State of Western Australia v Roffey [No 2]
[2024] WASC 220
•18 JUNE 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- ROFFEY [No 2] [2024] WASC 220
CORAM: STRK J
HEARD: 10 JUNE 2024
DELIVERED : 10 JUNE 2024
PUBLISHED : 18 JUNE 2024
FILE NO/S: SO 11 of 2023
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
KENNETH MARTIN JAMES ROFFEY
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 (WA) - Application for a restriction order - Whether the risk the respondent will commit a serious offence is unacceptable - Whether it is necessary to make a restriction order to ensure adequate protection against a risk that the respondent will commit a serious offence - Whether the risk of reoffending may be adequately managed in the community by the imposition of a supervision order - Appropriate duration of any supervision order - Turns on own facts
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Result:
Supervision order made
Category: B
Representation:
Counsel:
| Applicant | : | DS McDonnell |
| Respondent | : | T Hager |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Geoffrey Miller Chambers |
Cases referred to in decision:
Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 52 CLR 38
Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212
Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Italiano v The State of Western Australia [2009] WASCA 116
Roffey v The State of Western Australia [2007] WASCA 246
The State of Western Australia v ACJ [2021] WASC 219
The State of Western Australia v Bellamy [2013] WASC 467
The State of Western Australia v D'Rozario [No 3] [2021] WASC 412
The State of Western Australia v Garlett [2021] WASC 387
The State of Western Australia v Hill [No 2] [2024] WASC 70
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v MAM [2022] WASC 100
The State of Western Australia v Narrier [No 2] [2022] WASC 49
The State of Western Australia v Nelson [2021] WASC 460
The State of Western Australia v Roffey [2023] WASC 472
Western Australia v West [No 6] [2019] WASC 427
Western Australia v ZSJ [2020] WASC 330
Woods v Director of Public Prosecutions (WA) [2008] WASCA 188
Table of Contents
Introduction
Statutory framework and legal principles
Two evaluative judgments
Evidence
Antecedents and criminal history - s 7(3)(g)
Childhood
Education and employment
Relationships
Alcohol and substance abuse
Criminal record - serious offences and other relevant offences
Prison behaviour
Responses to supervision
Propensity to commit serious offences in the future - s 7(3)(c)
Whether or not there is any pattern of offending behaviour - s 7(3)(d)
Efforts to address offending behaviour and whether or not the participation in any rehabilitation program has had a positive effect - s 7(3)(e) and s 7(3)(f)
Expert reports and extent to which the respondent cooperated with examinations - s 7(3)(a)
Dr Wynn Owen's psychiatric report and evidence
Dr Yewers' psychological report and evidence
Overall assessment of expert evidence
Psychological and other assessments - s 7(3)(b)
Ms Cashmore's proposed treatment options report
Ms Czechowski's community supervision assessment
Past reports
Any other relevant matter - s 7(3)(j)
Denial of parole
Analysis and findings
Is the risk that the respondent will commit a serious offence unacceptable?
If the risk is found to be unacceptable, is it necessary to make a restriction order to ensure adequate community protection against a risk that the offender will commit a serious offence?
Continuing detention order or supervision order?
Duration of the order
Conclusion
Schedule A - Conditions imposed by an order made on 10 June 2024
STRK J:
Introduction
On 28 November 2023, the State of Western Australia applied for a restriction order under s 48 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act) in relation to the respondent. It was the State's position that it was necessary to make a restriction order under the HRSO Act in relation to the respondent to ensure adequate protection of the community against an unacceptable risk that the respondent will commit a serious offence.
The respondent is 39 years of age and has an extensive criminal history. His criminal history includes at least 49 serious offences, which include 24 counts of armed robbery in company; two counts of armed robbery; two counts of aggravated armed robbery; three counts of attempted armed robbery; one count of attempted robbery; 13 counts of deprivation of liberty; three counts of criminal damage by fire; and one count of an unlawful act with intent to harm (endangering life, health or safety of any person).[1]
[1] ts 25 (10 June 2024).
The respondent is currently serving an aggregate term of imprisonment of four years and one month, comprised of the following:
(a)three years and six months' imprisonment imposed in the Perth District Court on 12 December 2022 for one count of aggravated armed robbery contrary to s 392(c) and (d) of the Criminal Code; and
(b)seven months' imprisonment imposed in the Perth Magistrates Court on 6 January 2023 comprised of:
(i)seven months' imprisonment for two counts of aggravated burglary and commit contrary to s 401(2)(ba) of the Criminal Code (to be served concurrently);
(ii)two months' imprisonment for one count of stealing a motor vehicle contrary to s 378A of the Criminal Code (to be served concurrently); and
(iii)no sentence for two counts of stealing pursuant to s 378 of the Criminal Code.
The respondent's current sentence ends on 27 June 2024. He has spent about 20 years, that is, most of his adult life, incarcerated. The 'index' offending for the purposes of this application is the offence of aggravated armed robbery committed on 27 May 2020, for which the respondent was convicted on 12 December 2022.
The application was listed for a preliminary hearing on 12 December 2023, in circumstances where the Prisoners Review Board had granted the respondent's request for a reconsideration of parole and had set a consideration date of 15 December 2023.
At the preliminary hearing it was established that there were reasonable grounds for then believing that a later court might find the respondent to be a high risk serious offender within the meaning of the HRSO Act.
Having so found and for reasons then delivered, it was ordered that the respondent be detained in custody pursuant to s 46(2)(c)(i) of the HRSO Act until further order of the court, or until the final determination of the restriction order application, whichever was the sooner: The State of Western Australia v Roffey [2023] WASC 472. Programming orders were also made under s 46(2)(a) and s 74 of the HRSO Act requiring the respondent to undergo examinations by two qualified experts, namely one psychiatrist, Dr Peter Wynn Owen, and one psychologist, Dr Tara Yewers, for the purposes of preparing reports. Such orders were made to facilitate the preparation of reports to be used at the hearing of the restriction order application in circumstances where the court must have regard to such reports in determining the State's application by operation of s 7(3)(a) of the HRSO Act.
The application was set down for hearing on 2 May 2024. By reason of a network outage, it was relisted on 10 June 2024.
At the hearing of the application, it was the State's position that in the event that the court was satisfied that the respondent was a high risk serious offender within the meaning of the HRSO Act, it was a matter for the court as to what order to subsequently make. That said, in all of the circumstances, the State respectfully submitted that the risk identified was able to be managed within the community by placing the respondent on a supervision order pursuant to s 48(1)(b) of the HRSO Act.[2]
[2] State's submissions, pars 4 and 14; ts 27 - 28, 53 (10 June 2024).
The respondent was represented by counsel at the hearing of the application. It was accepted on behalf of the respondent that it was open for the court to find him to be a high risk serious offender, and the making of a restriction order was not opposed.[3] Counsel for the respondent further submitted that if the court were to find the respondent to be a high risk serious offender, then the appropriate outcome ought be the making of a supervision order under s 48(1)(b) of the HRSO Act, and not a continuing detention order.[4]
[3] ts 29 - 30, 58 (10 June 2024).
[4] ts 58 (10 June 2024).
The responsibility for deciding whether or not the offender is a high risk serious offender (formerly a serious danger to the community) as defined, and if so what order should be made, is that of the judge alone.[5] For the reasons that follow, I was satisfied that it was necessary to make a restriction order to ensure adequate protection of the community against the unacceptable risk that the respondent would commit a serious offence. Further, I determined that it was appropriate that the respondent be subject to supervision for five years, and required to comply with conditions in addition to those required by the HRSO Act, imposed so as to guard against the risk that the respondent poses to the community. A supervision order was made which incorporated the conditions reproduced at sch A to these reasons. The respondent's approved address has been redacted.
[5] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [62], which concerned an application under the now repealed Dangerous Sexual Offenders Act 2006 (WA).
My reasons were delivered extemporaneously on 10 June 2024, and as was then foreshadowed, have been edited from the transcript to include a comprehensive overview of the (not controversial) statutory framework and applicable principles, complete references, an overview of the evidence, and to correct infelicities of language.
Statutory framework and legal principles
The objects of the HRSO Act as outlined in s 8 are to provide for:
(a)the detention in custody or the supervision of high risk serious offenders to ensure adequate protection of the community and of victims of serious offences; and
(b)the continuing control, care or treatment of high risk serious offenders.
Section 7(1) of the HRSO Act provides that a 'high risk serious offender' is a person in relation to whom 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 so as to ensure adequate protection of the community against the unacceptable risk that the person will commit a serious offence.
In the HRSO Act, a 'restriction order' means a continuing detention order or a supervision order.[6] A continuing detention order is an order that the offender be detained in custody for an indefinite term for control, care, or treatment. A supervision order is an order that the offender, when not in custody, is to be subject to conditions in accordance with s 30 of the HRSO Act.
[6] HRSO Act s 3.
A 'serious offence' is an offence that is specified in sch 1 div 1 of the HRSO Act, or is specified in sch 1 div 2 and is committed in circumstances indicated in relation to that offence in div 2.[7] Relevantly, a 'serious offence' within the meaning of the HRSO Act includes aggravated armed robbery, aggravated robbery, attempted armed robbery, attempted robbery, depravation of liberty, criminal damage by fire and an unlawful act with intent to harm (endangering life, health or safety of another person).[8]
[7] HRSO Act s 3, s 5(1) and s 5(2).
[8] HRSO Act sch 1 div 1 sub-div 3, items 31, 34 and 15; sch 1 div 2 sub‑div 1, item 2; and s 5(3).
The State bears the onus of satisfying the court that the respondent is a high risk serious offender, and the court must be satisfied of the same by acceptable and cogent evidence, and to a high degree of probability.[9]
[9] HRSO Act s 7(1) and s 7(2).
The court, in considering whether it is satisfied of the matters in s 7(1), must have regard to the following matters listed in s 7(3) of the HRSO Act:
(a)any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section;
(b)any other medical, psychiatric, psychological, or other assessment relating to the offender;
(c)information indicating whether or not the offender has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by the offender;
(e)any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;
(f)whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;
(g)the offender's antecedents and criminal record;
(h)the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;
(i)the need to protect members of the community from that risk; and
(j)any other relevant matter.
The matters set out in pars (h) and (i) above are conclusions or findings based on s 7(3)(a) ‑ (g) and (j) of the HRSO Act.
By reason of the definition of 'high risk serious offender' contained in s 7(1) of the HRSO Act, before the court can find that the offender is a high risk serious offender, it must be satisfied of the matters referred to in s 7(1) 'by acceptable and cogent evidence and to a high degree of probability'.[10] The 'high degree of probability' standard is a higher standard than the standard of the balance of probabilities but is a lesser standard than the standard of beyond reasonable doubt. The standard is otherwise incapable of further definition.[11]
[10] As was observed in The State of Western Australia v Hill[No 2] [2024] WASC 70 [23].
[11] The State of Western Australia v Hill[No 2] [23], citing Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307, 28; and The State of Western Australia v West [No 6] [2019] WASC 427 [24]; The State of Western Australia v ZSJ [2020] WASC 330 [47].
The requirement is not that the risk that the offender will commit a serious offence must be at some high percentage of probability. A risk that the offender will commit a serious offence may be less than 50% yet still be an unacceptable risk.[12] It is the necessity to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence that must be proved by acceptable and cogent evidence and to a high degree of probability.[13]
[12] The State of Western Australia v Hill [No 2] [24], citing The State of Western Australia v West [No 6] [24]; The State of Western Australia v ZSJ [47].
[13] The State of Western Australia v Hill[No 2] [24].
In considering whether it is satisfied as required by s 7(1), the court must disregard the possibility that the respondent might temporarily be prevented from committing a serious offence by imprisonment, remand in custody, or the imposition of bail conditions.[14]
[14] HRSO Act s 7(4).
Section 48(1) of the HRSO Act provides that if the court hearing a restriction order application finds that the offender is a high risk serious offender, the court must make in relation to the offender a continuing detention order, or a supervision order (except as provided in s 29).[15] The court is not invested with a residual discretion to decline to make a restriction order.[16] In deciding whether to make a detention order or a supervision order, the paramount consideration is the need to ensure adequate protection of the community.[17]
[15] HRSO Act s 29 is reproduced at [26] below.
[16] The State of Western Australia v Garlett [2021] WASC 387 [72].
[17] HRSO Act s 48(2).
The powers conferred by the HRSO Act, like the now‑repealed Dangerous Sexual Offenders Act 2006 (WA) (DSO Act), are not to be exercised for the purpose of imposing additional punishment on the offender, but rather for the ultimate purpose of protecting the community.[18] This requires the court to choose the order that is the least invasive or destructive of the offender's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community.[19] The requirement in s 48(2) of the HRSO Act does not exclude other considerations.[20]
[18] HRSO Act s 48(2).
[19] The State of Western Australia v Latimer [2006] WASC 235 [49].
[20] The State of Western Australia v ACJ [2021] WASC 219 [32].
The HRSO Act, like the DSO Act, does not require that there be no risk of reoffending. Rather, the issue is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community.[21] The use of the word 'adequate' indicates that a qualitative assessment is required. It cannot simply be assumed that the most assured preventative measure is detention and, therefore, the protection of the community will always favour such an order.[22]
[21] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33], citing Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [57].
[22] The State of Western Australia v ACJ [32], citing Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14].
By s 48(1)(b) of the HRSO Act, the power of the court to make a supervision order is subject to s 29, which provides as follows:
29.Limitation on power to make or amend supervision order
(1) A court cannot make, affirm or amend a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made, affirmed or amended.
(2) The onus of proof as to the matter described in subsection (1) is on the offender.
(3)This section does not apply to the making of an interim supervision order.
The term 'standard conditions' in relation to a supervision order is defined in s 3 of the HRSO Act to mean a condition that under s 30(2) of the HRSO Act must be included in the order. Section 30(2) of the HRSO Act specifies seven conditions that must be included in a supervision order.
Two evaluative judgments
Section 7(1) of the HRSO Act was considered by Corboy J in The State of Western Australia v Garlett. His Honour preferred an interpretation of the section (read with s 48) that requires the court to assess two separate matters.[23] First, whether a risk that an offender will commit a serious offence is unacceptable; and secondly, if the risk is found to be unacceptable, whether it is necessary to make a restriction order to ensure adequate community protection against a risk that the offender will commit a serious offence. That is, s 7(1) involves two evaluative judgments, and 'necessity' and 'adequacy' involve evaluative assessments.
[23] See also The State of Western Australia v D'Rozario [No 3] [2021] WASC 412 [18] - [22]; The State of Western Australia v Nelson [2021] WASC 460 [12] - [15]; and The State of Western Australia v MAM [2022] WASC 100 [18].
The word 'unacceptable' might carry a meaning similar to that suggested by French CJ in Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 52 CLR 38, that is, a risk that is not trivial or transient.[24] Further, the factors identified by Wheeler JA in Director of Public Prosecutions (WA) v Williams, and Buss JA in Italiano v The State of Western Australia [2009] WASCA 116, and the balancing exercise to which their Honours referred, would be most relevant to the determination of whether it was necessary to make a restriction order to adequately protect the community.[25]
[24] The State of Western Australia v Garlett [136(b)], [126].
[25] The State of Western Australia v Garlett [136(b)].
I have proceeded on the basis that these separate matters need to be demonstrated 'by acceptable and cogent evidence and to a high degree of probability'.[26] The expression 'high degree of probability' connotes a standard that is more than the civil standard but less than the criminal standard of proof.[27]
[26] HRSO Act s 7(1). See also HRSO Act s 82(2).
[27] Director of Public Prosecutions (WA) v GTR [28].
The effect of this distinction, as Corboy J observed in The State of Western Australia v Garlett, is to make clear the possibility that the court might find that it was not necessary to make a restriction order to adequately protect the community notwithstanding that it has found that the risk of future offending was unacceptable.[28] As to such possibility, Quinlan CJ observed:[29]
While no doubt such a situation would be rare, it is possible to envisage circumstances in which that might be the case. For example, it may be that, in the circumstances of a particular case, other external restraints on an offender (such as a post-sentence supervision order under the Sentence Administration Act 2003 (WA)) may provide adequate protection of the community against the unacceptable risk that the offender will commit a serious offence (such that a restriction order is not 'necessary').
[28] The State of Western Australia v Garlett [136(d)], as noted by Quinlan CJ in The State of Western Australia v D'Rozario [No 3] [21].
[29] The State of Western Australia v D'Rozario [No 3] [21].
As Corboy J observed in The State of Western Australia v Garlett, s 7(1) recognises that the need to ensure adequate protection for the community should form part of the court's determination of whether the offender is a high risk serious offender (the first step in making a restriction order), and not merely the paramount consideration in deciding what form of order should be made in respect of an offender who has been found to be a high risk serious offender (the second step).[30]
[30] The State of Western Australia v Garlett [136(d)], cited with approval by Quinlan CJ in The State of Western Australia v D'Rozario [No 3] [22].
Evidence
At the hearing of this application, I received into evidence without objection a book of materials in five volumes. The first, second, third and fourth were dated 12 March 2024, and the fifth was dated 18 April 2024.[31]
[31] Exhibits 1 ‑ 5.
The first volume contained a copy of the respondent's Western Australian criminal record; a chronology of offending prepared by the State Solicitor's Office dated 3 November 2023; and various Department of Justice prison records including the first part of an 'Incidents History - Prisoner Report' concerning the respondent.
The second volume contained the second part of the Department of Justice's 'Incidents - Prisoner Report'.
The third volume contained various Department of Justice prison records relating to the respondent's placement history; a copy of a sentence summary from Casuarina Prison dated 6 March 2024; and a copy of three individual management plans dated 15 October 2019, 30 June 2023 and 24 January 2024, respectively. The third volume also contained a copy of the interim detention order made in this proceeding on 12 December 2023, and the reasons for decision delivered on 12 December 2023 and published on 13 December 2023.[32] The State did not rely upon the various medical records included in the third volume at items 13 to 31.[33]
[32] The State of Western Australia v Roffey.
[33] State's submissions par 7; ts 28 (10 June 2024).
The fourth volume contained documents which concern the respondent's offending history for offences which constitute 'serious offences' under the HRSO Act, including indictments, statements of material facts, transcripts, trial and sentencing transcripts, and a psychiatric report of Dr Alexander Van Hattem dated 5 December 2022; documents which concern the respondent's offending history for offences which do not constitute 'serious offences' under the HRSO Act, including a prosecution notice, a statement of material facts and a sentencing transcript; and various reports including a Pathways Program completion report dated 14 May 2012, a Think First program completion report dated 2 August 2012, a Violent Offender treatment program non-completion report dated 24 February 2016, and a Violent Offender treatment program completion report dated 20 November 2017. The fourth volume also contained post‑sentence reports and documents including a copy of the Victim‑Offender Mediation Unit report dated 4 January 2023, the parole assessment of Strom Stuart dated 16 January 2023, a post‑sentence supervision order report dated 23 August 2023, a community corrections officer's review report dated 27 November 2023, a Pathways Program completion report dated 6 December 2023, and the Prisoners Review Board's decision dated 15 December 2023.
The fifth volume contained a copy of three transcripts of video record of police interview held on 13 July 2005, 26 July 2005 and 2 August 2005, respectively; various Department of Justice records including a video record of the police interview held on 24 April 2003, pre‑sentence reports, a video record of the police interview held on 30 January 2006, and a treatment assessment report; together with a copy of the reports prepared for the purpose of this hearing.
At the hearing of the State's application, four witnesses gave oral evidence and their reports were received into evidence (which reports were incorporated in the fifth volume of the book of materials). They were as follows:
(a)Dr Peter Wynn Owen, author of the psychiatric report dated 16 April 2024;
(b)Dr Tara Yewers, author of the psychological report dated 21 March 2024;
(c)Emma Cashmore, author of the proposed treatment options report dated 17 April 2024; and
(d)Katrina Czechowski, author of the community supervision assessment dated 9 April 2024.
The reports provided by Dr Wynn Owen and Dr Yewers stood as the evidence in chief of the respective experts in accordance with order 8 of the orders made on 12 December 2023, as did the report of Ms Cashmore and the assessment of Mr Czechowski. Counsel for the State was also granted leave to adduce further evidence in chief from the two experts, which leave was granted unopposed.[34]
[34] ts 26 (10 June 2024).
In advance of the hearing, counsel for the State filed a written outline of submissions dated 24 April 2024, together with a minute of proposed supervision order.
During the course of the hearing, the respondent did not give evidence and no documentary evidence was tendered on behalf of the respondent. The findings made were therefore grounded upon the documentary evidence, including the reports received, the evidence of the four witnesses called on behalf of the State, and the cross‑examination of the State's witnesses.
Antecedents and criminal history - s 7(3)(g)
I turn to the matters relevant to determining whether or not the respondent is a high risk serious offender pursuant to s 7 of the HRSO Act.
In deciding whether a person is a high risk serious offender, the court must have regard to the person's antecedents and criminal record. That requires that all prior offences be considered, to the extent that such offences are relevant to the question of whether the person is a high risk serious offender within the meaning of the HRSO Act (whether they be serious offences or not). It also requires consideration of the person's antecedents, including the context in which the past offences were committed.[35]
[35] As observed by McGrath J in The State of Western Australia v Nelson [33].
I proceeded cognisant that the criminal record and antecedents were relevant in and of themselves, but were also relevant to whether the person had a propensity to commit serious offences in the future. Further, the criminal record and antecedents were relevant as to whether there was any pattern of offending behaviour.[36] It was therefore convenient to first consider the respondent's criminal record and antecedents as required by s 7(3)(g).
[36] Again, as observed by McGrath J in The State of Western Australia v Nelson [34], referring to the HRSO Act s 7(3)(c) and s 7(3)(d).
Although s 7(3)(g) of the HRSO Act provides that a court must have regard to the offender's criminal record in deciding whether the person is a high risk serious offender, the mere fact that a person has committed previous offences does not necessarily mean that there is an unacceptable risk that they will commit a serious offence in the future if they are not subject to a continuing detention order or a supervision order. The relevance of a prior criminal record depends on the nature of the offences committed, the number of them and the period of time over which they were committed. Nonetheless, past behaviour is often a good indicator of future conduct.[37]
Childhood
[37] State of Western Australia v Hill [No 2] [30].
The respondent reported to Dr Wynn Owen that he is eldest of his parents' three children. The respondent reported to Dr Yewers that both parents were substance users, and that his father had used amphetamines and had drunk heavily on a daily basis. The respondent further reported that drugs were sold from the family home, there were frequently unsavoury visitors to the house, and guns had been kept on the premises.
As noted by Dr Wynn Owen, the respondent reported in 2020 to Dr van Hattem that his mother did not look after him as a result of her ongoing substance use. The respondent's mother reportedly did not have a history of paid employment.
The respondent's father was reportedly a member of an outlaw motorcycle gang for 25 years and had provided for the family through a variety of criminal activities. The respondent's father was in prison on a number of occasions, including when the respondent was between the age of eight and 11, at which time the respondent took responsibility for providing for the family through engaging in criminal activity. The respondent reported witnessing serious domestic violence between his parents, other adults in mass fights, and his father's extreme violence towards others.
As the respondent spent considerable time in his father's company, the respondent reflected that this resulted in him being exposed to situations involving guns, drugs and violence. The respondent informed Dr Yewers that his father was a co‑offender in many of his own criminal offences, and that his first crimes were committed with his father. The respondent informed Dr Yewers that his father had passed away suddenly in 2006.
The respondent denied experiencing any form of sexual abuse.
Dr Yewers recorded that the respondent described his current familial relationships as positive. While the respondent reported that his mother's drug use was now infrequent and that she was a stable and positive support for him, Dr Yewers noted that Department of Justice records indicated that the respondent had been detected as receiving drugs from his mother during a social visit in February 2023.
The respondent reported to Dr Yewers that he had supportive relationships with his brother and sister. The respondent stated that his brother was particularly a good role model because he had moved away from antisocial behaviour and had built a prosocial life.
Dr Wynn Owen recorded that the respondent presently maintained contact his sons, one of whom had previously shared a cell with the respondent.
Education and employment
The respondent completed years nine and 10 while he was in youth detention, but did not complete the year 10 certificate prior to release at the age of 18. The respondent was expelled on two occasions from high school.
The respondent has no history of paid employment while in the community. He supported himself via Centrelink payments and the proceeds of his crimes. However, the respondent reported that he has consistently worked during his time in custody. Dr Yewers noted that Department of Justice records indicated that the respondent was promoted to head cook in June 2023, was respectful in his dealings with staff, and had worked collegially with other prisoners. Dr Wynn Owen also noted that the respondent has had many roles while in prison and has completed a number of skills certificates while in custody.
As to employment upon release, the respondent did not have confirmed employment. Dr Yewers reported that the respondent had expressed the intention to obtain employment upon release; had identified an employment opportunity for construction work that could begin soon after release; and had indicated he may be able to work with his sister‑in‑law or his brother (both having expressed their willingness to assist the respondent in finding employment via their own workplaces).[38]
[38] ts 50 (10 June 2024).
I noted that Ms Czechowski had also recorded that the respondent was not able to provide contact details or an update as to the status of the construction work opportunity.
Relationships
The respondent has had no long-term relationships as an adult. He reported that he had been in a relationship that spanned four months when he was in the community in 2005. As an adolescent, he was in a relationship between the ages of 15 and 18, and has two sons from the relationship.
The respondent informed Dr Yewers that the most time he had spent with his youngest son was while they were both imprisoned, which he said was 'not right'. The respondent expressed his worry for his youngest son, stated that he had been counselling his son to cease his criminal behaviour, and that he hoped to set an example for his son by living a prosocial life.
As to his current friendships, Dr Yewers reported that the respondent had identified two prisoners that he considered to be close friends. One was a previous co-offender who will be in prison for some time, and the other has been released and had made changes to his behaviour. The respondent considered both persons would not exert pressure on him to resume his previous antisocial way of life.
Alcohol and substance abuse
The respondent has a long history of alcohol and drug use. The respondent stated that he first tried marijuana at the age of six, had started selling drugs from the age of 11, and had used cannabis regularly from the age of 13. The respondent stated that he had consumed alcohol for a year from the age of 12, but ceased regular use until late adolescence. Dr Yewers noted that the respondent had observed that his alcohol use had long caused him problems, that he was prone to fighting when intoxicated, and that he was once attacked when drunk.
The respondent reported that he first used amphetamines at the age of 14. The respondent also reported that he first used heroin at the age of 18, had used heroin during subsequent periods of release, and at times while in prison. The respondent reported that he had used an opioid while in prison regularly until he was prescribed methadone in 2023. As to his use of the opioid, the respondent remarked to Dr Yewers that it had become a crutch, helped him to cope during his long sentence, and had 'blocked everything out'. Further, the respondent remarked that he had used drugs in prison because he was bored, and the 'hustling' had kept him occupied all day.
The respondent commenced methadone maintenance treatment on about 26 April 2023.[39] The respondent reported that he was aware that methadone was still a drug, but the prescribed use of methadone meant that he had not been involved in any drug related transgressions or violations.
[39] Exhibit 5, page 2317, par 40 (Dr T Yewers' psychological report dated 21 March 2024); ts 48 (10 June 2024).
Dr Wynn Owen recorded that the respondent did not appear to blame intoxication for his decision to offend at the interview. Dr Wynn Owen noted with respect to the offences of 26 and 27 May 2020, the respondent's association with peers had led to him recommencing substance abuse, heroin and alcohol, and accompanied by antisocial peers, the respondent had committed those offences. Dr Wynn Owen further noted that with respect to the series of armed robbery offences that occurred from April to July 2005, the respondent had reported that he was living with his parents on release and they were 'using drugs and stealing'. The respondent reported that he had recommenced drug use within one or two days of release from prison, and that his actions were to continue to fund his drug use. The respondent also reported that he had been using amphetamines and had been drinking on the day of the 2003 offending.
Criminal record - serious offences and other relevant offences
The respondent has an extensive criminal history, with convictions recorded under the Criminal Code, the Road Traffic Act 1974 (WA), the Weapons Act 1999 (WA), and the Firearms Act 1973 (WA).
For the purpose of the restriction order hearing, the State prepared a chronology of the respondent's offending which it submitted fell within the meaning of a serious offence under the HRSO Act, and other offences the State submitted were relevant offences.[40] The chronology included the date and nature of each offence; a high level summary of the material facts for each offence; the date of outcome; and the outcome or sentence imposed.
[40] Exhibit 1, pages 8 - 24 (Chronology prepared by the State Solicitor's Office dated 3 November 2023).
At the hearing, the State also noted that the respondent had been convicted of attempted robbery and attempted armed robbery which were also serious offences.[41]
[41] ts 25 (10 June 2024).
No concern was raised on behalf of the respondent as to the accuracy or adequacy of information reproduced in the chronology.[42] In determining this application, I had regard to the primary documents reproduced in the book of materials concerning the respondent's offending, and to the State's chronology.
[42] ts 26 (10 June 2024).
As noted above, the respondent's criminal history included at least 49 serious offences, which included 24 counts of armed robbery in company. Offences were committed while armed from time to time with knives, a baseball bat, a machete, a replica handgun, a brick, a metal pipe, and a handgun, among other things.
While a prisoner at Casuarina in 2006, the respondent followed another male prisoner into his cell and stabbed him a number of times in the arm, and three times in the body, the abdomen and the right front of his torso with a wooden weapon with a metal sharp end (a shiv, being a knife-like weapon). The victim required hospitalisation, however, was returned to prison soon after. The victim was a man who had previously been charged but acquitted of a sexual assault or sexual offence committed against the respondent's sister. Murray J described it as a 'revenge attack'. [43]
Prison behaviour
[43] Exhibit 1 (Chronology prepared by the State Solicitor's Office dated 3 November 2023).
The respondent spent approximately one year and nine months in detention as a juvenile until his release in 2003 at the age of 18. The respondent was taken into custody as an adult nine days after being released from Banksia Hill and has since spent more than 20 years in prison with two short periods of release into the community. He was released for four and a half months in 2005 and for 28 days in 2020. His behaviour while in prison has been generally poor.
Ms Czechowski reported that the respondent had demonstrated poor prison conduct, having accrued numerous incident reports and charges relating to misuse of the prison telephone system (making three-way calls), inciting misconduct from other prisoners (including orchestrating an assault), use of drugs not lawfully issued to him, failing to submit himself for the purpose of having a urine sample taken, disobeying orders, possession and the trafficking of contraband, possession of a weapon (manufactured shiv), numerous positive drug tests, abusive language, and being implicated in the assault of a prisoner. Dr Yewers noted that the respondent accrued 302 incidents and of those incidents, he was formally charged on 119 occasions.
Dr Wynn Owen reported that more than twenty incidents of misconduct had been recorded during this term of imprisonment. He noted that only two had occurred in the last 12 months, which Dr Wynn Owen suggested indicated a recent change in behaviour.
The majority of the respondent's prison charges during his current custodial term of imprisonment concerned substance use. Dr Yewers recorded that the respondent last tested positive to an illicit drug (Buprenorphine) on 22 March 2023. On the three occasions that the respondent was tested since then, he tested positive to methadone. Ms Czechowski confirmed that the three drug test results recorded a positive presence for methadone only, and she noted that the result of a further test taken on 13 March 2024 had not (as at the date of her report) returned from analysis. At the hearing of the State's application, Ms Czechowski's evidence was that she had been unsuccessful in obtaining that further test result from Casuarina prison.[44]
Responses to supervision
[44] ts 49 (10 June 2024).
Given his long periods of incarceration, the respondent has had relatively little experience of supervision while in the community. When released, the respondent performed poorly to supervision. Dr Yewers reported that the respondent's one period of parole in 2005 was cancelled for non-compliance and reoffending, and his supervised release order in 2003 was cancelled because he had reoffended.
Propensity to commit serious offences in the future - s 7(3)(c)
The word 'propensity' is taken to have its ordinary meaning in the context of the criminal law, that is, to have an inclination or tendency to do something.[45] In Director of Public Prosecutions (WA) v GTR at [178], in the context of an application made under the DSO Act, Murray AJA stated that:
[Propensity] means that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of a quality of a diagnosable mental illness or personality disorder.
[45] The State of Western Australia v Bellamy [2013] WASC 467 [70].
As was observed on behalf of the State, the respondent's criminal history includes convictions for 49 serious offences, which include 24 convictions for armed robbery in company; and 13 convictions for depravation of liberty.
I accepted the State's submission that the respondent's convictions demonstrate that he has an inclination and/or disposition to commit armed robberies.[46]
[46] State's submissions par 71.
Whether or not there is any pattern of offending behaviour - s 7(3)(d)
'Pattern', as it pertains to behaviour, is defined in the Macquarie online dictionary as a recurrent way of acting by an individual or group towards a given object or in a given situation.
There is a clear pattern to the respondent's offending behaviour, in that the respondent's conduct reveals that he has repeatedly, usually armed and in company, demanded and stolen money from stores before fleeing.
I accepted the State's submission that the respondent's criminal history has commonly involved armed robberies in company, stealing (including stealing motor vehicles), and burglaries. There were also further offences that were related to these categories of offences, such as possessing controlled weapons or an altered firearm (the weapons used in robberies), criminal damage (of stolen motor vehicles), deprivation of liberty (the customers in the stores being robbed), and various traffic offences (generally committed when attempting to evade police).[47]
[47] State's submissions par 74.
Further, the respondent's various robberies were committed in the presence of co-offenders, the offenders generally each had a weapon, and the offenders threatened the relevant staff members to provide money to the offenders by opening the tills and safes. For these offences, the co-offenders were the respondent's antisocial peers, and the offending behaviour was typically fuelled by illicit substance use.[48]
[48] State's submissions par 75.
As was also observed on behalf of the State, Dr Wynn Owen had noted that the majority of the respondent's serious offending (in 2001, 2003 and 2005) followed a distinct pattern. That is, armed robbery, using a knife/machete or firearm, in company with others, and the offence cycle ending when arrested rather than by deliberate choice; using a stolen vehicle to attend a place of business; entering the business armed and with some form of disguise, usually a balaclava, while visibly holding the weapon; telling staff in an intimidating manner to comply with his requests for access to money; and leaving in the stolen vehicle which was subsequently destroyed.[49]
[49] State's submissions par 76; exhibit 5, page 2291, par 21 (Dr P Wynn Owen's psychiatric report dated 16 April 2024).
I also accepted that the respondent's pattern of violent offending involved clusters of offences that continued with high frequency until arrest.[50]
Efforts to address offending behaviour and whether or not the participation in any rehabilitation program has had a positive effect - s 7(3)(e) and s 7(3)(f)
[50] State's submissions par 77.
I was obliged to consider whether the respondent had made any efforts to address the cause or causes of his offending behaviour, including by participating in any rehabilitation programs, and whether or not such participation has had a positive effect.
Dr Yewers reported that the respondent had completed four rehabilitation programs in his time in prison, and was presently engaged in alcohol and drug treatment provided by Cyrenian House and Holyoake, known as 'Allied Drug and Alcohol Programs and Treatment' (or 'ADAPT').
The respondent's counsellors had reported that he was 'highly motivated' and engaged in counselling, which the respondent reported that he planned to continue.
Among other things, Dr Wynn Owen reported that the respondent had also participated in a second Pathways intensive group program between August and September 2023 to address his addiction related offending risk. He noted that the respondent had self-reported treatment gains in a number of areas. He further noted that no other programs had been made available to the respondent, although outstanding treatment needs relating to violent offending had been identified.
Dr Yewers also noted that the respondent would be eligible for six sessions with ADAPT upon release, and that consideration could be given to his participation in additional sessions.
Ms Czechowski recorded that the ADAPT facilitators had reported as follows:
[The respondent] presented as highly motivated and engaged to counselling sessions. He has displayed insight regarding his triggers, high risk situations and demonstrated well developed relapse prevention strategies to mitigate the risk of a return to a criminogenic lifestyle.
Ms Czechowski also recorded that the respondent would ideally like to be on a lower dose post‑release, however he intends to continue taking methadone as a strategy to assist him to remain abstinent from illicit substances.[51] Further, at the hearing, Ms Czechowski gave evidence to the effect that the respondent had indicated that he believed that not taking methadone would assist him in gaining employment.[52]
[51] Exhibit 5, page 2359 (Ms K Czechowski's community supervision assessment dated 9 April 2024).
[52] ts 48 (10 June 2024).
The respondent had advised that he would engage with a general practitioner in the community for ongoing monitoring and management of his methadone.
Expert reports and extent to which the respondent cooperated with examinations - s 7(3)(a)
Dr Wynn Owen and Dr Yewers prepared reports under s 42(2)(a) of the HRSO Act. Each examined the respondent and prepared an independent report as required by s 74(1) of the HRSO Act. Dr Wynn Owen reported that the respondent was cooperative and polite at interview. Dr Yewers reported that the respondent was polite and cooperative, and responded to all questions. She also noted that the information provided by the respondent was largely consistent with previous reports and the collateral information available.
Section 74(2) of the HRSO Act requires that the reports prepared by Dr Wynn Owen and Dr Yewers indicate their respective assessment of the level of risk that, without a restriction order, the respondent will commit a serious offence; and the reasons for their assessment.
Section 74(3) of the HRSO Act required Dr Wynn Owen and Dr Yewers in preparing their reports to have regard to any medical, psychiatric, prison or other relevant report or information relating to the respondent in the possession of the Chief Executive Officer of the Department of Justice, or to which the Chief Executive Officer has, or may be given, access.
I summarise below the evidence of each of the independent experts, which evidence I weighed in the balance as required by s 7(3)(a) of the HRSO Act.
Dr Wynn Owen's psychiatric report and evidence
Dr Wynn Owen is a medical practitioner registered with the Australian Health Practitioner Regulation Agency as a generalist and specialist psychiatrist. He has had over 20 years' experience in providing reports and expert evidence in Western Australia, and generally has experience in forensic psychiatry in court, secure hospital, community and prison settings. He is currently the Head of Clinical Service, within the Western Australian State Forensic Mental Health Service. His qualifications were set out in his report,[53] and I was satisfied that he was qualified to make the assessment required of him by s 74(2) of the HRSO Act.
[53] Exhibit 5, pages 2287 - 2288, par 1 (Dr P Wynn Owen's psychiatric report dated 16 April 2024); ts 30 (10 June 2024).
Dr Wynn Owen interviewed the respondent at Casuarina Prison on two occasions on 22 April 2024 and 25 April 2024. Sources of information for the preparation of his assessment included discussions and email correspondence with Community Offender Monitoring Unit, Ms Czechowski and Ms Amy Goode; the affidavit of Fleur Marie Allen affirmed on 28 November 2023;[54] the first to fourth volume of the book of materials dated 13 March 2024;[55] this court's reasons for decisions in Roffey v The State of Western Australia [2007] WASCA 246; Ms Diane Thomson's psychological report dated 4 July 2003; pre‑sentence reports dated 16 June 2003 and 9 November 2006; video record of interviews of the respondent conducted by Western Australian Police held on 24 April 2003 and 30 January 2006; a transcript of the Western Australian Police video recorded interview with the respondent held on 13 July 2005, 26 July 2005 and 2 August 2005; and a treatment assessment report dated 9 June 2023.
Offending history
[54] Which affidavit was read at the preliminary hearing on 12 December 2023, see The State of Western Australia v Roffey [13] ‑ [21].
[55] Exhibits 1 ‑ 4.
Dr Wynn Owen summarised the respondent's offending history in pars 6 to 21 of his report, before detailing the respondent's general offending history as a juvenile and as an adult in pars 23 and 24. Among other things, Dr Wynn Owen noted that the respondent had spent more than 20 years of his adult life in prison and has been in the community on three occasions: 15 April 2003 to 24 April 2003, 23 February 2005 to 14 July 2005 and 30 April 2020 to 29 May 2020. He further noted that in a total of five months in the community as an adult, the respondent had accrued 69 convictions, which included serious offending. In addition to the serious offending, Dr Wynn Owen noted that the respondent had adult convictions for stealing, stealing of a motor vehicle, weapons including firearms possession, criminal damage by fire, aggravated burglary and a variety of motor vehicle and traffic offences.
Current attitudes towards serious offending
Dr Wynn Owen recorded that the respondent had made some statements about his offending. Among other things, Dr Wynn Owen recorded that the respondent had expressed no empathy for his victims with respect to the offences of armed robbery on 26 and 27 May 2020, the prison assault in 2006 or, the 2003 offence, and had expressed no remorse for taking from others in relation to the series of armed robbery offences that occurred from April to July 2005. While the respondent expressed empathy for the effects of his behaviour on the victims with respect to the series of armed robbery offences that occurred from April to July 2005, he expressed no remorse for taking from others.
Dr Wynn Owen further reported that the respondent had found the commission of armed robbery exciting, addictive, and that it made him feel 'pretty powerful'. Dr Wynn Owen noted that the respondent had stated on a number of occasions while interviewed that he did not realise 'until now' that the victims genuinely believed that they were at any risk, and asserted that he did not mean them any harm (despite having being told as a juvenile of the terror and fear for their lives that the victims would have experienced).
Past medical history
Dr Wynn Owen opined that the respondent's past medical history was not relevant to his risk of offending.
Past psychiatric history
Dr Wynn Owen also reported that the respondent has no formal history of mental illness. He noted that the respondent had reportedly experienced suicidal ideation for a short period on his return to prison in 2005.
History of alcohol and substance use
Dr Wynn Owen described the respondent's history of alcohol and substance use in par 28 of his report (which is described at [62] to [65] above).
Personal, social and occupational history
In his report, Dr Wynn Owen described the respondent's family and social history in par 30, the respondent's education in par 31, the respondent's occupational history in pars 32 to 34, and the respondent's sexual development and relationship history in pars 36 to 39 (which are matters described at [47] - [61] above.)
Prison history, behaviour and function
Dr Wynn Owen described the respondent's behaviour in prison in pars 40 to 47 of his report. Among other things, he noted that while more than 20 incidents of misconduct had been recorded during this current term of imprisonment, only two had occurred in the last 12 months, which Dr Wynn Owen suggested indicated a recent change in behaviour.
Previous engagement in criminogenic programs
Dr Wynn Owen summarised the respondent's engagement in programs in pars 48 to 54 of his report.
Past psychiatric, psychological and/or treatment assessments
Dr Wynn Owen summarised past reports in pars 55 to 59 of his report.
Plans for release
Dr Wynn Owen recorded that the respondent had stated that he was now motivated by a wish to spend time with his mother and grandchildren, and that he was determined not to return to prison. The respondent had also stated that he intended to comply with all conditions of a supervision order should he be released. He reported that he proposed to continue substance use counselling through ADAPT, and indicated that he would like to find regular paid employment. He stated that he was aware that meeting people he knew who still engaged in criminal activity and/or using drugs was a high risk situation for him.
Mental state examination
As noted above, Dr Wynn Owen recorded that in the course of his interview with the respondent, the respondent had presented as being cooperative and polite. Further, he made direct eye content, displayed no abnormal movements or behaviour, displayed no evidence of thought disorder, and displayed no overt evidence of cognitive impairment, with his attention and concentration being normal.
Psychiatric diagnosis
In diagnosing the respondent, Dr Wynn Owen recorded that he had used a diagnostic classification system, the Diagnostic and Statistic Manual of Mental Disorders, fifth edition (DSM‑V). He recorded that he had principally diagnosed the respondent with substance use disorder (specifying multiple substances including alcohol, amphetamines and a current opiate dependence), and antisocial personality disorder.
Risk assessment
Dr Wynn Owen accepted that reoffending risk cannot be accurately predicted. In assessing the respondent's risk, he reported that he had used three assessment tools, namely the Violence Risk Appraisal Guide - Revised (VRAG‑R), the Hare Psychopathy Checklist - Revised (PCL‑R), and the Historical, Clinical and Risk Management 20 ‑ Version 3 (HCR‑20).[56]
Results - VRAG-R
[56] Which tools are described in Freckelton I QC, Expert Evidence (6th ed) pages 898 to 900.
Dr Wynn Owen explained that the VRAG‑R is an actuarial risk tool designed to assess the likelihood of violent and sexual reoffending among male offenders, using the scores from 12 items representing living situation, school, performance, substance use, marital status, criminal history, index offence and personality.
Dr Wynn Owen recorded that the respondent's VRAG‑R score was 34, which placed him in the highest risk category. He noted that offenders with this score have a 76% likelihood of committing a new violent offence within five years of release and 87% likelihood of committing a new violent offence within 12 years. He also noted that a 'new violent offence' is not necessarily a new serious offence as defined by HRSO Act.
Results - PCL-R
Dr Wynn Owen described the PCL‑R tool as a 20 item scale for the assessment of psychopathy.
Dr Wynn Owen recorded that the respondent scored 25.3, which indicated a high level of psychopathy but did not the threshold for psychopathy. He noted that the respondent scored very highly on the second facet within the PCL-R, that being 'Social Deviance'.
Results - HCR-20
Dr Wynn Owen described the HCR‑20 as a structured professional judgment tool to assess risk of violence that considers a range of historical and dynamic risk factors for future violence.
Dr Wynn Owen opined that the following historical risk factors are relevant to the respondent's future risk of violence: the history of serious problems with violence (reported to be of high relevance); the history of serious problems with other antisocial behaviour (reported to be of high relevance); the history of problems with relationships, specifically problems with antisocial peers and peer influences (reported to be of high relevance); the history of serious problems with employment (reported to be of a moderate to high relevance); the history of serious problems with substance use (reported to be of high relevance); the history of serious problems with personality disorder (reported to be of high relevance); the history of serious problems with traumatic experiences (reported to be of moderate relevance); the history of serious problems with violent attitudes (reported to be of high relevance); and the history of serious problems with treatment or supervision response (reported to be of high relevance, particularly in relation to future treatment needs and supervision compliance).
Dr Wynn Owen opined that the following clinical risk factors are also relevant to the respondent's future risk of violence: recent problems with insight (reported to be of high relevance); and recent problems with violent ideation or intent (reported to be of high relevance).
Dr Wynn Owen also considered there to be a number of future problems present, particularly with respect to his engagement with professional services; available accommodation absent antisocial peers, lack of personal support; treatment response; and supervision response.
Brief summary formulation of violence risk
As to the respondent's current risk of violence, Dr Wynn Owen opined as follows:
122.[The respondent's] current violence risk is related to antisocial personality with associated antisocial, anti-authoritarian and violence condoning attitudes in the context of a significant past history of serious instrumental violence. Antisocial behaviours and attitudes and substance use have been present throughout [the respondent's] terms of imprisonment although his prison behaviour has moderated noticeably over the last 12 months. Violence risk will be increased if there is negative affect/emotion or through contact with antisocial peers on release, these are high risk situations for substance abuse, which will also elevate risk of violent offending.
Dr Wynn Owen also outlined the following risk scenarios specific to the respondent:
124.Violent behaviour is most likely to be associated with unemployment and financial stress coupled with return to substance use and with negative influence from antisocial peers resulting in a return to criminal activity. Violence being used instrumentally to achieve criminal goals such as the theft of money and/or goods.
125.The violence is highly likely to involve intimidation, threats and use of weapons. Significant psychological harm to victims may be long lasting, there may also be some degree of physical harm, particularly if victims are perceived to be uncooperative with demands.
126.An alternative scenario is violence to avenge actions taken against those close to [the respondent]. In this case there is likely to be a greater degree of planning, the behaviour will not be contingent on substance abuse and there is likely to be very significant physical harm with long term consequences in addition to the immediate and long term psychological harm that will result from a serious assault.
Dr Wynn Owen concluded that in his opinion, there is a high likelihood of future violent behaviours, and further opined that:
135.A high level of intervention will be required to avoid future violent behaviours, this will rely on external constraint, particularly when first released. In addition to violence preventive strategies post release support should include support to find and maintain accommodation, assistance seeking and gaining employment and assistance to engage with and complete required treatment will need to be pro-active and assertive if change is to be achieved.
136.To avoid the risk of general violence frequent supervision will be necessary, supervision will also reduce the likelihood of serious violence. Level of violence risk should be reassessed on at least a 6 monthly basis for the first 24 months post release, to monitor progress/variation in dynamic risks and to review the effect of personal circumstances at that time on risk.
137.Monitoring for drug and alcohol use will be critical component of monitoring to address violence risk.
Opinion
On the basis of his own clinical assessment of the respondent, and his consideration of the results of the risk assessment tools, it was Dr Wynn Owen's opinion that the respondent presents a high risk of committing a serious violent offence in the future if not subject to a restriction order.
Among other things, Dr Wynn Owen noted that the respondent has outstanding treatment needs relating to violent offending. He also noted that although the respondent had recently completed another Pathways drug and alcohol program, any gains in that area were yet to be tested. He also observed that the respondent had previously completed a Pathways program and had continued to use substances in prison after the program, and then had increased illicit substance use immediately upon release. However, in the course of his evidence, Dr Wynn Owen also opined that if the respondent remained in custody, there were very few gains that he would likely make, even if he were to undertake an intensive program as he would remain surrounded by antisocial peers.[57] He opined that the respondent's risk would only remain the same or elevate with any further period in prison.[58]
[57] ts 36 - 37 (10 June 2024).
[58] ts 37 (10 June 2024).
He further opined that if released, the respondent should be proactively assisted to find and keep employment, supported to find prosocial supports and recreational activities, and assisted with financial management (among other things).
Recommendations
As to treatment, Dr Wynn Owen noted that the respondent had been referred to the Forensic Psychology Assessment Team, and he recommended that the respondent be treated by a psychologist. He also recommended that the respondent continue counselling on a regular basis with ADAPT, and that he continue his participation in the methadone program (demonstrating control and stability for at least six months before consideration is given to a reduction or withdrawal from that program.[59]
[59] ts 31 - 32, 35 (10 June 2024).
Dr Wynn Owen opined that should the respondent be released, a high level of assistance would be required, including support to find employment, proactive assistance in developing prosocial supports and identifying activities. Should the respondent be released on a supervision order, Dr Wynn Owen opined that the supervision conditions should reflect the high risk situations, and recommended that if imposed, a supervision order should be for a duration of three to five years. As to the accommodation options available to the respondent, Dr Wynn Owen opined that the second available option was the more suitable option for the respondent, and it offered family support and social contact.[60]
Dr Yewers' psychological report and evidence
[60] ts 32 - 33, 36 (10 June 2024).
Dr Yewers is registered with the Australian Health Practitioner Regulation Agency and endorsed as a Doctor of Counselling Psychology. She holds a Doctor of Philosophy (Psychology) and a Master of Psychology (Counselling) degree, and has had over 20 years' experience as a psychologist. She has prepared forensic reports in a range of contexts and had extensive experience undertaking risk of recidivism assessments for complex and/or high risk violent and sexual offenders. Her qualifications are set out in her report,[61] and I was satisfied that she was qualified to make an assessment of the level of the risk that, without a restriction order, the respondent will commit a serious offence.
[61] Exhibit 5, pages 2311 - 2312, par 3 (Dr T Yewers' psychological report dated 21 March 2024); ts 38 (10 June 2024).
Dr Yewers interviewed the respondent at Casuarina Prison on two occasions, on 29 February 2024 and 11 March 2024, for a total of four hours and 10 minutes. Sources of information for the preparation of her assessment included email correspondence from Ms Goode dated 20 March 2024; a phone conversation with Ms Czechowski on 14 March 2024; email correspondence with Ms Czechowski dated 14 March 2024; the first four volumes of the book of materials dated 12 March 2024; the affidavit of Fleur Marie Allen affirmed on 28 November 2023 (referred to at [99] above); and the two assessments that Dr Yewers conducted using the Psychopathy Checklist - Revised (PCL‑R) and Violence Risk Scale (VRS) assessment tools.
As noted above, Dr Yewers recorded that the respondent was polite and cooperative throughout the assessment process and responded to all questions. Further, she reported that his concentration and attention were intact, he maintained eye contact and his affect was normal.
Background information
Dr Yewers outlined the respondent's family and social background in pars 21 to 29 of her report; the respondent's relationship history in pars 30 to 32; the respondent's education and employment in
pars 33 and 34; and the respondent's alcohol and substance use from pars 35 to 41. Dr Yewers' observations were largely consistent with and informed the observations made above.
Emotional management and violent attitudes
Among other things, Dr Yewers recorded that the respondent finds sadness a difficult emotion, and observed that it made him more likely to use drugs. Dr Yewers noted that the respondent had reported that he runs, does CrossFit, workouts daily and seeks support from his family to cope with his emotions.
Dr Yewers noted that records indicate that the respondent has historically held negative views of authority and the justice system, although he reported that he no longer has issues with authorities as long as they are fair.
As to his impulsivity, Dr Yewers recorded that the respondent reported that he was most impulsive when under the influence of substances, and considered that impulsivity was not an issue when he was sober.
Dr Yewers recorded that as to feelings of boredom, the respondent acknowledged that boredom was challenging for him and reported that he sought excitement through 'stealing cars and running around with friends'. The respondent also reported that going forward, he would seek a different type of gratification through family, and would pursue activities like riding dirt bikes and camping.
Psychological health
As to the respondent's psychological health, among other things, Dr Yewers recorded that the respondent reported that his current mental health was the best it had ever been.
Forensic and treatment history
Criminal history
Dr Yewers summarised the respondent's extensive criminal history comprising both violent and non-violent offences at pars 52 to 96 of her report.
Dr Yewers made a note of conflicting reports that had been written as to the respondent's insight and awareness of his offending and risk.
Dr Yewers recorded that the respondent had reported that he wished the robbery did not occur, but acknowledged he had put himself in the circumstances.
Offence specific treatment and intervention
Dr Yewers noted that the respondent had completed various programs, and outlined the respondent's level of engagement at pars 101 to 109 of her report.
Prison behaviour
Dr Yewers outlined the respondent's behaviour in prison in pars 110 to 114 of her report, and his account of his prison behaviour at pars 115 to 121 of her report.
Parole and community supervision behaviour
Dr Yewers also outlined the respondent's behaviour in the community at par 122 of her report, which outline was consistent with the overview at [76] above.
Risk management and future plans
Dr Yewers recorded that the respondent had reported that he considered that his risk when released to the community related predominantly to his drug use. He had stated that he would deal with difficult feelings in the community by focusing on work, exercise and family. Further, he reported that he may consider remaining on methadone treatment for a few months following his release, while he adjusted and stabilised. The respondent reported to Dr Yewers that his mind was clear and he was not craving drugs.
Dr Yewers referred to the respondent's prison medical records dated 6 December 2023, which recorded that it had then been recommended that he continue methadone maintenance treatment for at least 18 months to two years. She also noted that it was recorded that the respondent's dose had been increased from 50 milligrams to 60 milligrams, to address the cravings and withdrawals the respondent had disclosed to the medical officer.
Dr Yewers also noted the respondent had reported that upon release, he intended to limit contact with antisocial associates that he may meet in the community.
Opinions
Dr Yewers' analysis of the respondent's offending was detailed in pars 134 to 139 of her report. Among other things, Dr Yewers noted that violence had long featured in the respondent's behavioural repertoire and had persisted over time and across settings; and that recurrent features in the respondent's armed robbery convictions had included him being in the company of others, having made threats with a weapon, and being under the influence of drugs. She also noted that there was evidence of enduring antisocial attitudes regarding the necessity for violence in some situations, and the justification of circumventing rules.
While the changes that had been made by the respondent were positive, Dr Yewers noted that they were recent relative to the duration and entrenchment of the respondent's antisocial behaviour.
Risk assessment
Dr Yewers (appropriately) accepted that it is not possible to predict recidivism with unequivocal accuracy. She reported that she had used two assessment tools, namely the Hare Psychopathy Checklist - Revised (PCL-R) and the Violence Risk Scale (VRS), in assessing the respondent.[62]
PCL-R
[62] See further explanation of these tools in Freckelton I QC, Expert Evidence (6th ed) pages 899 to 900.
Dr Yewers explained that while the PCL-R was not designed to be a risk assessment tool, it provides information relevant to risk, risk management and treatment responsivity. She explained that the PCL‑R is a 20 item scale, with each item rated according to the individual's lifetime functioning and each contributing to the assessment of psychopathy.
Dr Yewers reported that the respondent's total PCL-R score was 25.6, which she explained was higher than 67% of male offenders, and fell in the 'medium' range for psychopathy.
VRS
Dr Yewers described the VRS as a tool that uses static and dynamic risk predictors to evaluate future risk of violence, to identify targets for treatment, and to assess change in risk following treatment and time. She explained that the VRS uses six static and 20 dynamic variables which are rated to determine the extent that they are associated with the individual's violent behaviour. A total VRS score is then derived, reflecting the individual's overall risk of violence.
Dr Yewers reported that the static risk variables associated with the respondent's risk of violence were his age, his young age at the time of his first violent conviction, his high number of juvenile convictions, his prior release failures, the evidence of violence throughout his lifespan, and his unstable upbringing.
Dr Yewers also described the 20 dynamic variables, along with their empirical basis and applicability to the respondent from pars 151 to 170 of her report. She reported that the dynamic factors relevant to the respondent's risk included violent lifestyle, criminal attitudes, work ethic, criminal peers, weapon use, substance abuse, violence cycle and impulsivity. Other factors that were recorded as being partially present included interpersonal aggression, emotional control, insight into violence, cognitive distortions, compliance with supervision and violence during incarceration.
The respondent's VRS total score was 57.6, which Dr Yewers explained indicated that the respondent was in Risk Category IV (above average risk) for violent recidivism. Dr Yewers noted that the respondent's score was higher than 78% of violent offenders in the normative group. Dr Yewers estimated that the three-year recidivism rate was 29.9% with a 95% confidence interval of 24.8% to 35.7%, meaning that between 25 and 36 of 100 offenders in a group with the same risk score would be charged or convicted of a violent offence after three years in the community. She further estimated that the five-year recidivism rate was 46.6% with a 95% confidence interval of 49.8% to 52.6%, meaning that between 49 and 53 offenders in a group with the same risk score would be charged or convicted of a violent offence after five years in the community.
By way of summary, Dr Yewers noted as follows:
173.To summarise, [the respondent's] VRS score, that included consideration of both static and dynamic violence risk factors, placed him in the Risk Category IV (Above Average Risk) for any violent recidivism. The dynamic factors highlighted by the VRS represent areas requiring monitoring, management, and/or treatment.
174.[The respondent's] PCL-R score fell in the 'Medium' range, indicating a moderate likeness to the construct of psychopathy whereby he has some features but not all. [The respondent's] profile was dominated by the antisocial characteristics associated with Factor 2 (lifestyle and behaviour features). PCL‑R scores are moderately correlated with general and violent recidivism.
Dr Yewers detailed likely risk scenarios applicable to the respondent as follows:
175.The most likely risk scenario for [the respondent] to commit a future violent offence is that he relapses to substance use and/or he resumes associations with antisocial peers. He might reoffend by committing a robbery for monetary gain, targeting stores or small business. Based on his history, he is most likely to commit a robbery in company. [The respondent] may have a weapon in his possession, which he would use to threaten or intimidate the victim(s) in order to overcome resistance and ensure that he achieves his desired outcome. The weapons that he has historically carried have a high potential for serious injury should he assault someone using it. If he is under the influence of drugs, he is more likely to be agitated, impulsive, and reactive. Therefore, his decision making will be impaired, and his behaviour disinhibited, increasing the likelihood of recklessness and disregard for others.
176.Another possible risk scenario for [the respondent] is that he physically assaults someone to avenge a misdeed perpetrated against a family member (or possibly a friend). Such an offence is likely to be motivated by hostility and anger, and supported by a belief that his actions are justified. [The respondent] may also utilise a weapon in this scenario and might use it to cause physical injury (rather than to gain compliance).
177.The prospect of the above scenarios eventuating is likely to decrease in the context of a prosocial way of life that includes: employment, meaningful and goal directed past times, abstinence from alcohol and illicit drug use, non-criminal peers, and stable family relationships. Persisting antisocial attitudes and distorted thinking that justifies violence will increase likelihood, as will the absence of any of the aforementioned protective factors.
Summary and recommendations
Dr Yewers opined that the respondent presented with a high risk of future serious offence if not subject to a restriction order.
Further, Dr Yewers opined that should the court make a supervision order, in her view, a period of five years would be a sufficient duration. She also expressed the opinion that the second of the two possible accommodation options was the more appropriate,[63] and was supportive of the inclusion of all of the conditions that had been proposed for inclusion in the supervision order.[64] She recommended that any conditions imposed by the court should take into account of the following:
●Intervention that targets criminogenic factors relevant to [the respondent] should be undertaken. In the current assessment, [the respondent] demonstrated a capacity for insight and self‑awareness. This is an important building block for change and can be built upon with further psychological treatment.
●[The respondent] is currently on Methadone maintenance treatment and has expressed an intention to cease, though is uncertain about the timing. He should be appropriately supported in his decision making to ensure that he is informed, ready, able to navigate the withdrawal process, and is able to adjust/cope with living drug-free. Supports might include medical input, psychological support, and/or a self-help group. Given his level of insight this could be planned collaboratively with [the respondent].
●[The respondent] has spent the majority of his adulthood in a custodial environment. He is likely to experience challenges with reintegration into the community and developing a prosocial lifestyle. It is important that he is provided with support and scaffolding as adjusts and builds his life.
●Monitoring and oversight are recommended, particularly around [the respondent's] drug use and peer associations. However, the guiding goal should be for self-management. Therefore, the intensity of the scrutiny should be sensitive to and reflective of [the respondent's] ability to manage himself.
●Over time, as [the respondent] maintains his stability and adheres to the conditions imposed by an Order, it will be important for a graded reduction in the strictness and rigidity of the conditions to ensure that he has the opportunity for independence and self-management prior to the end date of his Order.
Overall assessment of expert evidence
[63] ts 40 (10 June 2024).
[64] ts 41 (10 June 2024).
The HRSO Act requires that the court must have regard to a report of a psychiatrist and a psychologist in in considering whether it is satisfied as required by s 7(1).[65] The court will ordinarily place significant weight of the assessment of an expert made under the HRSO Act. However, if the reasons for assessment do not withstand scrutiny, even allowing for the witness' expertise, or if the assessment is based on mistaken factual assumptions, the court is free to give little weight to it.[66] The reports are only part of the materials that must be considered and the weight to be accorded to them will depend upon their cogency and reliability, when considered in light of the whole of the evidence.[67]
[65] HRSO Act s 46(2), s 7(3)(a).
[66] Director of Public Prosecutions (WA) v GTR [57].
[67] Director of Public Prosecutions (WA) v GTR [62].
On acceptable and cogent evidence, I found that the State had established to a high degree of probability that there was a high risk that upon release, the respondent would violently offend, likely in the presence of co‑offenders and armed. In so finding, I particularly had regard to the following:
(a)The respondent has a significant history of offending, including 49 serious offences.
(b)The respondent continued to offend despite having been convicted and having served lengthy sentences for similar offences. The respondent has spent more than 20 years of his adult life in prison. He was released to the community on three occasions (15 April 2003 to 24 April 2003; 23 February 2005 to 14 July 2005; and 30 April 2020 to 29 May 2020). In a total of five months in the community as an adult, he accrued 69 convictions, which included convictions for serious offences as defined by the HRSO Act.[83] When the respondent has had the opportunity to offend, he has done so.
(c)There has been a pattern to the respondent's offending behaviour. As was observed by Dr Wynn Owen, the respondent's serious offending (in 2001, 2003 and 2005) followed a distinct pattern. That is, armed robbery, using a knife/machete or firearm, in company, and the offence cycle ending when arrested rather than by deliberate choice.[84]
(d)The respondent has significant unmet treatment needs.
(e)The respondent performed poorly to supervision in the past.
(f)The reasoned opinions expressed by Dr Wynn Owen and Dr Yewers as to the risk of recidivism, which opinions I considered to be persuasive but not determinative.
[83] Exhibit 5, page 2292 (Dr P Wynn Owen's psychiatric report dated 16 April 2024). See also [80] to [85] above.
[84] Exhibit 1, pages 8 - 24 (Chronology prepared by the State Solicitor's Office dated 3 November 2023); as was observed by Dr Wynn Owen in his report, see exhibit 5, page 2291 (Dr P Wynn Owen's psychiatric report dated 16 April 2024).
Counsel for the respondent did not dispute that it was open for the court to find, on the evidence, that there was a risk that upon release the respondent would commit a serious offence involving violence.[85]
Is the risk that the respondent will commit a serious offence unacceptable?
[85] ts 29 - 30 (10 June 2024).
I proceeded on the basis that the court was not free to characterise as 'unacceptable' any level of risk which it should choose. Rather, an evaluation of the level of risk according to the objects of the HRSO Act was required, informed by the need to ensure adequate protection for the community.[86]
[86] The State of Western Australia v Garlett, cited with approval in The State of Western Australia v D'Rozario [No 3] [22]. See also Condon v Pompano Pty Ltd [23], cited in The State of Western Australia v Garlett [136(b)], [126].
Having regard to the evidence, I was satisfied that the respondent posed a risk that was 'unacceptable'. I weighed in the balance my findings as to the matters prescribed in s 7(3)(a) - (g) and (j). I particularly had regard to the nature of the risk posed to the community by the respondent given the gravity and nature of the serious offence the respondent was likely to commit; the likelihood of the respondent committing a serious offence; and the consequences to the respondent of a finding being made that an unacceptable risk existed.
The nature of the risk posed to the community
In considering whether the respondent posed a risk that was 'unacceptable', I considered the gravity and nature of the serious offence the respondent was likely to commit and the risk to the community that type of offending posed.
I was satisfied that there was a risk that the respondent would commit a serious offence of armed robbery either in company or on his own should he recommence use of illicit substances and/or re-engage with antisocial peers. Further, the serious offences committed by the respondent had a degree of violence or involved demands made with threats of violence, used to gain compliance from victims.
I accepted that serious offending by the respondent has the potential to cause serious injury, and considerable fear and trauma for victims. Given the respondent's history of offending, there was a risk of the respondent offending in a manner which involved threats and demands for money with a weapon.
While the respondent had engaged in physical violence (I noted in particular the offence which occurred while the respondent was in custody on 27 January 2006), his serious offending history revealed a usual pattern offending through demands made with threats of violence, used to gain compliance from victims, and then withdrawal from the victim.
Having regard to the above, I consider the most appropriate characterisation of the nature of the risk posed to the community by the respondent to be the risk that the respondent will threaten violence and seek to intimidate while attempting to rob a victim, likely with a weapon and in company, and that offending may escalate so that serious injury could become a possibility. The respondent's offending is likely to inflict psychological harm to victims, with the potential for physical harm, particularly if a victim is perceived to be uncooperative.
The likelihood of the respondent offending
In considering whether the respondent posed a risk that was 'unacceptable', I turned to consider the likelihood of the respondent offending and I weighed the following in the balance.
Offending history and antecedents
The respondent has a significant history of violent offending over a significant period. Further, alcohol, illicit substance abuse and antisocial peers were factors in the respondent's frequent lapses into criminal conduct.
Outstanding treatment needs and efforts to address offending behaviour
The experts were consistent in their assessment that it is likely that the respondent will commit a serious offence of armed robbery upon release should he recommence use of illicit substances and/or re‑engage with antisocial peers. I accepted their evidence, which in this regard was consistent and unchallenged.
It was also common ground that the respondent has significant outstanding treatment needs, particularly in relation to his use of violence. This is of particular significance given that the respondent's serious offences and other relevant offences typically involved a degree of violence.
I accepted that in his recent term of imprisonment, there were constraints on the respondent which precluded him from participating in treatment programs to address his violent offending. His non‑participation was not as a result of any reticence or refusal on his part. That said, the respondent has outstanding treatment needs relating to violent offending.
I accepted that the respondent reported that he was motivated to deal with his addiction and willing to engage in psychological counselling. His positive engagement with the Cyrenian House ADAPT program and commencement of methadone treatment were actions which were consistent with both Dr Wynn Owen's and Dr Yewers' observation of recent behavioural change. That said, his treatment gains had not been tested in the community.
Responses to supervision
The respondent's previous response to supervision was poor as he had offended promptly while subject to supervision.
Prison behaviour
The respondent demonstrated poor prison conduct, accruing numerous incident and charges. Dr Wynn Owen reported that more than twenty incidents of misconduct had been recorded during this current term of imprisonment. However, he noted that only two had occurred in the last 12 months indicating a recent change in behaviour.
Propensity
I was satisfied that the respondent has a tendency to commit violent offences, particularly when in antisocial company and when under the influence of illicit substances. I was also satisfied that there is a pattern to his offending.
Expert evidence
Although not determinative, I weighed the opinions of Dr Wynn Owen and Dr Yewers in the balance when I evaluated the likelihood of the respondent reoffending. Both experts expressed the opinion that if not made subject to the restriction order, the respondent was at high risk of reoffending in a serious manner as defined by the HRSO Act.
Weighing all of the evidence in the balance, I considered the likelihood of the respondent reoffending to be high.
The consequences to the respondent of making a finding that an unacceptable risk exists
I was cognisant that upon the making of a restriction order, serious consequences would be visited upon the respondent. The State pressed for the respondent to become subject to a supervision order for a term of three to five years, which would be longer in duration and likely far more onerous in its conditions than a post-sentence supervision order to which he might otherwise become subject pursuant to the Sentence Administration Act.
Weighing all of these matters in the balance and the need to ensure adequate protection for the community, I was satisfied to a high degree of probability that the respondent posed a risk that was 'unacceptable'.
If the risk is found to be unacceptable, is it necessary to make a restriction order to ensure adequate community protection against a risk that the offender will commit a serious offence?
The legislative scheme requires that regard be had to the need to protect members of the community from the risk: s 7(3)(i). Again, this called for a conclusion or findings based on the matters listed in s 7(3)(a) ‑ (g) and (j).
A finding of unacceptable risk is not determinative of a restriction order application, and the court might find that unnecessary to make a restriction order to adequately protect the community notwithstanding that it has found the risk of future offending to be unacceptable.[87] As noted at [201] above, this was not a case where another protective order (already imposed) might be found to be sufficient. In any event, I accepted the State's submission that the risk posed by the respondent required greater control and restriction that might be achieved by the imposition of a post-sentence supervision order.[88]
[87] The State of Western Australia v Garlett, as noted by Quinlan CJ in The State of Western Australia v D'Rozario [No 3] [21].
[88] ts 27 (10 June 2024). See also the evidence of Dr Yewers at ts 40 (10 June 2024).
I considered the gravity and the nature of the risk posed to the community by the respondent was such that it supported a finding of 'necessity'. Taking into account all of the findings above and the evidence before the court, I was satisfied to a high degree of probability that it was necessary to make a restriction order to ensure adequate community protection against a risk that the respondent would commit a serious offence. I formed the view that there were no measures short of a restriction order that would provide the high degree of supervision necessary to manage the respondent's risk of reoffending.
Continuing detention order or supervision order?
Having decided that the respondent was a high risk serious offender, I was required to make either a continuing detention order or a supervision order in relation to him.[89] I proceeded on the basis that I was required to choose the order that was the least invasive to the respondent's liberty while ensuring an adequate degree of protection of the community.[90]
[89] HRSO Act s 48(1), as noted in Woods v Director of Public Prosecutions (WA) [2008] WASCA 188.
[90] As was submitted on behalf of the State, see ts 53 (10 June 2024).
In considering whether a supervision order would adequately protect the community, it was necessary that I took into account any conditions which could be placed on a supervision order so as to ensure adequate protection of the community, the respondent's rehabilitation, care and treatment, and to ensure adequate protection of complainants of offences committed by him.[91] I was also required to be satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions of the order as required under s 29 of the HRSO Act. The onus was on the respondent to satisfy the court that he would so comply.[92] In considering whether the respondent had discharged his onus, I weighed the following in the balance.
[91] HRSO Act s 30(5).
[92] HRSO Act s 29(1) and (2).
First, while not at all determinative of the matter, I was cognisant that the State had made no submission that the court should not be satisfied, on the balance of probabilities, that the respondent would substantively comply with the standard conditions of the order.[93]
[93] State's submissions par 128.
Secondly, I noted that the conditions proposed were stringent and extensive, tailored to address the respondent's risk factors. The conditions were described by Dr Wynn Owen as being rigorous and entirely appropriate.[94]
[94] ts 33 (10 June 2024).
Thirdly, I noted that both experts' evidence at the hearing was that there is no issue with the respondent's physical or cognitive capacity to comply with the proposed conditions.[95]
[95] ts 34, 38, 43 (10 June 2024).
Fourthly, when the respondent was last released into the community, he was not subject to post‑sentence restraints, and promptly re-offended. As was observed by Dr Wynn Owen, release now on a supervision order would be different to his previous, unstructured, releases to the community.[96]
[96] ts 34 (10 June 2024).
Fifthly, the respondent had demonstrated awareness about his risk factors for drug and alcohol use and violence, and appeared to have reflected upon and changed his behaviour.[97] Since commencing the methadone program, the respondent's drug test results all returned positive for methadone only.[98] The respondent had also expressed his intention to continue to engage with ADAPT post‑release, and a willingness to continue on a methadone treatment program. His actions over about 12 months, including his engagement and willingness to continue a drug and alcohol program were positive developments, which revealed a capacity to self-manage. So too was his recent improvement in behaviour and attitude. In his interview with Dr Wynn Owen, the respondent reported that he considered that the supervision order would be positive and supportive.[99]
[97] Exhibit 5, page 2349, par 180 (Dr T Yewers' psychological report dated 21 March 2024).
[98] Exhibit 5, page 2360 (Ms K Czechowski's community supervision assessment dated 9 April 2024).
[99] ts 34 (10 June 2024).
Sixthly, the respondent has suitable accommodation available to him on his release, and would reside with pro-social supports.
Having regard to the above, particularly to the respondent's behavioural changes over the last year, including his apparent commitment to abstinence from illicit substance use, I was satisfied on the balance of probabilities that he would substantially comply with the standard conditions of a supervision order. In all of the circumstances and consistent with the opinion expressed by the experts, with the support of stringent and comprehensive supervision conditions, I was satisfied that the release of the respondent on a supervision order to the second of the two accommodation options proposed, would ensure an adequate degree of protection to the community.
Duration of the order
As to the appropriate duration, counsel for the State suggested that the court give consideration to imposing a supervision order of three to five years duration.[100] On behalf of the respondent, an order of such duration was not opposed, although counsel did urge consideration of three years rather than five years.[101]
[100] ts 56 (10 June 2024).
[101] ts 59 (10 June 2024).
In light of all of the evidence, including the opinions expressed by two qualified experts, I was satisfied that it would take considerable time for the respondent to achieve the level of capacity for self‑management that would reduce the risk posed by him, and to demonstrate that he was able to self-manage his own risk. In all of the circumstances I considered the appropriate duration for the order to be five years.
Conclusion
For the reasons set out above, I was satisfied, by acceptable and cogent evidence and to a high degree of probability, that it was necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against the unacceptable risk that he will commit a serious offence. Having regard to all of the evidence and to my findings, I was satisfied that the respondent was a high risk serious offender under the HRSO Act. Further, I determined that the risk of reoffending may be adequately managed in the community with the imposition of a supervision order for a period of five years. Accordingly, I made a supervision order and imposed the conditions reproduced at sch A to these reasons, which order will have effect from 1 July 2024.
Finally, I note that the respondent is presently waitlisted for treatment by a psychologist provided by the Forensic Psychological Intervention Team within the Department of Justice. As was confirmed by Ms Cashmore, one-on-one psychological treatment will be the respondent's primary treatment while subject to a supervision order.[102] It was quite clear that the respondent would require a high level of intervention upon his release, particularly when first released. As a condition of his supervision order, the respondent will be obliged to attend any psychologist, psychiatrist or counsellor as directed by the Supervising Community Corrections Officer. It is imperative that the respondent's position on the waitlist now be reviewed by the Forensic Psychological Intervention Team, so that upon release he may promptly commence treatment with a psychologist. As was acknowledged by the experts and the State, it will be critical that the respondent engage in psychological counselling with a clinician provided by the Department of Justice.[103]
[102] ts 46 (10 June 2024).
[103] ts 53, 55 (10 June 2024).
The respondent ought also be encouraged to continue his engagement with ADAPT, and supported by his treating psychologist in his continued participation in the methadone program (demonstrating control and stability for at least six months before consideration is given to a reduction or withdrawal from the program).[104] Further, pro‑social engagements and appropriate employment ought be facilitated, and drug and alcohol use and association with antisocial peers stringently monitored.
[104] As was the recommendation of Dr Wynn Owen, ts 31 - 32, 35 (10 June 2024). See also Dr Yewers' evidence at ts 39 (10 June 2024).
Schedule A - Conditions imposed by an order made on 10 June 2024
STANDARD CONDITIONS REQUIRED BY THE HRSO ACT
Report to a Community Corrections Officer (CCO) at the East Perth Adult Community Corrections Centre, 30 Moore Street, East Perth, Western Australia (WA), 6004, within 48 hours of imposition of this order being and advise the officer of your current name and address;
Report to and receive visits from, a CCO as directed by the Court;
Notify a CCO of every change of your name, place of residence, or place of employment at least 2 business days before the change happens;
Be under the supervision of a CCO, which includes, comply with any reasonable direction of the officer (including direction for the purposes of section 31 or 32);
Not leave, or stay out of the State of Western Australia without the permission of a CCO;
Not commit a serious offence during the period of the Order;
Be subject to electronic monitoring under section 31;
ADDITIONAL CONDITIONS
Residence
Take up residence at [redacted] and spend each night at that address or at a different address only if such different address is approved in advance by a CCO assigned to you;
Reporting to a CCO and supervision by a CCO
Report to a CCO at your approved release address within normal business hours on the day of release from custody under this order and be under the supervision of a CCO, report to and receive visits from, and comply with the lawful orders and directions of a CCO;
Disclose to the CCO the name and details of any paid or unpaid employment, education, training or volunteer work in which you intend to commence;
Attendance at programs or treatment
Attend all appointments with, receive visits from, consult and engage with any medical practitioner, psychiatrist, psychologist, mentor, counsellor 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 re-offending, as directed by a CCO;
Reporting to WA Police
Report to the Officer-in-Charge of the High Risk Serious Offender team at the Hatch Building, 144 Stirling Street, Perth WA 6000 within 48 hours of 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 High Risk Serious Offender team or his/her delegate;
If requested, permit Police Officers to enter and search your residence and/or vehicle and search your person for the purpose of monitoring your compliance with your obligations under this Order and allow the seizure of any such items that the Police Officers believes to contravene the conditions of the Order;
Remain at your premises and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under condition 14;
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 offending history;
Restrictions on contact with victims
Have no contact, directly or indirectly, with the victims of your violent offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-offender Mediation Unit of the Department of Justice;
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 violent offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victims at all times;
Report to the CCO and WA Police any direct or indirect contact with the victims of your offending on the next working day you report to the CCO or Police;
Criminal conduct
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 possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 (WA) applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014 (WA), and you use is in accordance with the instructions of the prescriber;
Curfew
Be subject to a curfew, pursuant to section 32 of the High Risk Serious Offenders Act 2020, such that you are to remain at and not leave you 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 front yard 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;
Prevention of high-risk situations
Not to associate with any person who may fit the criteria of being a co-offender when you previously committed any robbery offence;
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;
Provide a valid sample pursuant to Condition 27;
Not purchase, or possess, or consume or use alcohol, unless approved in advance by a CCO;
Not go, enter any part of your body inside, or remain at any licensed premises with the exception of cafes, restaurants, sporting venues and/or grocery stores unless permitted or required to do so for the following reasons;
a)For the purpose of averting or minimising a serious risk of death or injury to yourself or another person;
b)For a purpose, and duration approved in advance by a CCO;
c)On the order of a CCO or Police Officer;
Not remain in the presence of any person who is affected by alcohol or prohibited substances, or you ought to know are affected by alcohol or prohibited substances, unless the identity of such person is approved in advance by the CCO;
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, or remove the persons consuming prohibited drugs from your residence;
Advise a CCO or Police Officer of every telecommunication device capable of storing digital data or information, possessed or used by you, whether or not it is capable of being connected to the internet, and the location of that device;
Upon request, permit a CCO or WA Police at any location nominated by them, to access any telecommunication device you use capable of storing digital data, for the purpose of ascertaining your telecommunication device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device; this includes providing all screen name(s), user name(s), and email addresses;
Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on any telecommunication device that you use, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police;
Not to be in possession of any firearm, any ammunition or any offensive or prohibited weapon, replica or dangerous article and not to apply for, acquire or hold a licence to possess any firearm, any ammunition or any offensive or prohibited weapon, replica or dangerous article;
To disclose and provide reasonable details of your activities and associations/associates you come into contact with in the community, when reasonably requested by your CCO;
You must not assault, threaten, insult or use abusive language to a member of the departmental staff or an agent providing a service on behalf of the Department of Justice;
Medications/Mental Health
Attend any medical practitioner, psychologist, psychiatrist, or counsellor as directed by the supervising CCO or undergo medication treatment, as directed by the CCO in consultation with a medication practitioner or medical practitioners;
Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of reoffending and compliance with treatment to the Department of Justice; and
Permit any medical practitioner or medical practitioners to advise the CCO immediately if they become aware or suspect that you have, or intend to cease undergoing medication contrary to the advice of the medical practitioner or medical practitioners, or you have apparently ceased to consult with that medical practitioner or medical practitioners on such treatment.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KO
Associate to the Honourable Justice Strk
18 JUNE 2024
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