Director of Public Prosecutions (WA) v Yates [No 4] - [2017] WASC 250

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- YATES [No 4] [2017] WASC 250

CORAM: MARTIN CJ

HEARD: 26 MAY 2017; 23 AUGUST 2017

DELIVERED : 28 AUGUST 2017

FILE NO/S: DSO 3 of 2013

BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
NIGEL CHRISTOPHER YATES
Respondent

FILE NO/S :INS 351 of 2016

BETWEEN :THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
NIGEL CHRISTOPHER YATES
Defence

Catchwords:

Criminal law - Dangerous sexual offender - Contravention of supervision order - Whether unacceptable risk that respondent would commit another serious sexual offence - Supervision order amended and extended

Legislation:

Community Protection (Offender Reporting) Act 2004 (WA), s 85G
Dangerous Sexual Offenders Act 2006 (WA)

Result:

Conditions of supervision order amended
Term of supervision order extended
Respondent re-released into the community

Category: B

Representation:

DSO 3 of 2013

Counsel:

Applicant: Ms S Markham
Respondent: Ms M R Barone

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: Barone Criminal Lawyers

INS 351 of 2016

Counsel:

Prosecution : Ms S Markham
Defence: Ms M Barone

Solicitors:

Prosecution : Director of Public Prosecutions (WA)
Defence: Barone Criminal Lawyers

Case(s) referred to in judgment(s):

Director of Public Prosecutions (WA) v Brown [No 5] [2012] WASC 276
Director of Public Prosecutions (WA) v Hart [No 3] [2010] WASC 253
Director of Public Prosecutions (WA) v MJD [No 2] [2015] WASC 346
Director of Public Prosecutions (WA) v Stephenson [2015] WASC 496
Director of Public Prosecutions (WA) v Yates [2014] WASC 136
Director of Public Prosecutions (WA) v Yates [No 2] [2015] WASC 201
Director of Public Prosecutions (WA) v Yates [No 3] [2016] WASC 213
MARTIN CJ:

Summary

On 15 April 2014 I ordered that Nigel Christopher Yates be detained in custody for an indefinite term pursuant to s 17 of the Dangerous Sexual Offenders Act 2006 (WA) (the Act).[1] In June 2015, after conducting a review of Mr Yates' continuing detention order, I decided that the continuing detention order should remain in force.[2] However, on 1 August 2016, after conducting the second review of Mr Yates' continuing detention order, I concluded, and ordered, that the continuing detention order should be rescinded and that Mr Yates be released into the community subject to the conditions stipulated in the supervision order which I made, which was for a term of five years.[3]
[1] Director of Public Prosecutions (WA) v Yates [2014] WASC 136.
[2] Director of Public Prosecutions (WA) v Yates[No 2] [2015] WASC 201.
[3] Director of Public Prosecutions (WA) v Yates [No 3] [2016] WASC 213.
The reasons which I have given for each of those decisions set out Mr Yates' personal history and circumstances, the reasons why I made the continuing detention order in 2014, why I continued that order in 2015 and why I rescinded the order and directed that Mr Yates be released into the community under the terms of a supervision order in 2016. The reasons below should be read in the context of all previously published reasons, as the various matters addressed in those reasons will not be reiterated herein.

The matters before the court

There are two separate but related matters before the court. First, Mr Yates has been convicted, on his own plea, of three offences of contravening requirements of the supervision order which I made, contrary to s 40A of the Act. It is necessary for the court to pass sentence in respect of those offences, the details of which are set out below.
Second, the Director of Public Prosecutions has applied, pursuant to s 22 of the Act, for an order that Mr Yates be detained in custody for an indefinite term, or, in the alternative, for an order that the supervision order which I made be amended on such terms considered appropriate in order to achieve compliance with the order or in order to ensure the adequate protection of the community. The court's power to make either of the orders sought by the Director is conditioned upon the court being satisfied, on the balance of probabilities, that Mr Yates is likely to contravene, or has contravened, a condition of the supervision order. Obviously that condition is satisfied by Mr Yates' admission of the three offences to which I have referred.

The contravention offences

The supervision order which I made contained a condition in the following terms:[4]
Not possess, consume or use any prohibited drugs or substances including, but not limited to, cannabis.
[4] Condition 32.
Mr Yates has pleaded guilty to three counts of contravening that condition without reasonable excuse. The first offence was committed between 4 October and 11 October 2016, when he consumed or used cannabis and methamphetamine.[5] The second offence was committed between 11 October and 19 October 2016 by the consumption of cannabis.[6] The third offence was committed on 21 October 2016 when Mr Yates consumed or used amphetamine and methamphetamine.[7]
[5] Charge number PE57744/2016.
[6] Charge number PE58859/2016.
[7] Charge number PE60262/2016.
Each of the offences was detected as a consequence of Mr Yates submitting to urinalysis testing as directed by police officers pursuant to condition 44 of the supervision order.[8] Analysis of the urine samples provided by Mr Yates revealed the presence of the prohibited substances identified in each charge. The charges were laid in the latter half of October 2016 and following negotiations between counsel for Mr Yates and the prosecution, pleas of guilty were entered on 10 February 2017. Sentencing on those charges was deferred for consideration in conjunction with the application brought by the Director for rescission or variation of the supervision order.
[8] On 11 October, 19 October and 21 October 2016 respectively.

Other contraventions

The evidence establishes that Mr Yates contravened other conditions of the supervision order between his release in early August 2016, and his arrest and return to custody on 22 October 2016. Criminal charges were not brought in respect of some of these contraventions because of their minor nature and the extenuating circumstances in which the breaches occurred.
On 2 August 2016, Mr Yates entered a shopping centre after 1.00 pm, contrary to a written direction which had been issued to him the previous day and which permitted him to only enter the shopping centre between 10.00 am and 1.00 pm daily. The next day, on 3 August 2016, Mr Yates again entered the zone around the shopping centre outside the times permitted in the written direction he had been given. He explained that he had done so because he was on his way to catch a bus to meet an appointment with the Sex Offender Management Squad. Mr Yates was given a written letter of warning in respect of these two contraventions on 9 August 2016.
On 18 August 2016, Mr Yates left his designated residence at 6.53 am, contrary to a written direction which prohibited him from leaving before 7.00 am. Mr Yates explained that he did not know how to tell the time - a proposition corroborated by his partner. No formal action was taken in respect of this breach.
On 22 September 2016, Mr Yates returned to his designated residence at 7.13 pm, which was 13 minutes later than the evening curfew of 7.00 pm stipulated in a written direction provided to him pursuant to a condition of the supervision order. He explained that he had been visiting extended family members and did not leave sufficient time to return home. In the light of Mr Yates' difficulty telling the time, the stress associated with the deteriorating health of his partner (see below), recent deaths in his family and recent incidents involving his relatives, it was decided that no formal action would be taken.
On 10 October 2016, Mr Yates failed to report for supervision with his supervising officer. He explained that he had forgotten this appointment because his partner had been taken to hospital by ambulance the night before. That fact was confirmed with the relevant hospital.
On 20 October 2016, Mr Yates failed to respond to telephone calls made in response to an alert which indicated that the power level of the battery on Mr Yates' GPS transmitter device was low. The device lost power 30 minutes later and remained without power for two hours.
Charges were brought against Mr Yates in respect of the contraventions on 10 and 20 October 2016. Those charges have been dealt with in the Magistrates Court.

The illness and passing of Mr Yates' partner

My earlier reasons record the relationship which Mr Yates formed with a woman of mature years while he was in custody. The potentially beneficial aspects of that relationship, including the fact that Mr Yates' partner was willing and able to provide him with accommodation upon his release from custody, were significant factors in my decision to rescind the continuing detention order and release Mr Yates under a supervision order. Although there were clear indications that the woman concerned had not enjoyed good health prior to that decision being made, unfortunately her health deteriorated very significantly following Mr Yates' release, and ultimately she passed away on 24 December 2016, by which time Mr Yates had been returned to custody.
The deteriorating health of Mr Yates' partner resulted in her repeated admission to hospital - on or about 27 August, 14 September, 20 September, 23 September, 9 October and 11 October 2016, for varying periods. Her deteriorating physical health appears to have been accompanied by significant deterioration in her mental condition, and her behaviour became increasingly erratic. It seems clear that she was from time to time disoriented in time and place, unable to adequately care for herself, or attend to personal hygiene and the cleanliness of the residence she shared with Mr Yates. She was aggravating her medical condition by consuming junk food, which frustrated Mr Yates.

Other relevant circumstances

Mr Yates' conduct in the community whilst released under supervision must also be viewed in the context of other relevant circumstances, including the death of his brother. Because Mr Yates was confined to certain areas by the GPS tracking device he was required to wear, he was unable to attend his brother's funeral in a regional town, which caused him considerable stress. Other sources of stress over this period included relationships with the members of his partner's family, and members of his own family, and the repeated offers of alcohol and other illicit substances which Mr Yates received. It is clear from the offences which he has admitted that he ultimately succumbed to the temptation of those offers. He explained his use of methamphetamine on the first occasion it was detected in his urine on the basis that it was the first time he had ever tried it, that he did not like it, and would not use it again. However, methamphetamine was detected in his urine less than two weeks later. Similarly, his explanation for being found in possession of a small quantity of cannabis was that he had been given the cannabis and proposed to sell it to obtain money. However, clearly he was using cannabis at the time, as it was detected in his urine on two occasions. His explanation for the use of those illicit substances by reference to the stress which he was experiencing is more convincing.

The evidence

The evidence adduced by the Director in support of the application for orders in consequence of Mr Yates' contraventions of the supervision order took the form of a bundle of relevant documents establishing the matters to which I have already referred, and the evidence of three witnesses - Dr Brett, a psychiatrist, Dr Borg, a psychologist, and Ms Yun, a senior Community Corrections Officer.

Dr Brett

The evidence given by Dr Brett at the hearing which resulted in my rescission of the continuing detention order is summarised in my reasons for that decision.[9] The evidence given by Dr Brett at the most recent hearing should be viewed in that context.
[9] Director of Public Prosecutions (WA) v Yates [No 3].
Dr Brett affirmed the opinions expressed in a written report which he prepared following his review of Mr Yates in April 2017. In that report he summarised the information he had been given with respect to the sequence of events following Mr Yates' release on a supervision order up until the death of his partner, including the circumstances in which Mr Yates was again taken into custody. In that context Dr Brett noted that the sequence of events including his partner's ill health and mental confusion, and the death in his family had the consequence that the factors that were critical to his stability in the community, including his relationship and his accommodation, had become problematic.
On the subject of risk, Dr Brett remained of the view he expressed at the hearing last year to the effect that the risk of Mr Yates reoffending would increase if he became intoxicated or had problems in his relationship. I digress to observe that both of those things occurred, in the circumstances I have described.
Dr Brett liaised with Mr Summerton, a psychologist, who is providing continuing counselling services to Mr Yates. Dr Brett reported that he was impressed by Mr Summerton's knowledge of Mr Yates and the gains which had been achieved through the counselling process.
Dr Brett also repeated the view he had expressed during the hearing last year to the effect that the risk of Mr Yates committing a serious sexual offence is unlikely to reduce significantly while he is in a prison environment.
In his report, Dr Brett expressed the view that Mr Yates' failure to comply with the conditions of his supervision order was the consequence of a number of unpredictable events. The minor breaches of conditions appear to have come about as a consequence of difficulties transitioning into the community and misunderstandings, including his difficulty telling the time. However, when his partner became unwell and confused, there was an adverse impact upon Mr Yates' coping mechanisms and his day-to-day activities, which would have been difficult to predict.
In the course of his oral evidence, Dr Brett confirmed that he understood that, despite the stresses to which Mr Yates was subject following his release into the community, he attended all 12 of his counselling sessions with Mr Summerton, and appeared to be engaging well with him. Dr Brett noted that there appeared to be no factors precipitating Mr Yates' use of illicit substances other than the stress to which he was subject, and in that context noted that despite the stress to which he had been subject while in custody, including the recent death of his mother, he did not appear to have resorted to the use of illicit substances, which are known to be readily available within the prison environment.
Dr Brett expressed the view that maintaining the counselling relationship with Mr Summerton was particularly important, and that if Mr Yates was released into the community, it would be important to provide him with what were described as 'wrap around' services to supervise his transition from the prison environment.
In cross‑examination, Dr Brett noted that the previous serious sexual offences committed by Mr Yates were all committed within a very short time of his release from custody. By contrast, in the 12 weeks Mr Yates was in the community under a supervision order, there was no evidence of any risk of a serious sexual offence being committed by him. Dr Brett confirmed that this was a matter of some significance, given the considerable stress to which he was subjected during that period. In that context Dr Brett noted that although in the past his sexual offending appeared to be correlated with substance abuse, his use of illicit substances following his release under a supervision order had not resulted in the commission of any sexual offences. Dr Brett concluded that this suggested that the various protections that had been put in place on the supervision order had been effective.
When Mr Yates' reaction to the death of his mother and the refusal of the prison authorities to permit him to attend her funeral were described to Dr Brett, he expressed the view that Mr Yates managed the death of his mother, and his frustration at being unable to attend her funeral, very well.
Dr Brett also noted that during his time on release, Mr Yates appeared to have demonstrated a capacity to adapt to a metropolitan way of life, and had demonstrated an ability to attend appointments on time (with the one exception to which I have referred). Dr Brett expressed the view that given the appalling circumstances in which Mr Yates found himself following the rapid deterioration in health of his partner, Mr Yates had coped very well. In his view, the failure of Mr Yates to comply with the conditions attached to his supervision order in those circumstances did not lead to the conclusion that he was likely to fail if released into a supported accommodation regime with an appropriate Aboriginal mentor and wrap around services, without the stresses that had attended his relationship with his partner. Put another way, Dr Brett did not consider that the events which had transpired following his release under supervision were indicative of an inability to comply with the conditions of supervision but were rather, in his words, 'indicative of a nightmare unpredictable scenario'.[10]
[10] Ts at 475.
When asked if Dr Brett would recommend any amendment to the conditions of the supervision order if a continuing detention order was not made, Dr Brett suggested 'starting the clock again … so a further 5 years'[11] because the recent period on supervision was 'a false start … the plan fell apart through no fault of his own …'.[12]
[11] Ts at 477.
[12] Ts at 477.
Dr Brett considered that the availability of an appropriate mentor, and structured daily activity would significantly reduce risk, noting that Mr Yates enjoyed painting and appeared to have had some success in selling his paintings.

Dr Borg

Dr Borg is a clinical and forensic psychologist employed by the Department of Corrective Services. She affirmed the views expressed in a report which she had prepared in April 2017, drawing upon information provided to her by Mr Summerton, her interviews with Mr Yates, and her communications with various other officers of the Department of Corrective Services.
Dr Borg reported that Mr Summerton noted that Mr Yates had attended 22 counselling sessions since the last annual review, and was engaging more freely in therapy over time. Twelve of those sessions were attended while Mr Yates was in the community. Mr Summerton expressed the view that in general Mr Yates had coped well in the community, which was to some extent surprising given the ill health of his partner and the conditions in which he was living. Mr Summerton noted that according to Mr Yates, his partner was unable to care for herself, was erratic in her behaviour, maintained poor hygiene and self-care, went missing from time to time and was hospitalised on various occasions; the house was unhygienic and poorly maintained; and the couple were financially unstable. In that context Mr Summerton noted that Mr Yates reported that his use of substances was attributable to the stress to which he had been subjected, although it was difficult to gauge how he would have coped in more normal or reasonable circumstances. In this context however, Mr Summerton noted that on the day Mr Yates was arrested he was on his way to a drug and alcohol counselling session.
Mr Summerton also expressed the view that Mr Yates had developed practical coping skills which included painting, exercise, avoiding stressors, engaging in activities that will calm or be of benefit to him, and consulting with his counsellors, including Mr Summerton. Mr Summerton also noted that Mr Yates was positively oriented towards his supervision and monitoring structure, which included the Sex Offender Management Squad, his Community Corrections Officer, and Mr Summerton. He was always on time, or early, to his counselling sessions.

Dr Borg reported that Mr Yates had provided her with several examples of occasions upon which he had refused alcohol and drugs offered to him in the prison and in the community. He explained his use of illicit substances by reference to the stress to which he was subject, including his concern about his deceased brother, and his inability to attend his funeral. Mr Yates reported to Dr Borg that he had been attending his appointments, watching television, painting, was learning to tell the time, and felt he was adjusting well to life in the community before he was rearrested.
Dr Borg reported that Mr Yates appeared to appreciate the detrimental impact of substance use on his behaviour, and its correlation with his previous sexual offending. Dr Borg noted that Mr Yates had expected to be released into the care of a woman with whom he planned to develop a romantic relationship and instead was confronted with the reality of her poor physical and mental health which required him to care for her practical needs. So, instead of him being provided with guidance, support and practical assistance by his partner post‑release, the burden was reversed, and he was required to provide that form of assistance to her.
In her report, Dr Borg concluded that as a result of his counselling sessions with Mr Summerton, Mr Yates had developed an understanding of consent, techniques for refusing suggestions from his peers, an appreciation of the disinhibiting effect of substance use, and had gone some way towards accepting responsibility for his offending behaviour. However, he continued to displace blame for some part of his offending behaviour, and had limited insight into his motivators to offend.
During cross‑examination, Dr Borg agreed that during his time in the community Mr Yates appeared to have drawn upon the support and assistance available to him, including on one occasion calling the police to deal with a circumstance with which he was confronted, and there was no suggestion that he had ever responded violently to any of the situations in which he had found himself. Dr Borg agreed that apart from his relapse into the use of illicit substances, Mr Yates had performed very well under difficult circumstances while in the community. She agreed that his failure to comply with the conditions of his supervision order in those circumstances should not be taken to indicate that he is likely to fail to comply in more supportive and appropriate circumstances. Further, although he had relapsed into substance misuse under stress, on other occasions he had refused illicit substances offered to him.

Ms Yun

Ms Yun is a senior Community Corrections Officer employed by the Department of Corrective Services. She affirmed a report which she had written in May 2017 drawing upon various sources of information available to her. The report covers the various contraventions of the supervision order to which I have referred, the supervision provided to Mr Yates during the time he was in the community, and the prison record of Mr Yates being non-compliant with prison staff after he had been advised that an appeal against the refusal of permission to attend his mother's funeral had been rejected. The report also addressed the various steps that had been taken in an attempt to arrange accommodation for Mr Yates in the event that the continuation of his supervision order was affirmed.
In cross‑examination, Ms Yun confirmed that if accommodation could be found for Mr Yates in the metropolitan area, 'wrap around' services would be provided by a combination of Outcare, the Sexual Offender Management Squad, senior Community Corrections officers, psychologists and police. Further, GPS monitoring equipment would enable the Department to constantly monitor his compliance with conditions imposed with respect to his movements.
However, it was clear from Ms Yun's evidence that the Department of Corrective Services was not in a position to provide any suitable accommodation for Mr Yates, should he be released, and all attempts to find other accommodation for Mr Yates with family in either Perth or the Goldfields region, or in accommodation provided by other suppliers, had been unsuccessful.

The adjournment of the hearing

In the light of the evidence with respect to the unavailability of accommodation for Mr Yates in the event that I declined to make a continuing detention order, from a practical perspective the proceedings had become moot, at least until such time as accommodation could be found for Mr Yates and its appropriateness assessed. Indeed, I was confronted with an insoluble dilemma. Under s 23 of the Act, a court considering an application brought on the basis of contravention of a supervision order can only make a continuing detention order if satisfied that there is an unacceptable risk that, unless such an order is made, the person concerned would commit a serious sexual offence. On the basis of the evidence which I had heard, and for reasons which I will shortly explain, I was not so satisfied. However, I remained in no doubt that there would be an unacceptable risk of Mr Yates committing a serious sexual offence if the supervision order to which he was subject was not continued, but there was simply no accommodation in which he could be placed in order to enable such an order to operate effectively.
After discussing this conundrum with counsel, it was generally agreed that the preferable course was to adjourn the hearing in the hope that appropriate accommodation within the community might be found for Mr Yates. Happily, that possibility eventuated, and further evidence with respect to that accommodation, and the services that could be provided to support Mr Yates if placed in that accommodation, was led at a hearing conducted on 23 August 2017, a little over 10 months after Mr Yates was taken into custody because of his contraventions of the supervision order.

The further evidence

At the resumed hearing, further evidence was given by Ms Yun in the form of a written report dated 15 August 2017. In that report, Ms Yun notes that Outcare had advised of the availability of accommodation in a property made available pursuant to the Dangerous Sexual Offender Supported Accommodation Programme. The property is one of four units in a complex situated in a suburb of Perth. It has been subjected to a desktop spatial analysis by WA Police, which identifies areas of interest within a two kilometre radius. Areas which might be associated with particular risk can be the subject of exclusion zones implemented by written directions given to Mr Yates by a Community Corrections officer. Compliance with those directions can be monitored through the use of GPS tracking. Ms Yun further proposes that Mr Yates' exposure to risk might be reduced by the imposition of a curfew between 7.00 pm and 7.00 am.
Ms Yun also reports that she has received advice from the Victim Offender Mediation Unit that the proposed address poses no issues with respect to any victims of offences committed by Mr Yates.
Ms Yun also reports that Outcare have confirmed that they will be able to provide Mr Yates with at least 12 months of support following his release, including support in the form of assistance to secure private rental accommodation and in navigation throughout the Perth metropolitan area. Although no mentor is currently available for Mr Yates, Outcare has confirmed that they are continuing to search for possible options for the future.
Ms Yun confirms that Mr Yates has again been referred to the Holyoake Drug and Alcohol Through-care Service and his counsellor has confirmed that Mr Yates will be able to receive further substance abuse counselling at the Holyoake premises in Victoria Park following his release. She has also confirmed that fortnightly psychological counselling will be available with Mr Summerton.

Disposition

Dealing firstly with the application by the Director based on Mr Yates' contraventions of the supervision order which I made, being satisfied that Mr Yates has contravened that order, s 23 of the Act provides that I may follow one of three alternative courses. They are:
(a)make an order amending the conditions of the supervision order, or extending the period of the order, or both; or
(b)make a continuing detention order; or
(c)make no order.
As I have noted, I can only make a continuing detention order if I am satisfied that there is an unacceptable risk that if such an order was not made, Mr Yates would commit a serious sexual offence. Further, in deciding which of the orders I should make, the paramount consideration which I must take into account is the need to ensure adequate protection of the community.[13] It follows that if I am satisfied that there is an unacceptable risk that Mr Yates would commit a serious sexual offence unless a continuing detention order is made, I must make such an order. It is therefore appropriate to first address that question.
[13] Section 23(2) of the Act.
For the reasons which I gave last year,[14] I was not then satisfied that a continuing detention order was necessary to prevent an unacceptable risk that Mr Yates would commit a serious sexual offence. Rather, for those reasons, I formed the view that the risk of Mr Yates committing such an offence would be acceptable if he was released into the community under the stringent conditions attached to a supervision order. The critical question which I must now address is whether the events which have transpired since then should cause me to change that view.

Mr Yates' relationship with his partner

[14] Director of Public Prosecutions v Yates [No 3] [2016] WASC 213.

Consistently with Dr Brett's evidence, which I accepted, in my assessment of the risk of Mr Yates committing another serious sexual offence, I placed significant weight upon what I expected to be the beneficial impact of his relationship with his partner, including his access to stable accommodation through that relationship. Regrettably, that expectation did not eventuate. To the contrary, instead of Mr Yates' partner providing a beneficial source of stability, support and assistance, her deteriorating mental and physical health became the source of instability and stress. Instead of her providing support to Mr Yates, he was required to provide very considerable support to her in relation to the daily necessities of life. The accommodation which she was able to provide was unhygienic and unsatisfactory in many respects, and her tenancy was ultimately terminated by the accommodation provider after Mr Yates had been returned to custody.
So, in short, the benefits which I expected to flow from Mr Yates' relationship with his partner, in terms of reducing the risk of him reoffending, did not materialise and are no longer available.

Alcohol and drug use

Again, consistently with Dr Brett's evidence, in my assessment of the risk of Mr Yates reoffending, I placed, and continue to place, considerable significance upon the established connection between alcohol and drug use and his previous sexual offending behaviour. In that context it is significant that three of the contraventions of the supervision order established by the evidence involve the use of illicit substances, being both methamphetamine and cannabis. Notwithstanding a long history of substance abuse, Mr Yates does not appear to have previously resorted to methamphetamine, and its use on at least two occasions while he was in the community is obviously a very serious source of concern. As Dr Brett observed, methamphetamine can both increase sexual drive and disinhibit behaviour, both of which obviously increase the risk of sexual offending. Although cannabis does disinhibit behaviour, and has been associated with Mr Yates' sexual offending in the past, if anything it is known to decrease, rather than increase sexual drive. Mr Yates' use of methamphetamine is a very troubling development for these reasons.
It is also of concern that Mr Yates persisted in the use of illicit substances despite being regularly directed to undertake urine tests, which he must have known would reveal his use of those substances.
On the other hand, Mr Yates has explained his resort to those substances by reference to the exceptional stresses to which he was subjected, and each of Dr Brett, Dr Borg and Mr Summerton appear to have accepted that explanation. In those circumstances there is no reason for me to doubt it.
Each of the persons to whom I have referred has also accepted that prior to succumbing to the stress of the circumstances in which he found himself, Mr Yates was able to resist the temptation of alcohol and illicit substances that were offered to him on a number of occasions. Mr Summerton has also reported that Mr Yates has developed an appreciation of the connection between alcohol and drug use and his previous offending behaviour.
It is also of significance that on the three occasions upon which it is clear that Mr Yates used illicit substances, that use did not precipitate any form of offending sexual behaviour. By contrast, on the previous occasions Mr Yates has been released from custody, his resort to alcohol and drugs very shortly after his release had an obvious and direct connection with his sexual offending behaviour.

Other factors

A number of other factors bear upon my assessment of the impact which the failure of Mr Yates' relationship with his partner and his resort to illicit drugs have upon the risk of him committing another serious sexual offence. Prominent in those factors is the fact that all concerned consider that, apart from his resort to illicit drugs, Mr Yates did very well under the terms of his supervision order in extraordinarily difficult circumstances. He maintained all his appointments with Mr Summerton and with his other counsellors, apart from one occasion when he forgot an appointment as a result of his partner being hospitalised the night before. He was developing the skills required to live in a metropolitan environment, resisting offers of alcohol and illicit drugs (until he eventually succumbed) and drawing upon the support services available to him as required. In those circumstances, each of Dr Brett and Dr Borg expressed the view, which I accept, that Mr Yates' failure to comply with the conditions of his supervision order in the extraordinarily difficult circumstances in which he found himself does not lead to the conclusion that he is likely to fail to comply in more appropriate circumstances.
As the witnesses noted, but for Mr Yates' resort to illicit drug use, there were many positive signs associated with his return to the community, including his painting and his positive engagement with all those responsible for his supervision.
In those circumstances, I conclude that Mr Yates' resort to illicit drugs was caused by the extremely difficult circumstances in which he found himself as a result of the poor physical and mental health of his partner, and the entirely unsatisfactory accommodation in which they were living. The evidence generally sustains the conclusion that while Mr Yates may well have committed some of the minor contraventions associated with his adjustment to life in a metropolitan environment, he would not have committed the contraventions related to illicit drug use if he had not been subjected to the stress of living with, and caring for, an increasingly erratic and unwell woman. It is unlikely that Mr Yates would be exposed to stress of that degree if again released under the terms of a supervision order. Accordingly, I conclude that while the prospect of minor contraventions of the extraordinarily stringent conditions of the supervision order which I imposed cannot be excluded, it is more likely than not that Mr Yates will substantially comply with the significant conditions imposed by that order if released into more appropriate circumstances than those which pertained to his last release into the community.
For these reasons I am not satisfied that there is an unacceptable risk that Mr Yates would commit a serious sexual offence if a continuing detention order is not made. Rather, I am satisfied that the risk of Mr Yates committing such an offence will be reduced to an acceptable level if he is released under the terms of the supervision order which I previously made, if amended and extended in the terms discussed below.

The amendment and extension of the supervision order

I respectfully agree with Dr Brett that it is appropriate to 'start the clock running again' in relation to the supervision order, given that there was, as he put it, a 'false start' to Mr Yates' reintegration into the community, by reason of matters beyond his control and which were not anticipated. Accordingly, I will direct that the supervision order be extended to a period of five years commencing on the date upon which Mr Yates is released into the community.
Previous conditions of the supervision order also related to the maintenance of Mr Yates' relationship with his partner. Clearly the order must be amended to delete those conditions. It is also necessary to amend the order to include appropriate conditions with respect to the accommodation which has been found for him. The amended form of the supervision order is attached to these reasons as an appendix, redacted to avoid publishing information which could impede Mr Yates' reintegration into the community. For that reason I will make an order suppressing publication of the number, street and suburb of the accommodation to which Mr Yates is to be released. Counsel for the Director has also moved for amendments to other conditions which are not contentious, and the conditions will be amended in the terms sought.
There is, however, a contentious issue as to whether I should continue the order which I made pursuant to s 18(3)(b) of the Act directing that the photograph of Mr Yates and the locality in which he resides were not to be published under s 85G of the Community Protection (Offender Reporting) Act 2004 (WA) (the Offender Reporting Act). Counsel for the Director submits that the order which I previously made was motivated in large part by the particular accommodation arrangements which were then in place for Mr Yates, which centred upon accommodation with his then partner. She submits that as those arrangements have now changed, there is nothing to distinguish Mr Yates' circumstances from the circumstances of any other person released under a supervision order.
On the other hand, counsel for Mr Yates submits, correctly, that accommodation for people released on supervision orders under the Act is scarce, and that if the public becomes aware that the accommodation to which Mr Yates is to be released is being used to house persons released under the Act, public reaction is likely to preclude use of that accommodation for that purpose in the future. The question which that submission poses is whether there will be a real risk that use of the accommodation which is to be provided to Mr Yates will be compromised unless I continue the order prohibiting publication of his photograph and the locality in which he is to reside.
I have reviewed the prior decisions on this topic, helpfully provided by counsel for Mr Yates. In Director of Public Prosecutions (WA) v Hart [No 3][15] and Director of Public Prosecutions (WA) v Brown [No 5],[16] McKechnie J declined to make orders of the kind now sought on Mr Yates' behalf, giving significant weight to the principle of open justice and the interest which members of the community have in access to the information which the legislature has decided should be made available under s 85G of the Offender Reporting Act. On the other hand, in Director of Public Prosecutions (WA) v MJD [No 2][17] and Director of Public Prosecutions (WA) v Stephenson,[18] Mitchell J and Allanson J (respectively) made orders pursuant to s 18(3)(b). In each of those cases the factors which led to the making of the orders were psychiatric evidence to the effect that the risk of reoffending would be increased by publication of the relevant information, and the fact that publication of the information was unlikely to enhance community safety because each of the offenders had shown no propensity to offend against strangers.
[15] Director of Public Prosecutions (WA) v Hart [No 3] [2010] WASC 253.
[16] Director of Public Prosecutions (WA) v Brown [No 5] [2012] WASC 276.
[17] Director of Public Prosecutions (WA) v MJD [No 2] [2015] WASC 346.
[18] Director of Public Prosecutions (WA) v Stephenson [2015] WASC 496.

Neither of the factors which led to the making of non‑publication orders in MJD [No 2] and Stephenson are present in this case. There is no evidence to the effect that publication of information pursuant to s 85G of the Offender Reporting Act would increase the risk of Mr Yates reoffending. Further, the offences previously committed by Mr Yates have been opportunistic and were committed against victims who, although not strangers, in some cases had only been known to Mr Yates for a brief period.
Nonetheless, if I were satisfied that publication of a photograph of Mr Yates and the locality in which he resides would create an unacceptable risk of the compromise of the accommodation with which he is to be provided, I would make the order sought, because it is in the interests of justice for Mr Yates to be provided with accommodation which will facilitate his reintegration into the community. It is therefore necessary to assess that risk. Under the Offender Reporting Act, information with respect to persons released on supervision orders under the Act is only made available to those who make a specific inquiry, online, and who identify themselves and the address at which they reside (usually using a driver's licence as an identifier). Anybody requesting information is required to undertake that they will not create, promote or increase animosity toward or harass any person identified on the site, and that they will not publish, distribute or display any photographs or personal information provided from that site without prior written approval from the Minister for Police.
The identity of the inquirer is verified and checked before any information is provided. The information is provided by email to the inquirer. Any photograph provided in response to an inquiry is watermarked with the name of the inquirer, and information relating to an offender will only be provided if that offender is residing within the same 'locality' as the inquirer. In this context, 'locality' does not mean suburb, but generally extends to a cluster of suburbs adjacent to the suburb in which the inquirer resides. Accordingly, a positive response to an inquiry will reveal that the person in respect of whom information is provided lives within a cluster of suburbs, but will not identify the particular suburb, or the address, at which the person resides.
Taking all these factors into account, I do not consider that the provision of information of the kind I have described in relation to Mr Yates would create an unacceptable risk of the compromise of the accommodation with which he is to be provided. As there are no other factors which would support the making of an order prohibiting publication of that information in this case, I will delete the order which I previously made pursuant to s 18(3)(b) from the terms of the supervision order.
For these reasons, the Director's application for orders based upon Mr Yates' contravention of the supervision order will be resolved by my order amending and extending that order.

Sentencing for the offences committed by Mr Yates

It is also necessary to sentence Mr Yates for the three offences of contravening the supervision order which are to be dealt with in this court. As a consequence of those offences, Mr Yates was rearrested and has been in custody for ten months. In my view, the time spent by Mr Yates in custody constitutes sufficient punishment for the offences which he committed, taking into account his pleas of guilty to those offences. Counsel for the Director did not disagree with that proposition. Because the offences were committed on separate occasions and could not be regarded as components of a single course of conduct, it is appropriate to impose separate penalties in respect of each offence. However, the totality principle requires that the cumulative sentence imposed should not be disproportionate to the criminality involved in the offences as a whole. A simple way of achieving an appropriate disposition of these offences is to impose a sentence of 3 months imprisonment on each offence, such terms to be cumulative, and backdated so as to take effect from the date upon which Mr Yates was taken into custody - namely, 21 October 2016. The net result of those sentences is that Mr Yates has completed their service by the time he has spent in custody since his arrest which is, in all the circumstances, appropriate.

IN THE SUPREME COURT OF WESTERN AUSTRALIA

DSO 3 of 2013

IN THE MATTER of the Dangerous Sexual Offenders Act 2006 (WA)

DIRECTOR OF PUBLIC PROSECUTIONS
FOR WESTERN AUSTRALIA Applicant

-and-

NIGEL YATES Respondent

_____________________________________________________________________

SUPERVISION ORDER MADE BY
THE HONOURABLE CHIEF JUSTICE MARTIN ON 28 AUGUST 2017

_____________________________________________________________________

UPON the application of the Applicant dated 24 October 2016, and the Court having found that the Respondent contravened conditions of the supervision order made on 1 August 2016, pursuant to section 23(1)(a) of the Dangerous Sexual Offenders Act 2006 (WA) (‘Act’), the Court orders that:

1. The detention order made on 24 October 2016 pursuant to section 24A(2) of the Act be rescinded with effect from 29 August 2017.
2. The supervision order made on 1 August 2016 be amended so as to contain the conditions set out in the Schedule to this order.
3. The period for which the Respondent is to be subject to the supervision order be extended, so that the Respondent is subject to the supervision order for a period of 5 years from 29 August 2017.

SCHEDULE

THE RESPONDENT must:

STANDARD CONDITIONS REQUIRED BY THE ACT

Report to a Community Corrections Officer at the place and within the time stated in the order and advise the officer of the person’s current name and address.
Report to and receive visits from, a Community Corrections Officer as directed by the court.

Notify a Community Corrections Officer of every change of the person’s name, place of residence, or place of employment at least 2 business days before the change happens.

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 19A or 19B).

Not leave, or stay out of the State of Western Australia without the permission of a Community Corrections Officer.
Not commit a sexual offence as defined in the Evidence Act 1906 section 36A during the period of the Order.

Be subject to electronic monitoring under section 19A.

ADDITIONAL CONDITIONS

Residence

Take up residence at [X] 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.

Not leave or remain out of the State of Western Australia without the permission of a Manager of the Department of Corrective Services and, if so permitted, abide by all conditions of such permission whilst absent from the State.

Keep a permanent place of residence approved by a CCO assigned to you.

Unless otherwise directed by a CCO, any overnight stays, defined as between 7pm and 7am, at your permanent place of residence by a third party, must be approved in advance by a CCO.

Reporting to a CCO and supervision by a CCO

Report to a CCO at Central West Metropolitan Adult Community Corrections Centre, Level 2, 30 Moore Street, East Perth, WA within normal business hours on the day of release from custody under this order, and thereupon advise the CCO of your current name and address.
Be under the supervision of a CCO, and comply with the lawful orders and directions of a CCO.

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.

Notify the CCO of any change of your name at least 2 days before the change is due to happen.

Not commence or change employment without the prior approval of the CCO.

Attendance at programs or treatment

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

Reporting to WA Police

Report to the Officer-in-Charge of the Sex Offender Management Squad located at the ‘Hatch Building’ Ground Floor, 144 Stirling Street, Perth WA 6000 within 48 hours of your release from custody and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the Sex Offender Management Squad or his/her delegate.
Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004.

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.

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 used by you.

Disclosure/Exchange of Information

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

Restrictions on contact with Victims

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 Corrective Services.
Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times.

Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997.

Criminal conduct

Not commit any sexual offence, as defined in the Evidence Act 1906 section 36A.
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.

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

Not possess, consume or use any prohibited drugs or substances including, but not limited to, cannabis.

Curfew

Be subject to a curfew, pursuant to section 19B of the Dangerous Sexual Offenders Act 2006, such that you are to remain at and not leave your approved address as directed by a CCO from time to time.
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.

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.

Medications/Mental Health

Attend any medical practitioner, psychologist, psychiatrist or counsellor as directed by the supervising CCO.
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 Corrective Services.

Prevention of high-risk situations

Unless compliance with this condition is waived in advance by a CCO, not hitch-hike, nor accept lifts in vehicles from any female who is unaware of your offending history, unless the identity of such person is approved in advance by the CCO.
Not allow any female hitchhiker to enter any vehicle under your control.

Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO.

Not possess, consume or use alcohol.
Not to possess, consume or inhale any volatile substance.

Attend for, and submit to, urinalysis or other testing for alcohol or 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.
Not remain in the presence of females who are affected by alcohol, unless the identity of such person is approved in advance by the CCO.
Not remain in the presence of any person affected by a prohibited drug.

Not 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.
Have no contact with any child older than 11 or younger than 17 years, whether such contact is in person, in writing, by telephone or by electronic means, unless
(a)the contact is authorised in advance by the CCO and such contact is supervised at all times by an adult approved in advance by the CCO;
(b)the contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction, and another adult is present.
(‘Contact’ under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication)

Where any unsupervised contact with a child older than 11 or younger than 17 years is initiated by the child, unless the contact is permitted under the condition immediately above, you must withdraw immediately from the presence of the child.

Provide details of any contact with a child older than 11 or younger than 17 years both to your CCO and to the Police on the next occasion you report to that person or agency.

Report immediately to your CCO the formation of any domestic, romantic, sexual or otherwise intimate relationship by you with a person who has children older than 11 or younger than 17 years in their care either full time or part time.

Not form any domestic relationship with a person who has children older than 11 or younger than 17 years in their care either full time or part time.

Make full disclosure regarding your past offending and the current order to anyone with whom you commence a domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.

Upon request, permit a CCO or Police to access any computer, mobile phone or other device capable of storing digital data, and which device is owned or used by you, for the purpose of ascertaining your activities on that device, and provide your CCO or Police with the password for that device to enable such inspections to take place.

BY THE COURT

THE HONOURABLE CHIEF JUSTICE MARTIN

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

Signed by the Respondent _____________________________

Nigel Yates

In the presence of: _____________________________

Name and address: _____________________________

_____________________________
_____________________________

Date: _____________________________