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[2021] WASC 444
General information, not legal advice.
Supreme Court of WA
2021-12-10
Hall J
Original judgment source is linked above.
1 On 8 October 2020, the State of Western Australia applied for a restriction order pursuant to the High Risk Serious Offenders Act 2020 (the HRSO Act) in relation to the respondent. On 9 March 2021, Archer J made an interim detention order pending the determination of the application. The respondent was at that time serving a total effective sentence of 10 years' imprisonment imposed in the District Court. That sentence commenced on 14 July 2011. Accordingly, that sentence expired on 13 July 2021 and the respondent has since been held on the interim detention order.
2 At the restriction order hearing it was conceded on behalf of the respondent that he is a high‑risk offender. I have independently reached the same conclusion based on the evidence. The remaining issue was whether the respondent should be detained in custody or released on a supervision order.
3 The respondent is now aged 78 years old and the expert evidence supported a conclusion that the risk of reoffending could be appropriately managed on a supervision order. The State conceded that a supervision order was appropriate subject to the availability of suitable accommodation. For reasons that I will explain in more detail later, and despite concerted efforts, it has not proven possible to secure appropriate accommodation. On behalf of the respondent it was conceded that in the absence of appropriate accommodation a supervision order could not be made.
4 I have concluded that, in the circumstances of this case, the risk that the respondent may commit a serious offence of a sexual nature is not currently able to be managed within the community. The principal reason for reaching this conclusion is that release into the community on a supervision order is not a viable option in the absence of suitable accommodation. It is therefore necessary to impose a continuing detention order. The reasons for those conclusions follow.
5 The State may apply to the court for a restriction order in relation to a serious offender under a custodial sentence.[1] A serious offender under a custodial sentence is defined to include a person who is under a custodial sentence for a serious offence.[2] A serious offence is defined to include offences specified in schedule 1 division 1 of the HRSO Act.[3] Those offences include sexual offences against a child under 13, contrary to s 320 of the Criminal Code (WA). If the offender is in custody the application cannot be made unless there is a possibility that he might be released within one year after the date of the application.[4]
6 On 14 July 2011 the respondent was sentenced in the District Court to a total effective sentence of 4 years and 8 months' imprisonment for one offence of sexual penetration of a child under the age of 13, contrary to s 320(2) of the Criminal Code and one offence of indecent dealing with a child under 13, contrary to s 320(4) of the Criminal Code. On 6 December 2012 the respondent was sentenced in the District Court for further offences to a total effective sentence of 5 years and 4 months' imprisonment. That sentence was cumulative on the 4 years and 8 months already being served thus producing a total effective sentence of 10 years' imprisonment. The offences for which the respondent was sentenced on 6 December 2012 were two offences of sexual penetration of a child under the age of 13, contrary to s 320(2) of the Criminal Code and one offence of inciting a child under 13 to do an indecent act, contrary to s 320(5) of the Criminal Code.
7 The State applied for a restriction order in relation to the respondent on 8 October 2020. At that time he was still serving the total effective sentence of 10 years' imprisonment, having been refused release on parole. The respondent was due to complete the full sentence on 13 July 2021 and would be released the following day, subject to any other orders.
8 Accordingly, at the time the application was made the respondent was a serious offender under a custodial sentence and would be released from custody within the 12 months following the making of the application. The application, therefore, meets the requirements of the HRSO Act.
9 After a restriction order application is made the court must fix a day for the matter to come before the court for a preliminary hearing.[5] The main purpose of a preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might find that the offender is a high‑risk serious offender. If the court is so satisfied, orders will be made requiring the offender to undergo examination by a psychiatrist and a qualified psychologist for the purpose of preparing reports to be used on the hearing of the restriction order application. If the offender is in custody, and might otherwise be released before the restriction order application is finally decided, the court may also order at a preliminary hearing that the offender be detained in custody until the restriction order proceedings are determined.[6]
10 In this case, a preliminary hearing was held on 9 March 2021 and at that hearing Archer J was satisfied that there were reasonable grounds for believing that the court might find that the respondent is a high‑risk serious offender. Her Honour made orders for the obtaining of reports and also made an interim detention order having regard to the fact that the respondent would otherwise have been released from custody on 13 July 2021.
11 At the final hearing on 2 December 2021, counsel for the State advised that the length of time between the filing of the application and the final hearing was due to the parties agreeing that the hearing be delayed to allow for enquiries to be made regarding possible accommodation. Whilst this is understandable, it is generally undesirable for offenders to be held on interim detention orders for any longer than is absolutely necessary. If there is a justification for delaying a final hearing that is a matter that should be determined by the court and not by agreement of the parties.
12 The court must make a restriction order if it finds that the offender is a high‑risk offender. A restriction order is either a supervision order or a continuing detention order.[7]
13 An offender is a high‑risk offender if the court is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence. The State bears the onus of satisfying the court that it is necessary to make a restriction order.[8]
14 In considering whether it is satisfied that the offender is a high‑risk offender the court must have regard to each of the matters specified in s 7(3) of the HRSO Act. Those matters are:
15 The court must disregard the possibility that the offender may be temporarily prevented from committing a serious offence by imprisonment, or remand in custody, or the imposition of bail conditions.[9]
16 If the court decides that an offender is a high‑risk offender, it must then decide whether a supervision order or a detention order is the appropriate outcome. In deciding between these two options the paramount consideration is the need to ensure protection of the community.[10]
17 The court cannot make a supervision order, and therefore must make a detention order, unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of a supervision order. The onus is on the offender to prove that he will substantially comply with the standard conditions.[11] The standard conditions of a supervision order are those set out in s 30(2) of the HRSO Act. They include reporting, notification of changes of circumstances, supervision by a Community Corrections officer, not to leave the state without permission, not to commit a serious offence and to be subject to electronic monitoring.[12] A supervision order may also include such other conditions as the court considers appropriate to ensure adequate protection of the community, for rehabilitation, care or treatment of the offender and to ensure the adequate protection of victims.[13]
18 The words 'will substantially comply with' in s 29(2) are identical to those that appeared in provisions of the former Dangerous Sexual Offenders Act 2006 (WA) and bear the same meaning. In effect, that phrase means that the court must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with, and will enable the attainment of, the general objects of a supervision order and of the legislation.[14]
19 Even where the court is satisfied that the respondent will substantially comply with the standard conditions of a supervision order, the court must make a continuing detention order if it is not satisfied that conditional release under a supervision order will ensure adequate protection to the community.
20 Proceedings under the HRSO Act are taken to be criminal proceedings for all purposes. This does not require that anything be proved to a higher standard than is required by s 7(1) of the HRSO Act.[15]
21 In an application for a restriction order the court must hear admissible evidence called by the State and, if the offender elects to give or call evidence, that evidence. The rules of evidence apply but are modified to permit the court to receive in evidence;
22 The State filed two volumes of materials that it relied on for the purposes of the application. Those volumes were received in evidence without objection.
23 Volume 1 contained copies of the respondent's criminal record, a chronology prepared by the Office of the Director of Public Prosecutions, prison records, medical records, court records relating to the respondent's previous convictions (including convictions for other sexual offences that were dealt with in 1994 and 2004) and reports relating to programs undertaken in prison and reviews for the purposes of parole.[17]
24 Volume 2 contained reports prepared for the purposes of the restriction order hearing.[18] The reports in this category are as follows:
25 At the hearing an updated community supervision assessment report by Ms Hill was also tendered.[19] That report was dated 10 November 2021.
26 Dr Wynn Owen, Dr Yewers, Dr Galloghly and Ms Hill all gave oral evidence at the hearing. There was no dispute with the contents of their report or their oral evidence. There was no cross‑examination of the witnesses, though I asked a number of questions to clarify or obtain further details on the matters covered.
27 The respondent elected not to give or adduce any evidence.
28 The respondent's history of sexual offending involves a number of discrete incidents. His first sexual offences were committed in 1985 when he was aged 43 years old. The most recent offences occurred in 2009. He has been incarcerated since 14 July 2011. Between 1985 and 2009 he committed 22 sexual offences against both male and female children.
29 The first offences were committed against the respondent's step‑granddaughter (that is, the granddaughter of his then wife) between 1985 and 1991. His step‑granddaughter was aged between five and 11 years in this period. She would regularly come to stay with her grandmother and the respondent. During this period, the respondent digitally penetrated her vagina, rubbed his penis against her vagina, partially penetrated her vagina with his penis and rubbed her vagina with his hand. He attempted to induce the victim to engage in the sexual conduct by offering to pay her $100 for intercourse and, on another occasion, to buy her a Super Nintendo. He also told her that she would not be believed if she told anyone what was occurring and that, if she did, she would no longer be able to see her grandmother.[20]
30 The respondent was convicted of seven offences arising from this course of conduct. He pleaded guilty to four offences and was found guilty of a further three following a trial. The four offences to which he pleaded guilty involved acts of digital penetration. The evidence given by the victim at the trial indicated that the offending was representative of a larger course of conduct. For example, the victim estimated that over a five week period from December 1985 to January 1986 offences occurred up to three times a week, and during a stay over the 1986 Christmas period the offending occurred about two to three times per week. On 26 April 1995 the respondent was sentenced to a total of seven years imprisonment which was reduced to six years and 46 weeks in order to take into account time already spent in custody.
31 In 1992 the respondent committed a series of offences against his 4‑year‑old step‑grandson. These offences began in the year after the first series of offences ended. The offences involved sucking and fondling the victim's penis on four separate occasions. The respondent groomed or induced the child to comply by, for example, offering the victim an icy pole to come and lie down beside him. On one occasion the offending occurred in the presence of the victim's 6‑year‑old brother. When interviewed by the police the respondent stated that he had fondled the penis of the victim on at least 20 to 30 occasions over a seven to 12 month period whenever the opportunity arose whilst he was babysitting.[21]
32 The respondent was charged with seven counts rising from this conduct, four of indecently dealing with a child under the age of 13 and three of sexually penetrating a child under the age of 13 (by sucking his penis). On 13 August 2004, he pleaded guilty to all charges. On 8 October 2004 he was sentenced to a total effective sentence of two years' imprisonment.
33 In 1993 the respondent committed an act of wilful exposure. The victim was a 7‑year‑old female who was unknown to him. The respondent was delivering pamphlets on his motorbike and rode past the victim, who was playing. As he rode past the respondent pulled his shorts aside and exposed his penis. The victim summoned her father and both observed the respondent to again ride past exposing himself in the same manner.
34 The respondent was convicted of the wilful exposure offence in 1994 and fined $200. Whilst this offence is not a serious offence within the meaning of the HRSO Act, it is relevant in assessing the risk that such offences may be committed in the future. It is particularly significant in that the respondent was willing on this occasion to engage in sexual conduct in respect of a victim with whom he had no relationship and where the conduct was apparently opportunistic.
35 The next series of offences occurred in October and November 2009. At this time a 5‑year‑old girl was living next door to the respondent with her family. From time to time she would visit the respondent's house. On one occasion the respondent took the girl to a bedroom in his house and laid her on the bed. He then removed her underpants and his own jeans and underpants. He laid on top of her and put his penis against her vagina. He then moved down and performed oral sex on the child by putting his tongue in her vagina and licking it. The respondent told the child not to tell her mother. At the time of this offending, the respondent was aged 66.
36 The respondent pleaded not guilty to charges arising from this incident and was convicted after a trial by judge alone in 2011. The offences of which he was convicted were one offence of indecently dealing with a child under the age of 13 years by touching her vagina with his penis and one offence of sexually penetrating the child by engaging in cunnilingus. A total effective sentence of 4 years and 8 months was imposed. The respondent appealed his conviction and sentence and those appeals were dismissed on 16 January 2012.
37 In sentencing, the trial judge found that these incidents were not isolated and that there were other occasions where the respondent had engaged in licking the child's vagina. Her Honour also noted the respondent's prior criminal history and that previous terms of imprisonment and attempts at rehabilitation had not been effective in preventing reoffending. She found that the respondent had a propensity to sexually abuse young children and that the protection of young and vulnerable children in the community was a predominant consideration in sentencing.[22]
38 In 2012 the respondent was convicted of further offences against the same 5‑year‑old girl. The offending occurred on two occasions between June and November 2009. On the first occasion the child went to the respondent's house and was sitting on a couch in the lounge room watching television when the respondent picked her up and took her to his bedroom where he placed her on the bed. He pulled her dress up, pulled down her underwear and placed his penis in her anus. He then took the child into the lounge room and placed her on the couch. He laid on top of the child and put his penis in her anus again. On the second occasion the respondent asked the child to lick his penis. She refused to do so.
39 In respect of the first occasion the respondent was charged with two counts of sexual penetration of a child under the age of 13 years. In respect of the second occasion he was charged with an offence of inciting a child under the age of 13 years to do an indecent act. He pleaded not guilty to these charges and was convicted after a jury trial. On 6 December 2012 he was sentenced to a total effective term of 5 years and 4 months' imprisonment. That sentence was ordered to be served cumulatively on the sentence of 4 years and 8 months' imprisonment imposed for the earlier offences, making a total effective sentence of 10 years' imprisonment for all of the offending against the same child. An appeal against his conviction and sentence was dismissed on 20 November 2013.[23]
40 This history demonstrates that the respondent has a propensity to commit sexual offences against children, including offences of sexual penetration. The length of time over which the offences have occurred suggests that the tendency is well established. As to whether there is a pattern of offending, there are a number of recurring features in the offending conduct. They include that the children are usually very young and known to the respondent, that the respondent has access to the children by virtue of a trusted relationship, that the offending has occurred in the respondent's home and that the offending on each occasion has not been an isolated incident but a course of conduct that has continued in respect of each child over a period of weeks or months. The respondent has not used physical coercion but has endeavoured to ensure the silence of the children concerned.
41 The respondent is the eldest of three children born to his parents' union. His youngest brother died from Whooping Cough when he was two years old and the respondent was aged six. When the respondent was eight years old his father died from a cardiac arrest. Thereafter his mother was overcome by grief and became an alcoholic. At this time, the respondent's maternal grandfather came to live with the family and provided financial support. The respondent recalls his grandfather as being a significant and positive male figure in his life.
42 The respondent has denied that his mother was ever physically or emotionally abusive towards him, however there are indications that she neglected the physical and emotional needs of her children. The respondent reported that he sometimes had to scavenge for food. When he was 14 years old his younger sister was removed from the home by the child welfare authorities due to neglect of her welfare.[24]
43 The respondent reported that he was the victim of sexual abuse when he was aged 10 years old. This abuse was perpetrated by a male adult who would visit the home on some weekends to drink with his mother. The abuse occurred over a period of several weeks and initially comprised touching and fondling but culminated in an act of anal penetration. The respondent told his grandfather what had occurred and believes that his grandfather confronted the perpetrator. The abuse then ceased. The respondent said that he was undisturbed by the non‑penetrative abuse but that the act of penetration was distressing and had an effect on him, adding that he hated the perpetrator. It was only when he was about 17 years old that he began to comprehend more fully what had occurred.[25]
44 The respondent attended school until he was aged 14 years old. He has reported enjoying school and that he did not get into trouble. He had better than average grades and hoped to become an engineer. He enjoyed sport and had many friends. He left school in order to find work to support his family. His first job was as a clerk. He also attended night school with the intention of completing his high school certificate.[26]
45 The respondent's grandfather passed away in 1959 when the respondent was aged 17. Soon after this the respondent joined the army. In 1965 his mother was diagnosed with cancer. At this time the respondent was still with the army and living in Queensland. He took leave and returned to Western Australia to care for his mother. She passed away in 1972. The respondent has reported that he does not have any contact with his sister. He is unsure if she is still alive.[27]
46 After returning to Western Australia the respondent obtained work at the Swan Brewery, initially as a labourer and later as a trades assistant. He remained there until 1978, when he had a heart attack. This rendered him unable to work and he obtained a disability Support Pension. In 1982 he commenced a business delivering newspapers and leaflets. He continued to do that work until being imprisoned in 1995. On release in 1999 he resumed the delivery work and also started a courier business. In 2004 he was imprisoned again. On release in 2005 he resumed the courier business, employing a number of other drivers, until imprisoned in 2011.[28]
47 The respondent's first experience of sexual intercourse with a woman was when he was in the army. His first significant intimate relationship was at age 28 when he met and fell in love with a married woman. The relationship lasted about 6 months and they lived together for a short time before the woman decided to return to her husband. The respondent then met an older divorced woman with two teenaged children. They formed an intimate relationship and married in 1970. He reports that this was good relationship, though there were problems with children in their later teenaged years. The sexual relationship with his wife was good until the respondent had heart problems and began to experience difficulties with arousal. After the respondent's first period of imprisonment she began to attend the casino on a frequent basis. In this context his wife asked for a divorce.[29]
48 The respondent has reported that he has always had ample friends throughout his life. However, he has described problems with friendships during the period when he was married as his then wife would not allow him to have friends beyond those that they shared as a couple. In terms of current friendships, the respondent has identified one friend who he calls from prison on a regular basis. This person is supportive and the respondent intends to continue this friendship on his release. Whilst he had other friends in the past he has lost touch with them and no longer has their contact details. He has indicated an intention to try to re‑establish contact on release.
49 Departmental records indicate that the respondent's last social visit in prison was from friends in March 2020 and that he prefers not to have visitors. He received seven visits from friends in 2018 and five visits in 2019. He makes one or two telephone calls a month but records indicate that sometimes six months passes without a telephone call.[30]
Reports and assessments - s7(a), 7(b), 7(c), 7(d), 7(e), 7(f), 7(h) and 7(j) Dr Peter Wynn Owen
50 Dr Wynn Owen is a forensic psychiatrist and prepared a report pursuant to the orders of the court.[31] He found that the respondent fitted the diagnostic criteria for paedophilia, non‑exclusive type, attracted to males and females.
51 Dr Wynn Owen also undertook a risk assessment using a number of tools. In particular he utilised the Static 99R (2016 revision) test and the Risk for Sexual Violence Protocol (RSVP). The Static 99R test measures risk based on known historical factors. On this test Dr Wynn Owen found that the respondent's risk was in the above average range. Individuals with the same score as the respondent had a 21.2% likelihood of sexual recidivism within a five‑year period and a 32.1% likelihood of sexual recidivism within a 10 year period. To place these figures in context, the likelihood of an adult male committing a sexual offence over his lifetime is less than 1%. Of those males who have committed one sexual offence approximately 10% will go on to commit a new sexual offence.[32]
52 The RSVP is a clinical judgement framework that requires consideration of a number of separate factors or domains. Dr Wynn Owen considered that a number of these factors were present in the case of the respondent. Chronicity, which refers to the persistence and frequency of sexual offending, is present in that the respondent's offences were representative in each case of ongoing patterns of behaviour. Diversity in sexual offending is also present in that there was a range of age of victims, the victims included both male and female children and included children who were both familial and non‑familial victims. Psychological coercion is present as evidenced by the respondent developing a relationship of trust through ongoing contact with victims and utilising those relationships in a manner that could be described as grooming.[33]
53 Extreme minimisation or denial of sexual offending is also present. The respondent currently categorically denies any offending against the female child that was the subject of the most recent series of offences. He has also denied the offences of which he has been convicted against his step‑grandchildren, minimising those offences as being inadvertent touching. He also denies that any wilful exposure in 1994 was anything other than accidental. This risk factor is of particular relevance to treatment, although denial of sexual offending has not been found to have a direct relationship with the risk of future offending except in the presence of psychopathy.[34] Dr Wynn Owen did not find that the respondent met the threshold for psychopathy.[35]
54 The risk factor of having attitudes that support or condone sexual violence is present in the case of the respondent. This is evidenced by a number of statements attributed to him in which he has engaged in cognitive distortion; for example beliefs that children can consent to sexual contact with adults, or that they enjoy such contact, or that his love for the child justifies such contact. This factor is associated with increased risk of future offending.[36]
55 Other risk factors that are present include serious problems resulting from his own past sexual abuse, with self‑awareness and with stress or coping, as well as serious sexual deviance and problems with intimate and non-intimate relationships, planning, treatment and supervision.[37]
56 Having regard to the findings using the RSVP, Dr Wynn Owen described the probable risk scenario as being that the respondent will form a friendship with a female child whom he encounters through their proximity. After a period of grooming, which may include grooming the child's parents or guardians, contact sexual offending, including potentially digital and penile/vaginal and anal penetration, may occur. This offending, once established, is likely to continue until suspected by the parent or guardian or reported by the victim. Changes to the offending may involve opportunistic offending against a stranger victim. Any such sexual offending would likely result in significant, immediate and long-term psychological harm to the victim and may also be associated with physical harm. The imminence of any such offending is related to the time it takes to establish a relationship with the child victim. This could be quite rapid if the victim lived close by and chooses to attend the respondent's residence, as occurred in the past.[38]
57 On the basis of the RSVP, Dr Wynn Owen is of the opinion that the respondent presents a high risk of future serious sexual offending if not subject to a restriction order. Further, his Static 99R score, which takes into account his age, places him in the above average risk category. Dr Wynn Owen states that it is of concern that the respondent has, in the past, participated in five sex offender programs but has gone on to commit further offences and that his current attitudes and opinions suggest that more recent programs have not changed his thinking and are therefore unlikely to change future behaviour.[39]
58 Dr Wynn Owen concludes that the respondent's lack of self‑awareness suggests that there can be no confidence at present that he has the ability to self‑manage risk. This places the onus on external control and, if released into the community, is dependent on supervision conditions and monitoring to manage his risk to the community.
59 Dr Wynn Owen said that psychological interventions, either group or individual, were unlikely to change the respondent's risk unless his position of denial alters in the future. In his oral evidence, however, he accepted that there may be some benefit to individual counselling in assisting the respondent to develop a meaningful release plan and plans to avoid risk related circumstances. Antilibidinal therapy was not presently indicated. The respondent reported having no current sexual libido or fantasies.[40]
60 If the respondent was released on a supervision order Dr Wynn Owen said that conditions should reflect the specific risks pertaining to his circumstances, including conditions designed to prevent any unsupervised access to children and controls on possession of potential grooming materials, including but not limited to toys, lollies and children's books. He recommends that the minimum duration for a supervision order should be six years.[41]
61 Dr Wynn Owen was of the view that, bearing in mind the respondent's age and his established pattern of offending, it would be possible for the risk of further offending to be adequately managed in the community on a supervision order.[42] This is viable because conditions could be put in place to prevent risk scenarios occurring at an early stage, for example by ensuring that the respondent does not have access to children or opportunities to establish a relationship with children. However, integral to any viable supervision order is the availability of appropriate accommodation. Dr Wynn Owen accepted that in the absence of such accommodation a supervision order would not be appropriate.[43]
62 Dr Yewers is a counselling psychologist and was engaged to prepare a report under s 74 of the HRSO Act.[44] She conducted interviews with the respondent for this purpose.
63 Dr Yewers notes in her report that the respondent has a significant history of sexual offending. There are a number of factors relevant to the past offending. They include adverse childhood experiences, including family instability, neglect and sexual abuse, which likely contributed to a psychological vulnerability to later difficulties. These relate to deficits in the skills necessary to establish strong and stable interpersonal relationships and an impeded ability to adaptively cope with emotional and life problems, resulting in social isolation and intimacy problems. The more proximal drivers of the respondent's offending include his sexual interest in children and his desire to seek to meet his emotional and intimacy needs through sexual contact with children. There is documented evidence that the respondent has sought to meet his own needs through children, turning to them for acceptance and affection when these were not fulfilled in his adult relationships.[45]
64 Another factor in the respondent's offending is his categorical denial of the later offending and minimisation of the earlier offending involving his step‑grandchildren. The respondent engages in cognitive distortions, that is inaccurate or biased thinking which justifies and rationalises his behaviour. In particular, he has ascribed to his victims adult-like characteristics, including an ability to make decisions about sex and the denial of harm to the victims. Dr Yewers notes that these offence-supportive beliefs have endured over time and have persisted despite multiple treatment programs.[46]
65 Dr Yewers undertook a risk assessment using the psychopathy checklist revised (PCL-R), Static 99R and the RSVP. The respondent's score on the PCL‑R did not meet the diagnostic cut off for psychopathy.[47] In regard to the Static 99R, the respondent's score placed him in the above average risk category for being charged and convicted of another sexual offence. This result was consistent with that obtained by Dr Wynn Owen.
66 In regard to the RSVP, like Dr Wynn Owen, Dr Yewers found that a number of risk factors were present in the case of the respondent. She found that the most probable risk scenario was that the respondent would reoffend in a manner similar to his earlier offences. Such offending is likely to occur in the context of an enduring sexual interest in children and in seeking to meet his emotional needs through children. This might be due to feeling disaffected and disconnected in an intimate relationship and unable to adaptively address issues. The victims are likely to be female but may also be male. The offences are unlikely to be opportunistic and it is probable that the respondent will have established relationships with either the victim or their care giver. The respondent may overcome resistance through fostering special relationships and gift giving. The most likely harm to the victims will be psychological but there is a possibility of physical harm if sexual penetration occurs. The respondent is unlikely to use physical coercion. Once offending commences it is likely to occur at a frequency dependant on access to the victim and to continue over a protracted period.[48]
67 One of the factors considered by Dr Yewers in respect of the RSVP was manageability. This factor is also relevant to the suitability of a supervision order. Dr Yewers noted that the respondent has serious problems making and implementing plans for the future that are explicit, stable, reasonable and feasible. His plans, should he be released, are vague and non‑specific. He does not have firm accommodation plans. He appears unaware of the unviability of restarting his business at his age and after a period of 10 years in prison. He has an unrealistic expectation that he can resume a relationship with a woman from the Philippines who he has only had contact with through the Internet and where the last contact was over 10 years ago.[49] Although he has indicated an intention to avoid contact with children, his statements about not placing himself in high risk situations reflected a lack of risk management planning. The fact that treatment has not proven effective is also a relevant factor to manageability. Dr Yewers did not consider that there was likely to be serious problems with the respondent's motivation or willingness to comply with supervision. However, in this regard, the views of Dr Wynn Owen are different as he notes that the later series of offending occurred at a time when the respondent was a reportable offender.
68 Dr Yewers' conclusions are that the respondent presents with a high risk of future serious offending if not subject to a restriction order. In oral evidence, Dr Yewers accepted that the risk of further offending could be adequately managed in the community on a supervision order. In her view, a period of five years would be sufficient. For the purpose of ensuring adequate protection of the community, and to support continued rehabilitation of the respondent, she recommended that the conditions of a supervision order should include external monitoring, individual psychological counselling and support to develop friendships and meaningful and constructive activities. She said that psychological treatment would also be beneficial if a detention order was made. Psychological counselling could target risk factors and assist in the development of skills to manage and avoid such factors. Counselling in a prison setting could focus on risk management planning.[50]
69 Dr Galloghly is a senior clinical and forensic psychologist formerly employed by the Department of Justice. He prepared a report to review treatment options and identify relevant supervision management and intervention strategies.[51] His report is headed 'Proposed High Risk Serious Offender Management Plan'.
70 Dr Galloghly reviewed the available material, including the respondent's responses to treatment in the past. He concluded that although the respondent has completed substantial treatment his progress has been poor, and he has reoffended a number of times despite treatment. His outstanding treatment needs relate to his paedophilic sexual interests and the likely perpetration of sexual offending against children as a means of coping. There are also indications of him having intimacy deficits and possibly of emotionally identifying with children. Additional treatment needs relate to problem solving issues and having limited social supports.[52]
71 Dr Galloghly said that whilst the respondent has outstanding treatment needs, his persistent denial and minimisation of sexual offending behaviour limit his capacity to benefit from treatment. Indeed, when taken together, his history of treatment, recidivism, denial and his performance during recent assessments, suggest that he is treatment resistant. Given the respondent's advanced age, his poor response to offending focussed treatment is unlikely to change.[53]
72 Dr Galloghly said that on a practical level the respondent will likely need assistance in managing release and adapting back to the community. Although the respondent is dismissive of any significant problem, his release plans are unrealistic. He is also quite isolated and will face onerous reporting and compliance obligations if released on a supervision order.
73 Dr Galloghly conducted a screen of the respondent's cognitive functioning using the Montreal Cognitive Assessment Screen tool. This suggested that he may have mild cognitive impairment. It is unclear whether the deficits indicated are mainly due to his age or are indicative of a more significant cognitive decline. Whilst in his written report Dr Galloghly said he did not believe it was necessary for a full cognitive and neurological assessment to be completed,[54] in oral evidence he accepted that there would be some benefit in doing this if there was a noticeable change in the short‑term. If, as suggested by Dr Yewers, the respondent was given individual psychological counselling this is a matter that could be investigated and pursued by the counsellor.[55]
74 Dr Galloghly understood that resources were available to provide the respondent with psychological counselling on at least a fortnightly basis. He accepted that there may well be benefits in such counselling, including in assisting the respondent to develop more realistic release plans. Counselling with the same psychologist could continue if the respondent were released on a supervision order in the future.[56]
75 Ms Hill is a senior Community Corrections officer with responsibility for the respondent. For the purposes of the restriction order hearing she prepared a community supervision assessment report dated 5 July 2021[57] and an updated report dated 10 November 2021.[58] She also provided further information in her oral evidence at the hearing.
76 Ms Hill's reports summarised the respondent's sexual offending history, his engagement in programs whilst in prison, his response to parole, his prison behaviour, the types of behaviour that would need to be managed if released into the community and suggested conditions for managing that behaviour. It is unnecessary for present purposes to summarise the contents of the reports in those respects.
77 Ms Hill also detailed her enquiries regarding the availability of accommodation. The respondent has not secured accommodation in the community and his only plan is to reside in accommodation at a nominated hotel. Enquires by Ms Hill confirmed that the hotel does take some longer term tenants however it had no vacancies at present. Furthermore, the indications were that the management was not favourably disposed to housing a person who was considered to have a 'problem'.[59] The respondent has one supportive friend but acknowledges that that friend would not be able to provide him with accommodation. The respondent has not suggested any alternative accommodation options to Ms Hill.
78 Ms Hill has explored various other accommodation options. This has included hostels such as St Bartholomew's, The Beacon and 55 Central. Inquiries established that referrals could be submitted on behalf of the respondent but there were likely to be barriers in terms of acceptance. Concerns were identified given that the respondent is a sex offender and his conditions on release would require GPS monitoring and a high degree of scrutiny. There would also be a problem in allocating accommodation in the absence of a confirmed release date. In any event, most of the accommodation offered by these services is short‑term and not conducive to achieving stability in the community. St Patrick's accommodation service was also approached however they require a face‑to‑face assessment in the community in order to accept a referral.[60]
79 On 20 May 2021, the respondent was referred to Uniting WA and accepted on to that service's specialist re‑entry program on 28 May 2021. Uniting WA require a minimum of six months' engagement before being willing to provide support and accommodation post‑release. In any event, more recent advice from Uniting WA is that, whilst they would provide him with some level of support to transition in the community, they cannot provide accommodation. This is because the contract with the State to provide accommodation services is limited to HRSO offenders who are no more than 65 years of age.[61] It is not immediately apparent why this limitation exists. In oral evidence, Ms Hill suggested that it may be because the accommodation services provided by Uniting WA are intended to be relatively short‑term and that there may be difficulties in finding longer term accommodation for older offenders. It is not evident why there should be any greater difficulty in finding accommodation for an older offender, but nonetheless the limitation exists. Its effect is to make the already very limited accommodation options even more limited in the case of the respondent.
80 As a result of Uniting WA identifying concerns regarding the respondent's age and ability to live independently, Ms Hill explored the possibility of an assessment by the Department of Health's aged care assessment team (ACAT). The objective was to determine whether the respondent has age related impairment such as would make him eligible for accommodation in an aged care residential facility. Liaison occurred with the senior nurse at the prison where the respondent presently resides and an ACAT coordinator. It was determined that an ACAT assessment was unnecessary based on the respondent's current medical information and presentation. Ms Hill's report states that it was decided that the respondent is independent and has all of his functional needs met in the custodial environment and that there did not appear to be any cognitive impairment.[62]
81 In oral evidence, Ms Hill said that since that decision regarding an ACAT assessment was made the report of Dr Galloghly had become available. His reference to the possibility of cognitive impairment had been noted. Ms Hill said that she had also noticed that in her most recent dealings with the respondent he appeared to be having some difficulty with his short‑term memory. In these circumstances she said the intention was to seek a further meeting with ACAT, raising the additional information and asking for the decision regarding an ACAT assessment to be reconsidered. Ms Hill was unsure as to the timeframe in which this could occur. She also said that in the event that an ACAT assessment was undertaken it was a relatively detailed process that could take some time to finalise.[63]
82 Ms Hill had also pursued a number of other accommodation options. One was with the independent living unit, a serviced unit at Juniper. An application was submitted, however it was declined, primarily due to the respondent being incarcerated. The management of the unit did indicate that the respondent could apply again upon being released into the community.[64]
83 One option that appeared to have some prospect of success was obtaining rental accommodation from the Department of Planning Lands and Heritage. That department has a number of properties set aside for road widening or demolition which are available for rent. Enquiries established that to be eligible for this housing, participants need to have proof of income and rental references. On 5 October 2021 a meeting was held with Uniting WA and that service was requested to liaise with the department to ascertain if this was a viable option for the respondent. Uniting WA subsequently consulted with the department and were advised that the respondent could not be considered for a tenancy because he was unable to prove what his income would be on release. There were also concerns with the respondent being unable to provide rental references.[65] At the hearing I questioned Ms Hill as to the problem regarding income given that the respondent would clearly be entitled to an aged pension. In these circumstances, for the department to require proof of income seems to be an unnecessarily bureaucratic response to the enquiries. Ms Hill said that, in light of this, further efforts would be made to see if a property could be accessed.[66]
84 Other options, including community housing, caravan parks, motels and short stay apartments have been considered. The respondent is on the wait list for community housing and has been so since 2019. However, the minimum wait period is eight years and thus it is unlikely he will be offered a property in the short to medium term. Caravan parks and other short‑term accommodation is unsuitable for various reasons, including the respondent's age.[67]
Is the respondent a high‑risk serious offender?
85 The evidence satisfies me to a high degree of probability that it is necessary to make a restriction order to ensure adequate protection of the community from an unacceptable risk that the respondent will commit a serious offence. In particular, having regard to the respondent's offending history, his outstanding treatment needs and the opinions of Dr Wynn Owen and Dr Yewers in regards to the high risk of serious reoffending, the likelihood of further serious offending is such that the community could not be adequately protected unless a restriction order is imposed.
Continuing detention order or supervision order?
86 Having decided that the respondent is a high‑risk serious offender it is necessary to determine whether he should be detained pursuant to a continuing detention order or released into the community pursuant to a supervision order. Before I can make a supervision order I must be satisfied, on the balance of probabilities, that the respondent would substantially comply with the standard conditions of a supervision order and that the totality of the conditions would provide adequate protection of the community against the risk that the respondent would commit a serious offence. The respondent bears the onus of establishing that he would substantially comply with the standard conditions.
87 In this case, the State accepts that a supervision order would be appropriate because the risk of reoffending can be adequately managed in the community. However, that concession is subject to the availability of suitable accommodation. That conclusion is supported by the evidence of Dr Wynn Owen and Dr Yewers.
88 I take into account that the respondent is now aged 78 and has spent over 10 years in prison. To impose a continuing detention order on a man of the respondent's advanced years is a significant matter because it deprives him of his liberty in circumstances where his remaining life must be comparatively short and because his ability to adjust to a life in the community will be more difficult as he further ages. However, there are a number of factors that weigh against a supervision order. These include the respondent's stance of denial, the failure of past treatment, his unmet treatment needs and the lack of accommodation. I accept that the first three factors may be capable of being addressed by suitably restrictive conditions on a supervision order. However, the unavailability of suitable accommodation is a critical factor that stands in the way of release on a supervision order. It would be impossible for the respondent to substantially comply with the standard conditions of a supervision order in the absence of permanent suitable accommodation.
89 A continuing detention order in relation to an offender is an order that the offender be detained in custody for an indefinite term for control, care or treatment.[68] The objects of the HRSO Act are to provide for the detention or supervision of high‑risk serious offenders to ensure adequate protection of the community and victims, and to provide for the continuing control, care or treatment of high‑risk offenders.[69] The HRSO Act provides for periodic reviews of continuing detention orders: after the first year and every two years thereafter.[70] There is also an option for an extraordinary review if exceptional circumstances exist.
90 The significance of depriving a person of their liberty, not for something that they have done but for something that they may do, is such that the risk must be regularly reassessed. That factor also requires that every reasonable effort be made to ensure that the respondent has his treatment needs assessed and that options for release are explored, so that the chances of him being released at the next review date are optimised.
91 At the hearing it was apparent that the principal impediment to the respondent's release was the unavailability of suitable accommodation. One of the factors that limits the respondent's options in this regard is his advanced age. That, of course, is not a problem that will decrease in the future; indeed it emphasises the need for some degree of urgency in exploring possible options. I accept that Ms Hill and Uniting WA have expended significant effort in this regard. However, it was apparent from the hearing that other options may be available. It was also apparent that there may be some benefit in psychological counselling, if not to reduce risk, at least in assisting the respondent to formulate viable plans for release and develop skills relevant to compliance with a supervision order.
92 There is a risk that once a detention order has been made the prison authorities will default to treating the respondent as if he is simply another prisoner serving a sentence. A person detained under the HRSO Act is not a prisoner and should not be treated as such. One of the reasons such a person is detained is to receive treatment. In my view, every effort should be made to ensure that the following things are done before the next review;
93 I order that the respondent be detained in custody for control, care and treatment.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
[14] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4, 52.
[23] JAW v The State of Western Australia [2013] WASCA 261.