from reviews of his mobile phone and from discussions with him that he was struggling with the lack of a sexual outlet.

126 On 13 April 2021 the respondent disclosed to Mr Carmichael increased sexual pre-occupation. The respondent reported that on several occasions he had been in the city, had seen females that he did not know, had become sexually aroused by seeing the females, and had then found a secluded location such as a public toilet to masturbate.

127 On 16 April 2021 a check of the respondent's devices at his home by Mr Carmichael revealed that he had viewed various YouTube videos depicting female children under the age of 18 years, including prepubescent females, completing gymnastic and dance related stretches.

128 On 20 April 2021 the respondent admitted to Mr Carmichael that he had watched the YouTube videos for the purpose of achieving sexual gratification. The respondent also admitted that he was attracted to teenage females and that prior to being sentenced to his last term of imprisonment he had engaged in sexual relationships with females aged 15-16 years. The respondent reported that his attraction to teenagers had intensified since he had been approached by several underage females in the Perth Central Business District. He reported that although he had 'flirted' with these females he dealt with these approaches appropriately but that he had been 'frustrated' that he 'could not do anything' because of the Supervision Order.

Vulnerable internet based behaviour caused by cognitive deficits

129 A review of the respondent's Facebook messenger chat history by his CCO revealed that since 6 February 2021 the respondent had indicated a willingness/desire to engage in 'sex video chats' and 'personal chatting girls clubs' with internet strangers (without realising these were accounts of fictitious people).

130 On 8 June 2021 the respondent reported that on 4 June 2021 near the Perth Train Station he nearly became involved in a physical altercation with an older man. The respondent reported that he became upset with an older male who was 'picking' on a man he described as his 'uncle' in the city. The respondent's account indicated that both men were visibly aggressive towards each other at the time. The respondent reported that he was stopped from physically assaulting the older man by his support worker who had to physically pull him away to stop the altercation.

131 The respondent's primary activities while in the community centred around going to shopping centres, loitering in the city in company with his support workers and antisocial peers and spending copious amounts of time on social media. The respondent demonstrated a lack of interest in engaging structured pro-social activities. The primary driver behind the respondent's associations with antisocial peers appeared to be a sense of loneliness and isolation.

132 Prior to being returned to custody the respondent was making some progress in this area and was actively seeking approval to attend a gym with one of his support workers. On 19 May 2021 approval was given for this to occur. However, the plan was put on hold while financial approvals were being sought. The plan had not progressed by the time that the respondent was returned to custody.

133 While in the community the respondent was subjected to eight urinalysis tests. He returned negative results on each occasion.

Support provided to the respondent by Plan and Grow while in the community on the Supervision Order[36]

134 The respondent was granted a NDIS funding plan which allocated sufficient funds to allow for his accommodation and full time support. Accordingly, from the time of his release on the Supervision Order the respondent had the full time support of the supported independent living agency, Plan and Grow. Plan and Grow's support of the respondent was funded by the NDIS.

135 It was proposed that the core support to be provided by Plan and Grow to the respondent would be to assist him in his development of skills and the capacity to live independently.

136 Prior to the respondent's release on the Supervision Order Plan and Grow had limited experience in working with sexual offenders and no prior experience working with offenders who had been deemed to be high risk serious offenders under the Act. Accordingly, the COMU provided training to Plan and Grow's support workers on numerous occasions both before and after the respondent's release on the Supervision Order. Nonetheless, there were several instances where Plan and Grow staff appeared to have been complacent or to have facilitated the respondent contravening the Supervision Order (for example, by taking him to a female's address, signing into private streaming accounts his smart television and taking photographs with his phone). This obviously impacted on the extent of the respondent's compliance with the Supervision Order.

137 Plan and Grow support workers do not employ restrictive practices and therefore will not physically prevent the respondent from engaging in conduct. Rather, the support workers attempt to assist the respondent to make his own decisions.

Support provided to the respondent by Uniting WA while in the community on the Supervision Order[37]

138 The respondent was accepted into the Uniting WA Specialist Re‑entry Support Program prior to his release on the Supervision Order.

139 At the commencement of the Supervision Order an interagency meeting was held between the COMU, the respondent's NDIS funded supports and Uniting WA. It was agreed that due to the respondent's 24 hour 7 days a week NDIS funded supports (Plan and Grow) Uniting WA would defer their engagement with the respondent until they were requested by the COMU to become involved. It was envisaged that Uniting WA would commence to provide support when the respondent's NDIS plan was reviewed in June 2021 when it was expected that there would be a decrease in NDIS funding and support.

140 On 19 May 2021 COMU proposed the re-engagement of Uniting WA to assist the respondent to engage in recreational and vocational activities. However, Uniting WA's re-engagement had not commenced by the time that the respondent was returned to custody.

The respondent's behaviour in prison since being placed on the Supervision Order[38]

141 The respondent has incurred no formal incidents or charges relating to misconduct since his return to prison.

142 On 13 September 2021 Mr Carmichael received information that the respondent had disclosed to two persons who had visited him that he had been using substances while in custody, specifically cannabis, methylamphetamine and suboxone. As a result of receiving this information, on 13 September 2021 Mr Carmichael contacted Hakea Prison to request that the respondent be subjected to urinalysis. The test was conducted on 15 September 2021 and returned a negative result to all substances.

143 On 14 October 2021 Mr Carmichael conducted an in-person prison visit with the respondent. Mr Carmichael discussed with the respondent the reports of his substance use. The respondent told Mr Carmichael that he had been using substances while in custody. The respondent stated that he had been smoking cannabis and injecting suboxone. The respondent stated that he evaded detection on substance tests because he knew how to play the system. The respondent stated that he was no longer using substances as the person who had been supplying his unit had been released from custody with the result that he and his peers no longer had any access to any substances. The respondent stated that he was 'waiting' for another supplier.

144 The respondent informed Mr Carmichael that he had been using illicit substances with his peers primarily for recreational purposes. The respondent stated that he had been consuming these substances before he found out that his mother had died and that he was not using them as a coping mechanism, but that there was an element of coping attached to his use.

145 Mr Carmichael asked the respondent if he had intentionally relayed the information regarding his substance use in the hope that Mr Carmichael would learn of the use and relay the information to the courts which would in turn hinder his prospects of release on a supervision order. The respondent agreed that this had partially been his intention. In Mr Carmichael's view the respondent's disclosure of his substance use presented as him making an attempt to self-sabotage his prospects of release.

146 On 24 October 2021 the respondent returned a further negative urinalysis sample.

147 On 14 October 2021 the respondent presented to Mr Carmichael with a significant number of superficial cuts to his arms. The respondent stated to Mr Carmichael that he had used a razor blade from a razor to cut himself as a means of distracting himself from his emotions. The respondent stated that he had considered cutting deeper and felt that if he was not in custody he would have done so.

148 On 14 October 2021 the respondent's conduct in cutting his arms resulted in him placed on the At Risk Management System (ARMS). The respondent was managed on a low ARMS regime comprised of four hourly observations and a once weekly review by the Prisoner Risk Assessment Group. The respondent was removed from ARMS on 29 October 2021.

150 Dr Wojnarowska interviewed the respondent at Hakea Prison on 22 September 2021.

151 The respondent was polite and appropriate in his interactions during the interview. His comprehension was sufficient to enable Dr Wojnarowska to conduct a meaningful assessment of him. There was no evidence of impression management and the respondent seemed to be sincere in most of his answers.

152 The respondent openly expressed doubts about his ability to successfully complete the Supervision Order. He appeared to be overwhelmed by the number of conditions of the Supervision Order and the effect they were having on his life. He stated that he was not looking forward to the day of his release as he felt he belonged in prison. He stated that he had 'mates and family here'.

153 The respondent told Dr Wojnarowska that his psychological counselling in the community was predominately focussed on his family problems and his emotional response to his family dynamics. The respondent stated that during counselling he was not forthcoming with details related to his sexual offending because he still experienced trust issues related to the government and associated his psychologist to be part of the government structure.

154 The respondent was able to identify that stress, boredom and loneliness were causal factors in him using substances and obsessively viewing pornography which then lead to him offending.

155 The respondent told Dr Wojnarowska that he started to 'slip' around February/March 2021 and that despite receiving warnings he mentally disengaged with the supports provided to him including psychological counselling. He stated that his mental state deteriorated rapidly and he experienced a 'breakdown' prior to being returned to prison. He stated that he became suicidal and that he had 'grabbed a cord and tried to strangle myself'. He stated that on another occasion he grabbed a knife and threatened to stab himself but was saved by his support worker.

156 When Dr Wojnarowska questioned the respondent about the conditions of the Supervision Order, the respondent stated that he had no objection to the conditions that restricted his use of drugs and alcohol, that imposed a curfew on him and that required him to be subject to Global Positioning System (GPS) monitoring. He stated that he found the conditions that required him to obtain approval before attending family gatherings or before visiting people difficult. He stated that the hardest condition was the condition that restricted his contact with his younger nieces, nephews, cousins and brother who were still under the age of 18. He stated that he is unable to pursue or engage any form of intimate relationship due to the requirement that he disclose his offending history. He stated that the prospect of his offending history being exposed to the wider community makes him feel embarrassed and concerned about his safety.

157 The respondent told Dr Wojnarowska that he thinks about sex but that it 'doesn't bother me anymore'. The respondent denied being preoccupied with sex or being at risk of sexually reoffending.

158 Dr Wojnarowska's psychiatric diagnosis of the respondent has not changed. In her opinion the respondent fulfils the diagnostic criteria for Antisocial Personality Disorder and Substance Use Disorder currently in remission. In Dr Wojnarowska's opinion the respondent's FASD diagnosis is highly relevant to the assessment of his treatment needs and his ability to comply with a management plan in the community.

159 Dr Wojnarowska undertook an assessment of the respondent's risk of committing further sexual offences. In doing so she made use of three risk assessment tools, the Static-99R, the Hare Psychopathy Checklist-Revised (PCL-R) and the Risk for Sexual Violence Protocol (RSVP).

160 The respondent's Static-99R score has not changed since Dr Wojnarowska's last assessment of him. The respondent's score placed him within the high-risk category of reoffending. Offenders with the same score as the respondent have a 25% risk of committing a sexual offence within 5 years. Dr Wojnarowska notes that results from the use of Static-99R underestimate the risk for the Indigenous population.

161 The respondent's score on the PCL-R has not changed since Dr Wojnarowska's last assessment of him. The respondent's score was in the low-moderate range and below the threshold usually required to confirm a diagnosis of psychopathy. The respondent's score on the PCL-R social deviance scale reflects the respondent's impulsivity, poor behavioural control, early behavioural problems, juvenile delinquency and revocation of conditional release. Research suggests that impulsivity improves with age in most individuals and can also improve with appropriate treatments.

162 In making use of the RSVP Dr Wojnarowska identified a large number of risks factors present in the respondent's case including the following:

2. Escalation in the frequency and severity of offending;

4. Problems with self-awareness: The respondent has a history of major deficits in this area which are identified as lack of confidence, communication problems and low assertiveness. During the assessment the respondent demonstrated an ability to clearly communicate his difficulties and presented as having insight into his deficits. He also presented as more confident and realistic about his situation;

5. Problems with stress and coping: There is no evidence that the respondent resorted to using illicit drugs while in the community and it appears that his use of pornography to meet his sexual needs rather than as a coping mechanism. However, it is clear that the respondent remains susceptible to decompensation during periods of stress as evidenced by his mental decline and self-harm attempts while in the community;

6. Problems resulting from child abuse: The respondent has never received any counselling in relation to his own victimisation. Undoubtedly there is an association between the respondent's early childhood trauma and offending;

7. Sexual deviance: The element of deviant behaviour is present in the respondent's sexual offending;

8. Major mental illness: There is no evidence of a major mental illness historically. Nor was there evidence of a major mental illness during the assessment. However, while in the community on the Supervision Order the respondent's mental state deteriorated and he developed depressive symptoms with suicidal attempt;

9. Substance use problem: Substance use has contributed to the respondent's offending;

10. Problems with intimate and non-intimate relationships: The respondent has never been in a long-term relationship and due to the conditions of the Supervision Order does not intend to enter into an intimate relationship. The respondent confirms that he does not trust people and has difficulty relating to them;

11. Problems with planning: The respondent has poor inhibitory control and his global behavioural dysregulation has a negative effect on his metacognitive problem solving;

12. Problems with treatment: Despite attending 53 sessions of an Intensive Sex Offenders Treatment Program and individual counselling the respondent's self-awareness and insight into his offending cycle has only just started to develop. The respondent's engagement while on the Supervision Order in the community varied. The respondent advised that his Plan and Grow support workers were like his family;

13. Problems with supervision: The respondent has demonstrated his capability to adhere to certain conditions but overall he presents as having future problems with supervision. The respondent acknowledged that he has always had problems with order compliance as he has great difficulty following rules and having limits placed on him. The respondent expressed feelings of hopelessness relating to his prospects of completing the Supervision Order.

163 In identifying the risk scenario for the respondent, Dr Wojnarowska points out that the respondent has consistently offended against females that are strangers to him. She considers that if the respondent reoffends it is likely that he will again offend against females who are strangers to him. She also considers that it is also likely that further escalation of his offending will take place and that if he is not stopped by a passer-by or a witness he is likely to sexually penetrate the victim.

164 Dr Wojnarowska considers that likely precursors to any sexual reoffending by the respondent include drinking alcohol, taking illicit drugs, and becoming sexually aroused after watching pornography or sexually frustrated.

165 In Dr Wojnarowska's view everyday life stressors, arguments with family members and boredom associated with a lack of structured activity will lead the respondent to resort to cannabis to regulate his mood. She considers this to be a risk factor. She also considers that an important risk factor is the respondent's limited opportunity to engage sexually with consenting age appropriate females.

166 In Dr Wojnarowska's view the main driving force to the respondent's offending will be his sexual frustration and anger associated with his personal circumstances facilitated by alcohol and/or drug intoxication.

167 In Dr Wojnarowska's opinion the respondent is at a high risk of sexual recidivism if he is not subject to the Act.

168 The respondent's feelings of hopelessness and lack of motivation to do well in the community potentially increases his risk of reoffending. Nonetheless, Dr Wojanrowska is still of the opinion that the respondent's risk can be managed in the community providing certain conditions are amended.

169 Dr Wojnarowska supports the recommendation that the respondent be given access to hard copy adult material that has been approved by his CCO.

170 In Dr Wojnarowska's view the granting of approval to the respondent to have contact with his family, including children, should be partially assisted by his support workers and his CCO. She considers that due to the respondent's cognitive deficits the process of applying for approval is daunting for him and that he tends to misinterpret the conditions resulting in him breaching the conditions.

171 As to future treatment of the respondent, Dr Wojnarowska has considered the use of anti-libidinal medication given the respondent's high levels of preoccupation with pornography which is an important factor in his reoffending. However, she notes that the respondent has been commenced on Escitalopram for the treatment of his depression, a common side effect of which is lower sexual drive. She therefore recommends that the respondent continue his use of Escitalopram and that the dose be increased to the desired effect on his libido.

172 Dr Wojnarowska considers that future psychological treatment of the respondent should involve both psychological support and offence specific treatment addressing his criminogenic needs.

173 In Dr Wojnarowska's view the respondent will require significant support at the time of his reintegration into the community. She considers that the respondent has developed a good relationship with his service provider Plan and Grow and that a request for their continued support should be made.

174 In her evidence‑in‑chief Dr Wojnarowska gave the following supplementary evidence.[39]

175 The most obvious change that she has observed in the respondent since she assessed him for the purposes of the November 2020 review of the CDO is that he is now expressing the view that he wants to remain in prison rather than be released into the community. This is in stark contrast to how he presented prior to being released on the Supervision Order.

176 At the time that she prepared her report she did not have access to the Performance Report. She is now aware that the respondent has made statements to Mr Carmichael to the effect that he has been using illicit drugs since his return to prison. If the respondent has been using drugs since his return to prison his Substance Use Disorder is no longer in remission. So far as the truthfulness of the respondent's statements to Mr Carmichael are concerned, her 'hypothesis' is that that respondent has probably used some substances since being returned to prison but not to the extent that he reported to Mr Carmichael.

177 Since preparing her report she has, through reading the Performance Report, become aware of the proposed staged reduction in support to be provided to the respondent (referred to further below). Whether the proposed stage reduction in support will impact on the ability to manage the respondent's risk in the community will very much depend on his motivation and whether he wants to remain in the community and to do well. She thinks that irrespective of the number of support hours that are provided to the respondent, if he is determined not to be compliant he will not be compliant. However, if the respondent is motivated to be compliant, six hours per day of support from a support worker will, in her view, be sufficient to enable him to be managed. If this level of support is further reduced, the impact on the respondent's manageability will depend on 'where he is at' and whether during the period that he has had more hours of support he has made progress in developing prosocial links in the community.

178 The Occupational Therapy Report is an occupational therapy assessment which suggests an optimal scenario to improve the respondent's functioning in the community. The Occupational Therapy Report is not a risk assessment.

179 In cross-examination Dr Wojnarowka gave the following supplementary evidence.[40]

180 In her view, so far as the respondent's compliance with a supervision order is concerned the most significant issue is his attitude. The respondent's attitude is central to the issue of whether he can be managed in the community.

181 The respondent has been receiving a lot of support and clarification from his CCO and other people. He does have problems in retaining information and he does tend to misinterpret or catastrophise.

182 The respondent's feelings of being overwhelmed by the conditions of the Supervision Order are directly related to his cognitive problems that are secondary to his FASD.

183 The respondent's belief that he cannot cope with the conditions of the Supervision Order are related to the short period of time within which he contravened the order and his immaturity. The respondent is very immature. He is younger than his 24 years and this is associated with his neurocognitive difficulties.

184 In her view, giving the respondent access to hard copy adult pornography for limited periods of time would be helpful in managing his sexual drive. The problems arise when the respondent spends too much time viewing pornography as a result of having unlimited online access to it. The respondent's viewing of pornography should be for a sexual purpose not for the purpose of managing negative emotional states.

185 The fact that the respondent did not commit a sexual offence while in the community subject to the Supervision Order is of significance. This is why in her view the respondent can be managed in the community provided he is motivated to comply with the terms of the Supervision Order. She is more concerned about the respondent viewing child focussed material. This indicates that the respondent has an ongoing interest in this area.

186 The fact that the respondent deleted material from his phone reveals that he wanted to conceal conduct that he knew was wrongful conduct. However, this conduct is not new information in terms of her assessment of the respondent and his personality structure. The respondent does have antisocial traits and he is more prone to dishonesty than a person who does not have an antisocial personality disorder.

187 Individual psychological counselling is important in addressing the respondent's motivation to comply with the terms of a supervision order. However, also important is the respondent finding his place in society and being able to engage meaningfully. If the respondent does not engage he will be bored and feel lonely. She considers that it is important to explore the possibility of providing the respondent with an Aboriginal mentor to assist him to connect with his culture.

188 The major concern, in her view, is that the longer the respondent remains in prison the higher the risk of him committing further serious sexual offences will become. The respondent is very young and very impressionable. In her view the longer that the respondent is exposed to prison lifestyle the less able he will be to function in the community.

189 If the respondent remains in prison it is, in her view, appropriate for him to continue to engage in individual psychological counselling as regularly as possible.

190 In re-examination Dr Wojnarowska testified, in substance, that her recommendation is that the respondent's dose of antidepressant medication be increased in order to reduce his sexual drive and perhaps also his deviant sexual tendencies, and that if the increased dosage does not have the desired effect in this respect he should be trialled on antilibidinal medication.[41]

191 In response to questions from me, Dr Wojnarowska confirmed, in substance, that although she thinks that it would be easier for the respondent to understand and cope with his obligations under the Supervision Order if the number of conditions was reduced, she is not suggesting that any of the 59 conditions that are currently in place can be dispensed with without increasing the risk that he poses to the community. Rather, her view is that it would be preferable if the 59 conditions could be encapsulated in a lesser number of conditions so that the respondent is not faced with an order containing such a large number of conditions.[42]

193 The respondent has attended 42 one-hour individual psychological counselling sessions between 20 September and 15 October 2021. The respondent attended 19 sessions in 2021 while in the community and while in prison.

1. Support the respondent to emotionally process the loss of his mother with a focus on the appropriate expression of grief;

2. Continue to develop strategies to manage difficult emotions with a focus on healthy emotional expression, distress tolerance and self-regulation;

3. Further develop helpful responses to trauma symptoms;

4. Continue to develop positive coping self-care skills;

5. Ongoing focus on building capacity and developing pro-social stable relationships;

6. Further develop assertive communication skills;

7. Consolidate and further develop insight into the patterns of, and factors that contribute to, sexual offending;

8. Ongoing identification of risk related scenarios including substance use and relapse prevention; and

9. Identify protective factors and risk management strategies associated with reducing the risk of sexual reoffending.

195 The respondent commenced counselling with Ms Morrison in September 2018. For most of this time the respondent engaged well. However, there were times prior to his return to prison on 10 June 2021, and since his return to prison, when the respondent became more guarded in his interactions stating that there were things he could not talk about because he feared he would be reported.

196 During 2021 the focus of psychological intervention was on assisting the respondent to adjust to life in the community after 5 years imprisonment and assisting him to meet the requirements of the Supervision Order while in the community.

197 On being released into the community the respondent was seen on a weekly basis until his return to prison on 10 June 2021. During the respondent's time in the community psychological intervention included ongoing monitoring of his sexual behaviour and further development of his skills in self-management, emotional management and risk management.

198 The respondent experienced depressive symptoms including low mood and suicidal ideation from May 2021 at varying levels and continues to do so. When Ms Morrison explored with the respondent the matters that he had said that he could not talk about the respondent acknowledged in a session on 13 May 2021 that he had made a plan to take his life if he came to a time when he thought he could no longer manage the Supervision Order. The respondent also stated that the matters he would not talk about related to issues with his family that had triggered his low mood and suggested that he would only discuss these issues with his support worker at Plan and Grow. The respondent claimed that this worker would help him deal with his issues in a cultural spiritual way.

199 The respondent's mood and coping appeared to improve after he commenced antidepressant medication in mid-May 2021 and as protective factors were identified and additional coping strategies were introduced.

200 During Ms Morrison's sessions with the respondent he often referred to her and his CCO as 'the government' and stated that he could not be entirely open about his views and experiences given that he does not trust government workers. He suggested that his Plan and Grow support workers and supervisors were 'like family' as they were not government workers and would not inform on him. Ms Morrison addressed this issue several times with the respondent and spoke about the need for, and benefit of, open and genuine interactions. She emphasised to the respondent that an open authentic approach to intervention was necessary if he was to successfully participate in the community and reduce his risk of reoffending. During these discussions the respondent noted that while he had usually felt understood and supported by Ms Morrison he found it difficult to engage with her in a more relaxed and open manner because he feared that the information he provided would be relayed to other stakeholders and those in authority, specifically the police and his CCO. The respondent and Ms Morrison agreed that they would continue to reflect on and monitor issues associated with his engagement in sessions, particularly his sense of trust and his ability to disclose.

201 During Ms Morrison's more recent sessions with the respondent while he has been in prison his engagement has improved and he has been more spontaneous, particularly in relation to the recent death of his mother.

202 In Ms Morrison's view the respondent continues to struggle to manage emotions such as anger and distress without resorting to engaging in discussions of acting out to seek revenge. However, Ms Morrison notes that the respondent does tend to discuss how he is feeling with a range of others and that he has not engaged in any aggressive or violent behaviour at times of heightened stress in recent years.

203 The respondent is able to identify alternatives to aggression. He reported a number of examples where particular conflict may have escalated or he felt emotionally aroused and chose instead to seek support and talk through his emotions or take time out and walk away to calm himself. The respondent claimed that this was primarily due to the external control provided by the Supervision Order. However, in Ms Morrison's view it also indicates a level of emotion and behaviour regulation that the respondent has not previously demonstrated.

204 The respondent has a history of limited pro-social relationships beyond those with professionals. A lack of support has been an ongoing theme across the respondent's life and one that has been given considerable focus throughout his intervention to date.

205 The respondent can identify that anti-social relationships are a risk factor for him. However, in Ms Morrison's view the respondent continues to have some difficulties with discerning or admitting the antisocial nature of certain relationships. She considers that this seems to be partly related to the respondent having very few alternative sources of social support and the extent to which antisocial lifestyle relationships have been normalised for him.

206 According to Ms Morrison it is uncertain if the respondent's family members will establish and maintain contact with him in the future. When Ms Morrison asked the respondent about this situation he tended to minimise and deny that there were any concerns. He seemed to lack an understanding of what reciprocal and balanced family relationships involve.

207 During counselling sessions the respondent indicated an understanding of the process of seeking permission to associate with various people from his CCO as well as an understanding of why this was necessary while he was on his Supervision Order. Despite this understanding, the respondent often expressed frustration at the limitations the Supervision Order placed on him in relation to who he could associate with and the manner in which he could associate with others.

208 In Ms Morrison's view the respondent has a limited understanding of what constitutes healthy peer, partner and family relationships. In her view this remains an area to be examined on an ongoing basis as the respondent interacts with others particularly at a time he is released to the community.

209 According to Ms Morrison the respondent has experienced ongoing difficulties, both while in the community and more recently while in prison, with managing stress and maintaining the positive coping strategies he has developed through previous treatment. In Ms Morrison's view the respondent has tended to revert to past and problematic coping patterns. However, Ms Morrison considers that the respondent has demonstrated insight in this respect in that he has noted that he ordinarily suppresses his emotions and engages in problematic coping and finds it difficult to put alternatives strategies in place.

210 In light of the respondent's self-harming behaviour, Ms Morrison's recent sessions with the respondent have involved identifying potential risk to self and the consequences of actions as well as identifying an alternative coping strategy. When Ms Morrison last saw the respondent on 15 October 2021 he denied that he was at risk of self-harming. He stated that he was engaging with supportive peers in his unit and had requested to have a visit with a family member from another unit in the prison.

211 The respondent has identified that positive recreational activities and employment will provide him with purpose, routine and meaning. He has noted that his will assist him to avoid antisocial activities and to prevent him from relapsing into substance use.

212 During counselling sessions the respondent's sexual behaviour was regularly discussed. The discussions included the respondent's past use of pornography and what constitutes pornography, the respondent's management of his sex drive and arousal, the respondent's normalising of sexual urges and needs, and exploring the respondent's potential violent sexual fantasy.

213 Ms Morrison makes the point that the Supervision Order places restrictions on the respondent's ability to develop his capacity to engage in sexual relationships, express his sexuality and get his sexual needs met. Therefore, Ms Morrison has explored with the respondent the available means for him to manage his sexual needs. During these discussions the respondent has noted that he is sexually attracted to younger females but also to those of his own age. Ms Morrison considers that the respondent has not had any recent sexual experiences with age related females and that therefore his sexual imagery remains associated with his adolescence.

214 The respondent has reported that he would like to have an intimate relationship or to engage in casual sex with consenting females. However, he stated that he would have to tell a potential partner of his offending history, that he feels a strong sense of shame about his offending history and that he is therefore reluctant to do disclose his history. The respondent has discussed with his CCO accessing the services of a sex worker and suggested that he is open to this occurring but would prefer to meet someone and for the sexual contact to occur naturally.

215 The respondent has often reported a sense of hopelessness about meeting someone and engaging in sexual activity naturally in the future. In Ms Morrison's view the respondent struggles to make sense of how to establish relationships with females while on the Supervision Order. According to Ms Morrison the respondent's ongoing treatment needs relate to increasing his skills in sexual self-regulation, accessing appropriate sexual stimulus and monitoring any engagement in violent sexual fantasy.

216 Throughout the period of intervention there has been an ongoing focus on the respondent understanding and identifying relevant risk factors and situations, as well as developing strategies to manage these factors and situations. In Ms Morrison's view the respondent can readily identify risk factors and situations and can provide appropriate responses to risk related scenarios when these are explored with him.

217 Ms Morrison notes that when the respondent was in the community he made choices that put him in situations of potential risk and resulted in contraventions of the Supervision Order. However, Ms Morrison also notes that there were times when the respondent made appropriate choices and acted to mitigate his risk. She points to the occasion on which the respondent's support worker took him to a friend's home where there were young females who were drinking alcohol which the respondent did not consume when it was offered to him. Ultimately, in Ms Morison's view there is an ongoing need in the respondent's treatment to focus on his poor decision making and problem solving skills, and the difficulties that he may have in identifying potential risk situations and removing himself from such situations.

218 During counselling sessions focus was given to assisting the respondent to explore difficulties that he was having adjusting to life in the community and to the Supervision Order. The respondent has a poor history of compliance with orders and acknowledged that he had experienced great difficulty with following rules and having limits placed upon him throughout his life. The respondent openly stated that he struggles to accept the length of the Supervision Order and the number of conditions associated with it. The respondent repeatedly spoke about the Supervision Order in negative terms and seems to view the order with a sense of hopelessness. In Ms Morrison's view this may impact on the respondent's ability to remain within the limits of the Supervision Order as he lives in the community in the future. In Ms Morrison's view the Supervision Order seems so overwhelming to the respondent that at times he tends to give up and maintain that he would prefer to stay in prison. Nonetheless, there are times when the respondent has demonstrated motivation and enthusiasm about living in the community, particularly in relation to work and in connecting with his family.

219 In Ms Morrison's view creating changes in the respondent's attitude, beliefs and behaviour where he can engage in more pro-social activities and increasingly make more appropriate decisions to reduce his risk of reoffending will be a gradual process. This will require the respondent to engage authentically in treatment and to increase his capacity to follow guidance as he manages the conditions of the Supervision Order. This will remain a focus of intervention and will require much attention in coming sessions.

220 The respondent will continue to be seen on a fortnightly basis while in prison. If the respondent is released on the Supervision Order his contact will be increased to weekly to assist him to readjust to the community, to work towards his previously established goals and to focus on managing his risk of reoffending particularly in relation to his substance use relapse prevention and the development of positive coping.

221 In Ms Morrison's view the respondent will require ongoing intervention to assist him as he establishes new relationships and reconnects with his existing friends and family members. The respondent will be supported to build on his skills to establish boundaries and relationships, communicate assertively and make prosocial decisions as he interacts with others.

222 Future intervention will continue to include the monitoring of the respondent's sexual behaviour and to identify appropriate sexual outlets and expressions. In Ms Morrison's view ongoing guidance and psychoeducation as to problematic sexual fantasy and behaviour will be important in assisting the respondent to reduce his risk of sexually reoffending.

Ms Ballantyne's evidence Treatment Progress Report

224 Ms Ballantyne prepared her report for the specific purpose of providing an overview of the respondent's participation, and relevant progress in, psychological intervention during the period since his release on the Supervision Order.

225 Ms Ballantyne interviewed the respondent on 21 October 2021. The respondent engaged readily throughout the interview.

226 The respondent's description of the content and process of his counselling with his treating psychologist Ms Morrison was limited in that he described the counselling as having been focussed on his offences and more recently his 'feelings and family'.

227 The respondent provided a very simplistic account of patterns and risk factors relevant in his offence cycle. He stated that his offences occurred in the context of him being 'pissed off and drinking and getting more pissed off'.

228 When Ms Ballantyne asked the respondent what he had found helpful in therapy, the respondent was ambivalent in his response and referred to his continuing reluctance to engage honestly with Ms Morrison which he attributed to his lack of trust for 'the government' and its representatives. The respondent was unwilling or unable to identify particular insights, understanding or skills development that he had gained through psychological therapy. While acknowledging that Ms Morrison and his CCO were trying to help him, the respondent stated his perception that confidentiality is not assured in his contact with Ms Morrison because 'whatever I say to her goes straight to [the CCO]' and 'I don't fully open up to her because it goes straight to [the CCO]'.

229 The respondent identified his Plan and Grow Support workers to have been the most important individuals in his adjustment to the community. He described the nature of his attachment to staff from Plan and Grow as 'becoming like a second family, like brothers'. He credited the length of time that he was able to remain in the community to the support that Plan and Grow provided to him. He stated that 'without them I would have gone back to drinking, drugs...would have hurt someone'. He attributed Plan and Grow's full time support of him as being instrumental in keeping him safe because when he is by himself he 'start[s] thinking, getting into crime, getting into trouble'.

230 With respect to future service provision if he is released into the community, the respondent expressed the understanding that after 6 months his level of support would drop from 24 hours a day to 16 hours a day. The respondent indicated some anxiety in relation to having a level of independence.

231 The respondent expressed to Ms Ballantyne ambivalence about leaving prison and returning to the community. He demonstrated that he was aware that the fact that he was not looking forward to being released from prison was 'worrying people'. The respondent acknowledged some motivation to return to the community primarily related to the influence of his sister with whom he has established contact, and also because he is aware being in prison will hurt his family. The respondent clarified this later comment by stating that he was referring to his younger siblings, nieces and nephews. The respondent emphasised that the conditions of the Supervision Order prohibiting him having direct contact with family members under the age of 18 years without permission was one of the constraints he found problematic and confusing given that none of the victims of his adult sexual offending were children.

232 According to Ms Ballantyne, the respondent's primary concern for his future return to the community relates to the likelihood of him being able to comply with the Supervision Order for the 10-year period. The respondent provided a global and simplistic assurance that if he is released into the community he will 'just go back to doing what I was doing, reporting and stuff'.

233 Ms Ballantyne has consulted with Dr Wojnarowska, Ms Morrison and Mr Carmichael. They all share the following concerns about the respondent's capacity to comply with the conditions of the Supervision Order:

1. The respondent's youth both from a chronological and maturity perspective;

2. Significant adjustment concerns in the context of limited stable prosocial life experiences in a community setting;

3. Vacillating motivation and susceptibility to stress (catastrophising) in the face of relatively minor setbacks;

4. Impulsivity and risk of harm to self or others in the absence of structure and support (necessitating intervention by others); and

5. Responsivity concerns with respect to language, memory and literacy deficits.

234 In Ms Ballantyne's opinion the intervention targets identified and described by Ms Morrison have been structured to include not only the respondent's dynamic risk relevant criminogenic treatment needs, but also more general psychological support and skills building to aid in his adjustment and reintegration into a community setting.

235 In Ms Ballantyne's opinion the respondent's mistrust and resistance to fully disclosing on a range of topics to representatives of 'the government' continues to present a significant and enduring barrier to his engagement with both psychological support and supervision by his CCO. Ms Ballantyne acknowledges the possibility that this stance may serve to justify some of the respondent's potentially resistant or deceptive behaviours with respect to disclosures required by the conditions of supervision. However, Ms Ballantyne also makes the point that the long standing nature of the respondent's anti-authoritarian views derived from his developmental experiences and the ongoing involvement of a range of family, welfare and justice authorities (that is, 'the government') in his life means that his mistrust is likely to remain a constant and consistent target for intervention.

236 In Ms Ballantyne's view the opportunity to work consistently towards a psychological treatment plan addressing risk relevant targets for criminogenic intervention has been hampered by not only the respondent's distrust and resistance to full disclosure with his psychologist, but also the respondent's more acute presenting problems such as stressors relating to consequences of non-compliance, his mental health and his potential risk to self or others. The respondent's capacity to build on increasingly complex and more specific (offence related) targets for intervention will be contingent upon a longer period of consistent stable adjustment to living in the community. With increased stability and time it is likely that the respondent will have a greater opportunity to learn from repetition and practice, and to build upon his familiarity with, and capacity for, managing the various stressors involved with living in the community.

237 In Ms Ballantyne's opinion the respondent's description of his relationship with, and reliance on, Plan and Grow staff suggests confusion in relation to the perimeters and boundaries of such support.

238 In Ms Ballantyne's opinion the prospects of the respondent's successful reintegration into the community will be optimised by collaboration between agencies and transparent and clear communication with the respondent regarding their respective roles and his corresponding management.

239 In her evidence‑in‑chief Ms Ballantyne gave the following supplementary evidence.[43]

240 It is very important for a person who is engaged in psychological counselling to make full disclosures and to be open and honest with their counsellor. The psychologist can only work with what they are given. It is difficult to assist a person if they are struggling but will not disclose what they are struggling with.

241 It is fairly obvious and understandable why the respondent is reluctant to disclose fully to Ms Morrison. This is a problem that everyone involved in the respondent's supervision and treatment is aware of. Everyone has tried to work with the respondent to modify his attitude in this regard. Efforts will continue to be made to build the respondent's trust so that he can disclose 'more authentically' things that are bothering him. The process may involve providing the respondent with experiential learning. Equally, the respondent needs to 'step up' and be prepared to engage.

242 The respondent needs a lot of support and motivation from a range of services, not just his CCO and psychologist. He requires a collaborative multi-agency approach.

243 In cross-examination Ms Ballantyne stated that if the Supervision Order is rescinded Ms Morrison will need to reassess with the respondent the extent of the counselling to be undertaken with him, but that if the respondent remains in Hakea prison fortnightly sessions would be achievable.[44]

245 The respondent has struggled with conflicting notions that he wants to be released from prison and that he finds the Supervision Order too onerous and difficult and would rather be in prison. According to Mr Carmichael the respondent's belief that he does not want to be released waxes and wanes but appears to have intensified since he had been returned to prison.

246 On 14 October 2021 the respondent made several statements to Mr Carmichael confirming his lack of desire to return to the community under the conditions of the Supervision Order or under a supervision order with additional conditions. The respondent stated that his only motivation to return to the community arises from the fact that he would be able to have contact with his sister and brother. He stated that he felt that it was inevitable that he would intentionally reoffend by offending violently or by using illicit substances so as to breach the Supervision Order. He stated that he felt that the Supervision Order may be more viable if the conditions that prevented him from associating with people under 18, that prevented him from entering residences where females are present or living, that enabled the COMU to review his mobile phone, that prohibited him from deleting content from his mobile phone and which precluded him from entering certain zones were removed. Mr Carmichael notes that all these conditions relate directly to the respondent's risk of reoffending and the monitoring of the risk.

247 On 14 October 2021 the respondent further reported to Mr Carmichael that he felt as though if he was released on the Supervision Order his mental health would immediately return to the same low point that it had been prior to his return to prison. He reported that he felt as though he was not able to ensure his own safety and that he would likely 'take it further' and 'go deeper', these statements being references to his earlier conduct in cutting his arms.

248 In Mr Carmichael's view the respondent presents with a consistent pattern when he is challenged on his attitude towards being released on the Supervision Order. The respondent appears to be able to reflect and be redirected. He appears to be able to consider varying viewpoints in relation to being released. While he often conveys highly rigid thinking in the first instance, he has demonstrated the ability to reflect and alter his point of view given time and space. However, the complicating factor, in Mr Carmichael's view, is that prosocial supports, peers and family members are not readily available to provide the respondent with intensive 24-hour/seven days a week support and often the respondent's intrinsic motivation is quickly dampened before he reverts to his negative attitude towards his future and remaining in the community.

249 In preparing the respondent's proposed community supervision plan Mr Carmichael has consulted with Dr Wojnarowska, Ms Morrison and Ms Ballantyne. The respondent's proposed community supervision plan remains largely unchanged from the time of his release on the Supervision Order.

250 If the respondent is released on the Supervision Order Mr Carmichael recommends that some relatively minor amendments be made to the order to incorporate recommendations of Dr Wojnarowska. Mr Carmichael recommends the imposition of the conditions set out in Annexure 1 to these reasons.

251 If the respondent is released on the Supervision Order he will continue to reside at the address that he was residing at before being returned to prison. The respondent's accommodation is provided under his NDIS funding plan and is managed by his disability support providers. The accommodation proved to be a suitable residence for the respondent while he was in the community subject to the Supervision Order.

252 The respondent's NDIS funding plan has been reviewed. On 24 June 2021 an updated 12‑month plan was put in place (updated NDIS plan). The updated NDIS plan incorporates a marked reduction in the respondent's support funding. Under the updated NDIS plan there is a reduction in overall funding of approximately 35% and a reduction of approximately 68% in funding for core supports. The reduction in funding under the updated NDIS plan means that the respondent will not, if he is released on the Supervision Order, be able to be provided with wrap around 24‑hour/seven days a week support.

253 The updated NDIS plan includes funding to assist the respondent to explore and participate in community‑based activities of interest, develop skills within the community and develop, build and maintain friendships. The updated NDIS plan includes funding for transport to assist in the delivery of direct support. The updated NDIS plan includes funding for therapy services and/or training with the goal of improving the respondent's functional capacity to adjust to living in the community. The updated NDIS plan also includes funding for improved relationship support by way of specialist behavioural intervention.

254 The updated NDIS plan proposes a step‑down model for the extent of the respondent's support. However, because the respondent has been in custody since June 2021 there are surplus funds that will be available for use if the respondent is again released on the Supervision Order.

255 On 26 October 2021 Plan and Grow advised that by making use of the surplus funds the support that will be able to be provided to the respondent if he is released on the Supervision Order is as follows:

1. Stage 1: 24‑hour/seven days a week support on weekdays for approximately 5 - 6 weeks (designed to cover the Christmas and New Year period) and 12‑hour support on Saturdays and Sundays;

2. Stage 2: 10 hours support per day for approximately 12 weeks; and

3. Stage 3: 6 hours support per day for approximately 12 weeks.

256 Plan and Grow have advised that all of the day shifts will be conducted between the hours of 7.00 am and 8.00 pm to allow their staff to assist the respondent to attend all appointments and to return to his address prior to curfew.

257 Uniting WA will re‑engage with the respondent. The COMU will oversee the integration of Uniting WA's re-engagement with the NDIS funded support to ensure the level of support is maximised.

258 As part of engaging in Uniting WA's Specialist Re‑entry Program, the respondent will be allocated to a Senior Case Worker and receive assistance with re‑integration into the community. This will include, but will not be limited to, public transport assistance, employment assistance and community engagement assistance.

259 The respondent has limited prosocial peers and supports in the community. It is therefore, in Mr Carmichael's view, likely that the respondent will revert to engaging and interacting with people he knows from time spent in custody which is what occurred when he was previously released.

260 In Mr Carmichael's view the likely result of the significant reduction in the hours for which support workers will be able to be present with the respondent is that the respondent will spend more time with negative peers without the protective presence of his support workers, which in turn may result in the respondent being more tempted to engage in high‑risk behaviours such as consuming substances, freely engaging with females without reporting and engaging with underage people. Mr Carmichael notes that several of the respondent's breaches of the Supervision Order came about due to information provided by his support team. Mr Carmichael holds concerns that without adequate support the respondent's decision‑making may suffer and he may engage in under reporting of his interactions.

261 The respondent has not proposed any employment. In Mr Carmichael's view employment may be considered a long‑term goal for the respondent. However, he does not consider employment to be a likely viable option for the respondent in the near term.

262 In Mr Carmichael's view, although the conditions of the respondent's Supervision Order are arduous there are a few changes that can reasonably be made to the order. In Mr Carmichael's view, the conditions of the Supervision Order, particularly those which the respondent has expressed a desire to have removed, are all relevant to the respondent's risk of reoffending and the monitoring of high‑risk situations.

263 Mr Carmichael has, after consulting with Dr Wojnarowska, included in the proposed amended Supervision Order conditions which have been drafted in such a way as to permit the simultaneous management of the respondent's appropriate use of pornography and the associated risk of him accessing such material (Annexure 1, conditions 43 and 44). According to Mr Carmichael, the proposed condition preventing the respondent from accessing internet pornography without prior approval of a CCO (Annexure 1, condition 43) will 'in theory' stop the respondent, while using the internet to access appropriate pornography, progressing to view increasingly risk‑relevant material including material with deviant content. Further, and again according to Mr Carmichael, the proposed condition preventing the respondent from possessing hard‑copy or electronic pornography unless approved in advance by his CCO (Annexure 1, condition 44) will allow the COMU to give permission to the respondent to purchase pornography magazines or Digital Versatile Disks (DVDs). The COMU will have oversight over the content of these materials before they are purchased to ensure they are appropriate. Additionally, if the respondent's pornography use becomes problematic, the proposed condition will enable the COMU to withdraw permission for the respondent to possess pornography.

264 The inclusion of the above proposed conditions is supported by Dr Wojnarowska.

265 If released on the Supervision Order the COMU will continue to have oversight of the respondent's phone and internet use. A collaborative approach will be adopted to provide the respondent with guidance and learning about safe and protective use of his phone and the internet. This will be undertaken by the COMU in conjunction with the respondent's treating psychologist and his NDIS funded support.

266 In Mr Carmichael's view it is evident that there is some need for the respondent to have access to underage people in his family for the purpose of achieving connection with his family. Mr Carmichael considers that while this is important, it is also the case that the respondent is likely to struggle to self‑manage his engagement with underage people. He therefore considers that the COMU should have oversight over the respondent's interactions with underage family members so as to assist him to develop appropriate plans and to ensure that disclosure to parents or caregivers occurs where appropriate. While conditions previously existed to facilitate contact under these conditions Mr Carmichael, in light of Dr Wojnarowska's support of a condition which makes it clear to the respondent that he is not precluded from engaging with anyone under the age of 18 but rather that he needs to do so with the assistance of the COMU, proposes a condition to take account of the respondent's concrete thinking style and deficits (Annexure 1, condition 47(a)). The condition is designed to allow the COMU oversight as to the persons the respondent engages with and the manner in which he does so (for example, initially during hours that he is in the company of support workers).

267 If the respondent is again released on the Supervision Order he will be subject to close monitoring and supervision by members of the Risk Management Team, including police officers from the SOMS, CCOs, management staff from the Department, FPS psychologists and SFPS psychologists. The risk management of the respondent will include regular and unscheduled home visits, liaison with community agencies and other stakeholders, and regular reviews of risk factors at risk management meetings.

268 Further, consistent interagency collaboration will be undertaken between the respondent's risk management team, his Public Guardian and his disability support providers, including his support and accommodation provider, his Positive Behaviour Practitioner and the NDIS Support Coordinator.

269 In his evidence‑in‑chief Mr Carmichael gave the following supplementary evidence.[45]

270 The respondent's NDIS funding plan was reviewed in about May 2021.

271 The updated NDIS plan will, if the respondent is released, take the respondent through to June 2022. The updated NDIS plan will be reviewed shortly before it is due to expire. What will occur at that point in time is completely unknown to him. However, the contents of the Occupational Therapy Report indicate that 'all things going well' the NDIS funding support will be reduced further at the expiration of the updated NDIS plan.

272 In cross-examination Mr Carmichael gave the following supplementary evidence.[46]

273 If the Supervision Order is rescinded and a continuing detention order is made in relation to the respondent, the updated NDIS plan will still be reviewed prior to June 2022 and the NDIS funding will be significantly reduced. The vast majority of the supports under the updated NDIS plan will be withdrawn given that the NDIS is not responsible for caring for people in custody. Core supports will be taken away if the respondent is in custody at the time of the review.

274 He has been working with the respondent in relation to the respondent's motivation to comply with the Supervision Order. He commenced doing so in the very early stages of the Supervision Order and has continued to do so since the respondent has been returned to prison. A lot of his discussions with the respondent have centred around trying to develop the respondent's 'intrinsic motivation outside of residing in custody and remaining there'. A lot of his conversations with the respondent have been supportive and directed at trying to identify and strengthen for the respondent the reasons why he should want to remain out of prison.

275 While the respondent was in the community the COMU was supportive of him having contact with his family including younger members of his family. However, the COMU was required by the conditions of the Supervision Order to put in place certain procedural arrangements with another agency to enable the contact to occur. The respondent was aware that the COMU was supportive of him having contact with his family and was putting in place arrangements to enable this to occur.

276 The Occupational Therapy Report was prepared by Mr Divita as part of the review of the respondent's NDIS plan that ultimately resulted in the updated NDIS plan.

277 In the Occupational Therapy Report, which is obviously prepared on the assumption that the respondent will be living in the community, Mr Divita 'anticipates' that following a 12 month period of 'capacity building' the respondent will be able to maintain his functioning and meet his goals with assistance being provided for four days a week, six hours per day.

Analysis and decision Am I satisfied that the respondent has contravened a condition of the Supervision Order?

278 The respondent has been convicted of the contravention offences, specifically contraventions 1 - 9. Further, he accepts that he committed the uncharged contraventions, specifically contraventions 10 - 13. I am therefore, for the purposes of s 55(1) of the Act, satisfied on the balance of probabilities that the respondent has contravened conditions of the Supervision Order, specifically conditions 37, 43, 44, 46, 55, 58 and 59.

Will the respondent substantially comply with the standard conditions of the Supervision Order?

279 Given that I have found that the respondent has contravened conditions of the Supervision Order, the question that remains for my determination is whether the Supervision Order should be rescinded and a continuing detention order made in relation to the respondent, or whether the respondent should be permitted to remain on the Supervision Order either in its current form, or in an amended and/or extended form. As I have already pointed out, in deciding this question the paramount consideration is the need to ensure the adequate protection of the community.[47] Moreover, and as I have also already pointed out, I can only make an order permitting the respondent to remain on the Supervision Order in its current form or in an amended and/or extended form if the respondent satisfies me on the balance of probabilities that he will substantially comply with the standard conditions of the order.[48]

280 The applicant does not submit that the respondent has failed to prove on the balance of probabilities that he will substantially comply with the standard conditions specified in s 30(2)(a) - s 30(2)(c) and s 30(2)(e). The applicant does, however, submit that the respondent has failed to prove on the balance of probabilities that he will substantially comply with the standard conditions specified in s 30(2)(d), s 30(2)(f) and s 30(2)(g).

281 The respondent does not formally concede that he has failed to discharge his onus of proving on the balance of probabilities that he will substantially comply with all the standard conditions. However, and without intending to sound in any way critical of his counsel it is, I think, fair to say that it was not argued strenuously on the respondent's behalf that he has discharged his onus at least in relation to s 30(2)(d) and s 30(2)(f) (or, for that matter, that releasing him on the Supervision Order, or an amended and/or extended version thereof, will ensure adequate protection of the community).

Standard conditions specified in s 30(2)(a) - s 30(2)(c) and s 30(2)(e)

282 While in the community the respondent reported to his CCO as directed and received visits from his CCO as directed. He did not attempt to change his name or place of residence or place of employment. He did not attempt to leave the State. Further, if he is released on the Supervision Order, or an amended and/or extended version thereof, he will be dependent on support agencies for accommodation and is unlikely to gain employment in the foreseeable future. In these circumstances I am satisfied on the balance of probabilities that if the respondent is released into the community on the Supervision Order, or an amended and/or extended version thereof, he will substantially comply with the standard conditions specified in s 30(2)(a) - 30(2)(c) and s 30(2)(e) of the Act.

Standard conditions specified in s 30(2)(d) and s 30(2)(f)

283 There are some matters that arguably point in favour of the conclusion that the respondent will, if he is released on the Supervision Order in the proposed amended form, comply with the standard conditions specified in s 30(2)(d) and s 30(2)(f). The most material of these matters, in my opinion, are that the respondent did not commit a serious offence while in the community subject to the Supervision Order and that he has a basic understanding of his risk factors (specifically boredom, excessive viewing of pornography, associating with anti-social peers and illicit substance use). Notwithstanding these matters, however, there are a number of other matters which, taken in combination with each other, cause me to fail to be satisfied on the balance of probabilities that if the respondent is released on the Supervision Order, even in the proposed amended form, he will substantially comply with the standard conditions specified in s 30(2)(d) and s 30(2)(f); that is, will comply with these standard conditions in a manner and to an extent that is consistent with, and will enable, the attainment of the general object of the Supervision Order and the Act. The matters are as follows.

284 First, during a period of a little under six months the respondent contravened the Supervision Order on numerous occasions and in various ways, a number of the contraventions being in breach of Written Lawful Instructions (directions) issued to him by Mr Carmichael on the day of his release pursuant to conditions of the Supervision Order.[49]

285 Second, the respondent's contraventions of the Supervision Order included conduct which involved him accessing, for sexual gratification, material depicting adult females that was of a sexual nature (multiple images of a female associate of the respondent; images of two young women dressed in bikini swimwear; videos including a video suggestive of a sexual attack on a female; images of naked females). This conduct reveals the level of the respondent's preoccupation with matters of a sexual nature while in the community.

286 Third, the respondent's contraventions of the Supervision Order included conduct which involved him accessing, for sexual gratification, material that was focussed on children (the television program 'Dance Moms'; videos of teenagers engaging in sexual acts; YouTube videos of female children, including prepubescent children, completing gymnastic and dance related stretches). This conduct reveals the level of the respondent's preoccupation with matters of a deviant sexual nature while in the community.

287 Fourth, the respondent's contraventions of the Supervision Order included conduct which involved him actively attempting to conceal from those responsible for his management his contraventions (including by deleting from his phone material of a sexual nature, by deleting from his phone images of children who were family members and by failing to record matters in his diary).

288 Fifth, the respondent contravened the Supervision Order despite having 24‑hour/seven days a week support from his Plan and Grow support workers. If the respondent is released on the Supervision Order he will not from the time of his release have 24-hour/seven days a week support and the level of support that will be provided to him on release will further reduce on a step down basis over time such that after approximately 18 weeks the respondent will only be provided with six hours support per day for a further 12 weeks. Further, it is not entirely clear what, if any, support will be able to be provided to the respondent by support workers at the end of the 12 weeks/six hours per day period. At best the support that will be able to be provided at the end of this period will be further reduced.

289 Sixth, the respondent while in the community subject to the Supervision Order admitted to being sexually attracted to teenage girls.

290 Seventh, the respondent while in the community subject to the Supervision Order demonstrated, in general terms, an attitude of ambivalence to the importance of complying with his obligations and repeatedly expressed frustration with the restrictions placed on him by the order.

291 Eighth, the respondent while in the community subject to the Supervision Order demonstrated a lack of interest in engaging in pro-social activities and hence occupying his time in a useful pro-social way. The respondent's lack of interest in occupying his time in pro-social ways increases the risk that he will resort to behaviours such as associating with antisocial peers, obsessively viewing pornography and using illicit substances which in turn increases the risk of him committing serious sexual offences.

292 Ninth, since being returned to prison in June 2021 the respondent has, on his own admission, returned to using illicit substances, specifically methylamphetamine, cannabis and suboxone. The accused's relapse into illicit substance use in prison suggests that there is a material risk of him using illicit substances if he is released into the community. This is of concern given that illicit substance use is a risk factor for the respondent.

293 Tenth, the respondent has recently and on more than one occasion confirmed that he does not want to return to the community under the conditions of the Supervision Order and has threatened to reoffend in a violent manner (which could involve the commission of a serious offence within the meaning of the Act) if he is released.

294 Eleventh, the respondent has expressed doubts and hopelessness about being able to comply with the requirements of the Supervision Order. He lacks motivation to do well in the community while subject to the Supervision Order. His feelings of hopelessness and lack of motivation to do well in the community potentially increase his risk of committing further serious sexual offences.

295 Twelfth, Dr Wojnarowska's opinion overall is that the respondent presents as having future problems with supervision.

296 Thirteenth, the respondent has at all material times remained guarded in his interactions with his treating psychologist Ms Morrison and has refused to be entirely open about his views and experiences because he does not trust 'government workers'. The respondent has overall maintained this stance despite being told about the benefits of open and genuine interactions with his psychologist. In Ms Ballantyne's opinion the respondent's mistrust and resistance to fully disclosing to his psychologist continues to present a significant and enduring barrier to his engagement with both psychological support and supervision with his CCO.

297 Fourteenth, in Ms Morrison's opinion the respondent has experienced ongoing difficulties both in the community and more recently while in prison with managing emotions and maintaining positive coping strategies that he has developed through previous treatments.

298 Fifteenth, the respondent remains susceptible to a significant and rapid decline in his mental health if faced with stressors, even stressors that may be seen as relatively minor setbacks. A decline in his mental health will increase the prospects of him disengaging from the conditions of the Supervision Order.

299 Sixteenth, the respondent, if he is released on the Supervision Order, will have very limited pro-social support apart from that which will be provided to him on a professional basis.

300 Seventeenth, the respondent's ability to have an intimate relationship or to engage in casual sex with consenting females as a means of managing his sexual needs is limited by his reluctance (due to feelings of shame) to disclose to any possible partner his offending history. While the respondent's reluctance in this regard is understandable, until he is able to bring himself to disclose his offending history to a possible sexual partner his ability to satisfy his sexual needs in an appropriate way with age appropriate females will be restricted. If he is not able to satisfy his sexual needs in an appropriate way with age appropriate females there is an increased risk of him becoming sexually frustrated and any such sexual frustration is likely, in combination with other factors, to increase his risk of committing further sexual offences.

301 As to the ninth of the above matters, I am conscious of the negative results from the urinalysis tests conducted on 13 September 2021 and 14 October 2021. However, these results are not in themselves capable of establishing that the respondent's statements to Mr Carmichael to the effect that he has used illicit substances since being returned to prison are untruthful. Moreover, the respondent did not seek to challenge the truthfulness of his statements by way of evidence or submission. In these circumstances and bearing in mind the respondent's history of illicit substance use, I see no reason for not accepting the respondent's statements as being a truthful, albeit perhaps somewhat exaggerated, reflection of his conduct while in prison.

302 When I take all of the above matters into account in combination with each other I am simply unable to satisfy myself on the balance of probabilities that if the respondent is released on the Supervision Order, even in its proposed amended form, he will substantially comply with the standard conditions specified in s 30(2)(d) and s 30(2)(f).

303 The argument advanced by the applicant in support of its contention that the respondent has failed to prove that he would, if released on the Supervision Order in the proposed amended form, substantially comply with the standard condition specified in s 30(2)(g) is, in essence, that there is a likelihood that the respondent, in order to facilitate any contravention of the standard conditions specified in s 30(2)(d) and s 30(2)(f), will interfere with his electronic monitoring equipment.

304 The respondent, while in the community subject to the Supervision Order, did not tamper with his electronic monitoring equipment or indicate an intention to tamper with his electronic monitoring equipment or raise any objection to being subject to electronic monitoring. In addition, when the respondent was interviewed by Dr Wojnarowska he told her that he had no objection to GPS monitoring. However, the respondent has more recently complained to Mr Carmichael about being prevented from entering certain zones. Moreover, there is, I think, merit in the argument that if the respondent decides to contravene the standard conditions specified in s 30(2)(d) and/or s 30(2)(f) there is a likelihood (distinct possibility) that he will, in order to facilitate doing so, interfere with his monitoring equipment. Accordingly, given that I am not satisfied that the applicant will, if he is released on the Supervision Order, even in the proposed amended form, substantially comply with the standard conditions specified in s 30(2)(d) and s 30(2)(f), I am also not satisfied that he will substantially comply with the standard condition specified in s 30(2)(g).

Would an order amending, extending or confirming the Supervision Order ensure adequate protection of the community?

305 Given that I have found that the respondent has failed to prove that he will, if released on the Supervision Order in the proposed amended form, substantially comply with the standard conditions specified in s 30(2)(d), s 30(2)(f) and s 30(2)(g) it is not necessary for me to determine whether releasing the respondent on the Supervision Order, or an amended and/or an extended version thereof, will ensure adequate protection of the community. Nonetheless, for the purposes of certainty and completeness I state that even if the issue of the need for the respondent to establish that he will substantially comply with the standard conditions of the Supervision Order is put to one side, I am not, in light of the 17 matters that I have identified, satisfied that releasing the respondent on the Supervision Order, or an amended or extended version thereof, will ensure adequate protection of the community.

306 In arriving at my above expressed conclusions I have not overlooked Dr Wojnarowska's evidence that in her opinion the respondent can be managed in the community provided that he is motivated to comply with the conditions of the Supervision Order. However, in light of the matters to which I have referred, I am simply not satisfied that the respondent is currently motivated to comply with the conditions of the Supervision Order.

307 In arriving at my above expressed conclusions I have also not overlooked Dr Wojnaroska's evidence that in her opinion the longer the respondent spends in custody (and progresses towards institutionalisation) the greater the risk he will commit a serious offence under the Act upon his release. The respondent is a high risk serious offender and the adequate protection of the community from the risk he poses is of paramount importance. Nonetheless, and bearing in mind that the respondent is still a relatively young man with a cognitive disability who has already spent a good proportion of his life in custody, I am, needless to say, concerned about the possibility that further detention of him under the Act will increase the already high risk of him committing further sexual offences and consequently further reduce the prospects of him being able to be safely released on a Supervision Order in the relatively near future. However, the questions that the provisions of the Act to which I have referred require me to address in determining the application do not include the question whether keeping the respondent in custody will potentially increase his already high risk of reoffending in the longer term. Rather, the questions that the provisions of the Act require me to address in determining the application are whether the respondent has proved on the balance of probabilities that he will at the present point in time substantially comply with the standard conditions of the Supervision Order if he is released on the order and whether releasing the respondent on the Supervision Order at the present point in time will ensure adequate protection of the community. Having said this, the existence of the possibility that further detention of the respondent pursuant to a continuing detention order under the Act will increase his already high risk of reoffending serves to emphasise the importance of ensuring that while he is detained all reasonable efforts are made to give effect to all of the objects of the Act which include providing for his continuing 'care or treatment'.[50]

308 The respondent has failed to satisfy me on the balance of probabilities that he will substantially comply with the standard conditions specified in s 30(2)(d), s 30(2)(f) and s 30(2)(g) of the Act. I therefore, pursuant to s 55(1)(a) of the Act, rescind the Supervision Order and make a continuing detention order in relation to the respondent.

309 In order to give himself the best possible chance of being released on a supervision order following the first review of the continuing detention order the respondent, it seems to me, needs to do at least three things.

310 First, the respondent must, despite his misgivings, do his best to set aside his mistrust of his treating psychologist Ms Morrison and engage fully and openly with her. If the respondent does this he will be better equipped to deal with the stressors that he will inevitably face upon being released on a supervision order and hence also be better placed to comply with the conditions of the order.

311 Second, the respondent needs to address and deal with his apparent problematic sexual interest in underage females. The respondent needs to do this through his counselling with his psychologist and through any other appropriate treatment programs that are made available to him.

312 Third, the respondent needs to come to the realisation (and hopefully this realisation will, despite his cognitive difficulties, come with time and increased maturity) that although he will be subject to significant restrictions while living in the community subject to a supervision order he should, if he is open with those responsible for his supervision and if he seeks and relies upon the support that they are able to give him, be able to live a relatively stable and contented life while subject to the order; a life which does not involve the commission of sexual offences but which does involve experiences such as having ongoing contact with his family members, engaging in prosocial activities and engaging in consensual age appropriate intimate relationships. Once the respondent comes to this realisation it is likely that he will not feel so daunted about the prospect of complying in the longer term with the conditions of a supervision order and consequently will be more motivated to live in the community in accordance with the conditions of such an order.

313 I agree with the recommendation of Dr Wojnarowska that the respondent should continue to receive psychological counselling and offence specific treatment to address his criminogenic needs and that the counselling should occur as regularly as possible.

314 I agree with the recommendation of Dr Wojnarowka that the respondent should continue with his antidepressant medication at an increased dosage with a view to reducing his sexual drive, and that if the desired result in this respect cannot be achieved through the antidepressant medication consideration should be given to placing the respondent on antilibidinal medication.

315 I agree with the recommendation made by Dr Wojnarowska that efforts should be made to identify a suitable Indigenous mentor for the respondent.

316 Clearly the respondent is going to require very significant support if he is to be released by the time of the first review of the continuing detention order. To this end attempts should be made, prior to the first review, to put in place a proposed community supervision plan that is substantially similar to the plan that was in place at the time that he was released on the Supervision Order but which also includes the provision of an Indigenous mentor.

ANNEXURE 1 PROPOSED SUPERVISION ORDER CONDITIONS STANDARD CONDITIONS REQUIRED BY THE ACT

1. Report to a Community Corrections Officer at the East Perth Adult Community Corrections Centre, 30 Moore Street East Perth WA, within 48 hours of release to the order and advise the officer of the person's 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 the person's name, place of residence, or place of employment at least 2 days before the change happens;

4. Be under the supervision of a Community Corrections Officer, which includes, comply 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.

8. Take up residence at [specified address] 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;

9. Report to a CCO at your approved release address on the day of release from custody within normal business hours under this Order;

10. Be under the supervision of a CCO and comply with the lawful orders and directions of a CCO;

11. 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;

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

13. 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;

14. 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;

15. Undertake any medication regime, including medication for the purposes of anti­libidinal 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;

16. 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;

17. 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;

18. 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 locations as directed by the Officer-in-Charge of SOMS or his/her delegate;

19. Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004;

20. If requested, permit Police Officers to enter and search your 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 Officer believes to contravene the conditions of the Order;

21. Remain at your premises and/or vehicle when Police Officers conduct a search under the High Risk Serious Offenders Act 2020;

22. 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;

23. Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this Order, including confidential information;

24. 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;

25. 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;

26. 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 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 victim at all times;

27. 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;

28. Not commit any other 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;

29. Not commit an offence under s 202, s 203, s 204, s 204A, s 204B, s 217, s 218, s 219, s 220 or s 557K Criminal Code 1913 (WA);

30 Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996;

31. 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

32. 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;

33. When subject to a curfew under this Order, present yourself for inspection at the front door or curtilage of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew;

34. When subject to a 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;

35. Not to possess, or purchase, or consume or use alcohol;

36. Not go or remain at any licensed premises unless permitted or required to do so for the following reasons

1. For the purpose of averting or minimizing a serious risk of death or injury to yourself or another person;
2. For a purpose, and for a duration, approved in advance by a CCO;
3. On the order of a CCO or Police Officer.

37. Maintain a daily diary of your movements, activities and associations if and as directed by the CCO and present this diary to the CCO and Police Officer upon request;

38. 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;

39. To provide a valid sample for the testing described in Condition 38;

40. 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 occupants 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;

41. 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;

42. Not enter the premises of, or access the services of, escort agencies or sex workers without the prior notification and approval of a CCO or WA Police;

43. Not to view, access or possess any internet based pornography unless approved by a CCO;

44. Not access or have in your possession in either electronic or permanent form any pornographic material unless approved in advance by a CCO;

45. Not enter any residential address in which a female is present, resides or is known to reside, unless authorised in advance by the CCO;

46. 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;

47. 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 person is an immediate family member and the contact is authorised in advance by a CCO and such contact is conducted in a manner as approved by a CCO

(b) 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;

(c) 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);

48. 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;

49. Provide details 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;

50. 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;

51. 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 or part time;

52. Not form any domestic relationship with a person who has children under the age of 18 years in their care either full-time or part-time, without prior approval of a CCO;

53. 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;

54. Have no contact with, membership of or affiliation with clubs, associations or groups where membership includes children; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer.

55. 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;

56. 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;

57. 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;

58. 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 advance from a CCO;

59. 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, 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;

60. Not conduct computer searches for, nor collect or 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 certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] The State of Western Australia v Warmdean [2019] WASC 6.

[2] Act, s 2(1)(a).

[3] The term 'commencement day' is defined for the purposes of the provisions contained in pt 10 of the Act (s 122 ‑ s 125) to mean 'the day on which this section comes into operation'. The 'day on which this section comes into operation' is, by virtue of proclamation, 26 August 2020: Act, s 2(1)(c).

[5] The State of Western Australia v Warmdean [No 2] [2020] WASCA 454.

[6] The State of Western Australia v ZSJ [2020] WASC 330 [30] ‑ [31].

[7] The corresponding provisions in the DSO Act were s 22 and s 23 respectively.

[8] Act, s 3, par (b) of definition of 'offender' and definition of 'serious offender under restriction'.

[11] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52]; The State of Western Australia v Narrier [No 5] [2019] WASC 17 [113]; The State of Western Australia v West [No 6] [2019] WASC 427 [29]; The State of Western Australia v ZSJ [56] ‑ [58].

[12] The State of Western Australia v Yates [2020] WASC 149 [33].

[15] Dr Wojnarowska is a 'qualified experts' as defined in s 3 of the Act. Her report was prepared and obtained pursuant to s 67 of the Act and in accordance with s 74 of the Act.

[17] The State of Western Australia v Warmdean [88] - [104].

[18] As a result of his conduct the respondent was also convicted of the offence of being armed in a manner likely to cause fear.

[19] The State of Western Australia v Warmdean [113] - [114].

[20] The State of Western Australia v Warmdean [No 2] [30] - [49].

[21] The State of Western Australia v Warmdean [No 2] [51].

[22] The State of Western Australia v Warmdean [No 2] [52].

[23] The State of Western Australia v Warmdean [No 2] [51].

[24] The State of Western Australia v Warmdean [No 2] [55].

[25] The State of Western Australia v Warmdean [No 2] [55].

[26] The State of Western Australia v Warmdean [No 2] [74] - [77].

[27] The State of Western Australia v Warmdean [133] - [150]; The State of Western Australia v Warmdean [No 2] [11].

[28] Respondent's criminal record (Exhibit 1.1, pages 2 - 14).

[29] Particulars of Contravention Allegations (Exhibit 1.1, pages 393 - 399).

[30] Particulars of Contravention Allegations (Exhibit 1.1, pages 393 - 399).

[31] Performance Report, pages 7 - 8 and 9 (Exhibit 1.2, pages 478 - 479 and 480).

[32] Affidavit of Ms Serrano, par 10 (Exhibit 1.1, pages 175 - 181).

[33] Affidavit of Ms Serrano, par 11 (Exhibit 1.1, page 175 - 181).

[34] Performance Report, pages 10 - 11 (Exhibit 1.2, pages 481 - 482).

[35] Performance Report, page 14 (Exhibit 1.2, page 485).

[36] Performance Report, pages 9 - 10 (Exhibit 1.2, pages 480 - 481).

[37] Performance Report, pages 15 - 16 (Exhibit 1.2, pages 485 - 486).

[38] Treatment Progress Report, page 3 (Exhibit 1.2, page 447); Performance Report, page 15 (Exhibit 1.2, page 486 - 487).

[49] Exhibit 1.1, pages 256 - 257. One of the Written Lawful Instructions advised the respondent that as a result of condition 37 of the Supervision Order he was required to maintain a daily diary of his movements, activities and associations. The second Written Lawful Instructions advised the respondent that as a result of conditions 43 and 59 of the Supervision Order he was required to remove from his possession and residence (1) 'any pornographic material including images, sketches/drawings or written form of any person including, but not limited to, any image containing full or partial nudity of any person or depiction of a person (condition 43)' and (2) 'any image of a person or depiction including drawings or sketches of a child or children (condition 59)'.

[50] Act, s 8. See also the definition of 'continuing detention order': Act, s 3 and s 26(1).