The State of Western Australia v Atkins [No 4] - [2023] WASC 491

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- ATKINS [No 4] [2023] WASC 491
CORAM:   SEAWARD J
HEARD:   19 DECEMBER 2023
DELIVERED          :   20 DECEMBER 2023
PUBLISHED           :   9 JANUARY 2024
FILE NO/S:   SO 19 of 2020
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
CHRISTOPHER JAMES ATKINS
Respondent

Catchwords:

Criminal law - Contravention proceedings - Application made under s 53 and s 55 of the High Risk Serious Offenders Act 2020 (WA) for the rescission of a supervision order and for a continuing detention order to be made or in the alternative for an order that the supervision order be amended as the court thinks fit - Whether on the balance of probabilities the respondent has contravened the supervision order - Whether the supervision order should be rescinded, affirmed, amended or extended - Seven months' extension to the term of the supervision order appropriate in all circumstances

Legislation:

Dangerous Sexual Offenders Act 2006 (WA) (repealed)
High Risk Serious Offenders Act 2020 (WA)

Result:

Applicant's application allowed
Interim detention order made on 8 June 2023 discharged
Supervision Order made on 15 February 2022 affirmed and extended by a period of a further seven months from the date the respondent is released on bail or otherwise released

Category: B

Representation:

Counsel:

Applicant	:	Ms T Hollaway
Respondent	:	Mr A Elliott

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Francis Burt Chambers

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

Director of Public Prosecutions for Western Australia v Griffiths [2015] WASC 393
Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4
Garlett v The State of Western Australia [2022] HCA 30
The State of Western Australia v ACJ [2021] WASC 219
The State of Western Australia v Atkins [No 2] [2022] WASC 45
The State of Western Australia v Atkins [No 3] [2023] WASC 243
The State of Western Australia v CA [No 3] [2023] WASC 144
The State of Western Australia v Gorham [No 2] [2022] WASC 351
The State of Western Australia v ZSJ [2020] WASC 330

SEAWARD J:

Introduction

This is a contravention application under the High Risk Serious Offenders Act 2020 (WA) (HRSOAct) in respect of the respondent, Christopher James Atkins.
As at the date of the application, the respondent was subject to a 5 year supervision order, which commenced on 23 May 2022. The State alleges that, contrary to s 80(1) of the HRSO Act, the respondent has contravened the supervision order on 11 occasions.
The issues for determination in this matter are:
(1)whether, on the balance of probabilities, the respondent has contravened the supervision order as alleged; and if so
(2)whether the supervision order should be rescinded and a continuing detention order made or whether the respondent should be permitted to remain on the supervision order with or without amendment or extension.
The application was heard on 19 December 2023. At the conclusion of that hearing it became apparent that it was preferable that a decision be made as a matter of some urgency. That urgency arose from the respondent having been on the interim detention order for a period of seven months, which is a significant period of time, and also if the supervision order were to be affirmed, the respondent desired to have the opportunity to spend Christmas with his family. To that end, the respondent had a bail application listed in the Perth Magistrates Court for Friday 22 December 2023. In those circumstances, I adjourned the hearing until 20 December 2023 where I delivered my decision. I provided an oral overview of my reasons and indicated that more detailed written reasons would follow. These are those reasons.
For the reasons which now follow:
(1)I am satisfied that the respondent has contravened the supervision order;
(2)I will not rescind the supervision order and make a continuing detention order;
(3)I am satisfied that the current conditions of the supervision order do not require amendment, however I will extend the term of the supervision order by seven months pursuant to s 55(1)(b) of the HRSO Act; and
(4)I am satisfied that the respondent will substantially comply with the standard conditions of such an order.

Background facts

On 15 February 2022, the respondent was deemed by Strk J to be a high risk serious offender pursuant to the HRSO Act, and was placed on a supervision order pursuant to s 48(1)(b) for a period of five years from a date not earlier than 21 days from that date: see The State of Western Australia v Atkins [No 2][1] (HRSO Reasons). The respondent was released on 23 May 2022 following a grant of parole.
[1] The State of Western Australia v Atkins [No 2] [2022] WASC 45.
The respondent's background and history of serious offending are summarised in the HRSO Reasons at [33] ‑ [47]. It is not necessary to repeat those paragraphs here, save to say by way of brief overview, that the respondent has an extensive history of violent offending, particularly against domestic partners. His offending includes four serious offences within the meaning of the HRSO Act, including two counts of deprivation of liberty, one count of aggravated robbery and one count of aggravated armed robbery.
The conditions of the supervision order are contained in sch A to the HRSO Reasons. Of relevance for this application are the following conditions:
22Not 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 your use is in accordance with the instructions of the provider.
…
30 Attend for, and submit to, urinalysis testing 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.
31 Provide a valid sample pursuant to condition 30.
…
37 Advise a CCO of every telecommunication device in your possession and upon request, permit a CCO or WA Police to access your telecommunications devices, at any location nominated by the CCO or WA Police for the purpose of ascertaining your activities and associations.
The State alleges that, following the respondent's release into the community on 23 May 2022, the respondent contravened a condition of the supervision order on 11 occasions as described in the Amended Particulars of Contravention Allegations dated 23 November 2023. Further details of those alleged contraventions are detailed below.
On 2 June 2023, the State filed an application under s 53(2) of the HRSO Act relevantly seeking:
(1)upon the court being satisfied that the respondent has contravened a condition of the supervision order, an order that the supervision order be rescinded and a continuing detention order be made; alternatively an order that the supervision order be amended in such terms as the court thinks fit;
(2)in the alternative to (1), upon the court being satisfied that the respondent is likely to contravene a condition of the supervision order, an order that the supervision order be rescinded and a continuing detention order be made; alternatively an order that the supervision order be amended in such terms as the court thinks fit.
The State only presses the orders sought in item (1) above.
On 30 June 2023, McGrath J made an order that the respondent be detained in custody on an interim detention order pending the determination of the State's application.[2] As at the date of the hearing, the respondent had served 1 year and 7 months of the supervision order and had been in custody pursuant to the interim detention order for a period of seven months. The period of time the respondent has been in prison on the interim detention order is not covered by s 57 of the HRSO Act, and therefore the supervision order has continued to run for this period of time.
[2] The State of Western Australia v Atkins [No 3] [2023] WASC 243.
At the hearing the State tendered three volumes of a Book of Materials for the contravention proceedings. Volumes 1 and 2 were dated 26 October 2023 and the Volume 3 was dated 14 December 2023.[3]
[3] Those materials being variously admissible pursuant to s 84(2)(c) and (5) of the HRSO Act.
Volume 1 contains a copy of the State's application for review; the respondent's criminal record; copies of the judgments from previous restriction hearings; certified copies of each of the contravention prosecution notices;[4] the relevant statements of material facts; the transcript from an appearance in the Perth Magistrates Court on 24 July 2023; and documents regarding the respondent's offending history. Volume 2 contains further materials concerning the respondent's offending history and historical assessment reports and documents. Volume 3 contains contravention materials including PathWest results; Community Business Information System case notes concerning interactions with the respondent and contravention reports. The court was also provided with an additional Community Business Information System case note dated 18 April 2023.
[4] Also admissible pursuant to s 80(c) of the Evidence Act 1906 (WA).
At the contravention hearing, the State called three witnesses who gave evidence. They were:
(a)Ms Julie Hasson, Consultant Forensic Psychologist, who is the author of a psychological risk assessment report dated 4 December 2023 and ordered pursuant to s 74 of the HRSO Act;
(b)Ms Chantal Spiccia, Counselling Psychology Registrar, Forensic Psychological Assessment Team, who is the author of a treatment progress report, dated 12 December 2023; and
(c)Ms Aimee Goode, Team Leader, Community Offender Monitoring Unit of the Department of Justice, who is the co‑author of an adult community corrections performance report, dated 13 December 2023.
The respondent did not tender any evidence or call any witnesses.

Statutory framework and legal principles

The objects of the HRSO Act are:
(a)to provide for 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)to provide for continuing control, care or treatment of high risk serious offenders.[5]
[5] Section 8 of the HRSO Act.
The jurisprudence established in respect of the Dangerous Sexual Offenders Act 2006 (WA) is relevant in construing and applying the HRSO Act, with necessary adaptation.[6]
[6] The State of Western Australia v ZSJ [2020] WASC 330 [31].
The powers conferred by the HRSO 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.[7]
[7] Garlett v The State of Western Australia [2022] HCA 30 [55] ‑ [56].
If an offender is charged with an offence under s 80(1) of the HRSO Act, s 53 provides that the State may make an application for an order under s 55.
On such an application, if the court is satisfied on the balance of probabilities that the offender has contravened, is contravening, or is likely to contravene a condition of a supervision order, the court must rescind the supervision order and make a continuing detention order, or, subject to s 29, release the offender on the supervision order. In the latter case, the supervision order may be amended and, in some cases, extended.[8]
[8] Section 55 of the HRSO Act.
It is to be assumed that the respondent remains a high risk serious offender; the court is not required to make that determination again.[9]
[9] The State of Western Australia v CA [No 3] [2023] WASC 144 [28].
In deciding which order to make, the paramount consideration is to be the need to ensure adequate protection of the community.[10]
[10] Section 55(3) of the HRSO Act.
A continuing detention order is an order that the offender be detained in custody for an indefinite term for control, care or treatment.[11] A supervision order is an order that the offender, when not in custody, is to be subject to stated conditions that the court considers to be appropriate in accordance with s 30 of the HRSO Act.[12]
[11] Section 3, s 26(1) of the HRSO Act.
[12] Section 3, s 27(1) of the HRSO Act.
The court cannot release an offender on a supervision order unless satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order, the onus of establishing which is on the offender.[13]
[13] Section 29, s 55 of the HRSO Act.
The standard conditions of a supervision order are set out in s 30 of the HRSO Act and include the requirement that the offender not commit a serious offence during the period of the order.[14]
[14] Section 30(2)(f) of the HRSO Act.
In Director of Public Prosecutions for Western Australia v Hart,[15] Fiannaca J observed that, in determining whether an offender 'will substantially comply with the standard conditions of the order':
[t]he court must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with and will enable the attainment of the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious … offence.
[15] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [52(6)].
Even if the court is satisfied that the offender will substantially comply with the standard conditions of a supervision order, the court must not release the offender unless satisfied that a supervision order will ensure an adequate degree of protection to the community.[16] When considering whether a supervision order would adequately protect the community, it is necessary to take into account any conditions which can be placed on a supervision order so as to ensure the adequate protection of the community, the rehabilitation of the respondent and his care and treatment. As was observed by Hall J in Director of Public Prosecutions for Western Australia v Griffiths,[17] there is no requirement under the HRSO Act that:
there be no risk of re-offending. Such a requirement could never be met and the effect would be that no person to whom the Act applies would ever be released. The requirement is that any risk be reduced to a reasonably acceptable level. This will always require a careful weighing of the nature and degree of risk and the context of methods for the management and reduction of that risk.
[16] The State of Western Australia v ACJ [2021] WASC 219 [38].
[17] Director of Public Prosecutions for Western Australia v Griffiths [2015] WASC 393 [107].
In The State of Western Australia v Gorham [No 2],[18] Archer J articulated the following nine factors that were, in effect, identified by Fiannaca J in Director of Public Prosecutions for Western Australia v Hart[19] as relevant to the assessment of whether a respondent will substantially comply with the standard conditions (the State further noting that Fiannaca J had also indicated that such factors would include the respondent's history of compliance and non-compliance):
[18] The State of Western Australia v Gorham [No 2] [2022] WASC 351 [34].
[19] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4.
(1)the respondent's attitude to the conditions of the supervision (in particular whether the respondent is likely to deliberately flout the conditions);
(2)the respondent's capacity to comply with the conditions;
(3)what measures there are in place to ensure that the respondent would substantially comply;
(4)the relative importance of any breach that might occur, in terms of the impact it would have on the practical effect of the supervision order in achieving the objects of the High Risk Serious Offenders Act;
(5)the respondent's motivation to remain offence free and in the community;
(6)any willing participation in a sex offender treatment program;
(7)abstinence from drugs;
(8)conduct while in prison; and
(9)demonstrated gains in treatment, self-management and life skills.

Issue 1 - has the respondent contravened the supervision order as alleged?

Evidence filed by the State

The State alleges that since his release into the community on 23 May 2022, the respondent has contravened a condition of the supervision order on 11 occasions. Details of those 11 alleged breaches are detailed in the Amended Particulars of Contravention Allegations dated 23 November 2023 which are attached as 'Annexure 1' to these reasons.
By way of summary, the respondent has been charged with the following 11 offences under s 80(1) of the HRSO Act:
(a)5 x contravened a requirement of a supervision order contrary to s 80(1) of the HRSO Act: being a breach of condition 31 of the supervision order requiring the respondent to provide a valid sample for urinalysis, the samples not being valid either because they were outside the temperature range or because of insufficient creatinine levels (charges RO 2180/2023; RO 2181/2023; PE 21219/2023; PE 27632/2023; PE 27627/2023);
(b)3 x contravened a requirement of a supervision order contrary to s 80(1) of the HRSO Act: breach of condition 37 of the supervision order requiring the respondent to notify a community corrections officer of every telecommunication device in his possession (charges RO 2182/2023; PE 21222/2023; PE 22539/2023);
(c)1 x contravened a requirement of a supervision order contrary to s 80(1) of the HRSO Act: being a breach of condition 22 of the supervision order prohibiting the respondent from possessing prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 (WA) - being cannabis seeds (charge PE 21220/2023); and
(d)2 x contravened a requirement of a supervision order contrary to s 80(1) of the HRSO Act: being a breach of condition 22 of the supervision order prohibiting the respondent from using prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 (WA) - being methylamphetamine (charges PE 27628/2023 and PE 27630/2023).
The State relies on these 11 charges for the purposes of the application. I also observe that the respondent has also been charged with the following four additional charges arising from the same factual circumstances:
(a)1 x possession of a prohibited drug (cannabis seeds) contrary to s 6(2) of the Misuse of Drugs Act 1981(WA) (PE 21221/2023); and
(b)3 x used a prohibited drug (methylamphetamine) contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA) (charges PE 27629/2023; PE 27631/2023; PE 27633/2023).
These offences are alleged to have occurred in the period between end of March 2023 and the beginning of May 2023.
The respondent entered guilty pleas to all of the above charges on 24 July 2023.
I have been provided in Volume 1 of the Book of Materials with certified copies of each of the prosecution notices, the relevant statements of material facts and the transcript from the appearance in the Perth Magistrates Court on 24 July 2023 where guilty pleas were entered to all charges.
I have been provided in Volume 3 of the Book of Materials with the relevant PathWest urine analysis results for each of the charges corresponding to a failure to provide a valid urine sample for analysis and for methylamphetamine use, and the relevant Community Business Information System notes maintained by the Department of Justice officers in relation to the respondent's interactions with community corrections officers.

Disposition

The respondent pleaded guilty in the Perth Magistrates Court to all 11 charges of contravening the supervision order and the four drugs charges. The respondent is due to be sentenced for these offences in January 2024. In light of the pleas of guilty, and on the basis of my review of the information provided in Volumes 1 and 3 of the Book of Materials, I am satisfied on the balance of probabilities that the respondent has contravened the supervision order as alleged by the State. I note that there were no submissions made in opposition to this issue by the respondent.

Should the Supervision Order be rescinded, affirmed, amended or extended?

Given that I have found that the respondent has contravened conditions of the supervision order, the question that remains for my determination is whether the supervision order should be rescinded and a continuing detention order made, or whether the respondent should be permitted to remain on the supervision order either on the same or amended terms.
I am required to make an order which is the least invasive, while still protecting the community adequately from the unacceptable risk the respondent were to pose if he were not under restriction.
In determining this question, the paramount consideration is the need to ensure the adequate protection of the community. Moreover, I can only make an order permitting the respondent to remain on the supervision order (or an amended supervision order) if I am satisfied on the balance of probabilities that he will substantially comply with the standard conditions of the order.

Evidence

Psychological risk assessment report

Ms Julie Hasson, Consultant Forensic Psychologist, prepared a psychological risk assessment report dated 4 December 2023, ordered pursuant to s 74 of the HRSO Act.
Ms Hasson prepared a previous report pursuant to s 74 of the HRSO Act dated 5 August 2021, which was considered by Strk J at the time of the restriction order hearing in the HRSO Reasons. The conclusions reached by Ms Hasson in her earlier report, including her risk assessment of the respondent, are summarised at [100] ‑ [113] of the HRSO Reasons.
Ms Hasson's report was based on a review of various departmental documents as well as an interview with the respondent[20] and telephone conversations with a number of persons, including the respondent's community corrections officer, Mr David Summerton, the respondent's treating Senior Counselling Psychologist, and the respondent's mother and intimate partner.
[20] Ms Hasson having also previously interviewed the respondent for the purposes of her previous report.
Ms Hasson reassessed the respondent's risk of re‑offending using the same assessment tools as in her previous report. Ms Hasson concluded that the respondent remains a high risk of committing a serious offence of general violence and intimate partner violence if his risk factors were not managed.[21] In Ms Hasson's opinion, the respondent's most likely risk scenarios involve being violent towards someone trying to stop him from committing an offence or not being compliant during an offence such as a robbery, with the level of violence and aggression used being significant and likely to cause harm. The second scenario that Ms Hasson considers likely is a physical assault on an intimate partner, with the use of weapons or fists or choking/strangulation being likely. Ms Hasson consider that the respondent's risk of re-offending is chronic.[22]
[21] Exhibit 3, 858 - 863.
[22] Exhibit 3, 862.
In the course of Ms Hasson's interview with the respondent, he stated that at the time of his release in May 2022, he believed he understood what was required of him on the supervision order, however, he found complying with the conditions of his supervision order and the limits this often imposed on others in his life was much harder than anticipated.[23]
[23] Exhibit 3, 854.
The respondent indicated that when he became unwell (having experienced two health conditions) his ability to cope and manage was severely compromised and the respondent accepts that he did not seek the necessary support that was available, and he instead retreated and lapsed back into old habits.[24]
[24] Exhibit 3, 854.
Ms Hasson agreed with a proposition put by the respondent's counsel that a key cause of the respondent's contraventions has been the stress of not coping with life events, and his falling back into maladaptive coping mechanisms, being drug use to cope with that stress, as opposed to managing it using other coping strategies.[25] Ms Hasson accepted that if the respondent had been told that there was zero tolerance for drug use, that might explain why the respondent engaged in a series of concealing behaviours.[26]
[25] ts 19 December 2023, 169, 174.
[26] ts 19 December 2023, 175.
The report states that the respondent accepts that his relapse into using methylamphetamine was a serious breach of the supervision order conditions. Ms Hasson considers that the respondent is aware of the link between drug use, antisocial peers and criminal lifestyle/offending behaviour, and opines that an increased focus on forming prosocial friendships and pastimes, peer refusal and developing better coping skills is required by the respondent.[27]
[27] Exhibit 3, 854.
Ms Hasson states that overall, the respondent acknowledged responsibility for making several bad choices and decisions while in the community. Whilst the respondent was reasonably accountable and accepting of responsibility for the drug related breaches, his explanation for being in possession of multiple phones and not disclosing such was less convincing. However, the respondent later revealed that he was embarrassed at having intimate messages between himself and his partner read by Community Offender Monitoring Unit (COMU) staff. Whilst this was not his only explanation, the respondent indicated to Ms Hasson that he is aware that he must remain more mindful of the conditions of his supervision order, and that he must be more transparent and communicate better.[28]
[28] Exhibit 3, 855.
When asked about his interactions and engagement with his supports (including his family, partner and employment) the respondent recognised that at times he has struggled with his communication and has not expressed himself as well as he could have. Ms Hasson considers that the respondent appears to have an adequate level of insight into his personality style and issues, particularly around fears of abandonment. The respondent is able discuss how he processes experiences when he is emotionally removed, however when in the moment his self-awareness declines and old patterns of behaviour emerge.[29]
[29] Exhibit 3, 855.
In terms of his counselling treatment to date, Ms Hasson notes that the respondent expressed a positive attitude towards ongoing counselling. In particular, the respondent expressed an interest in being able to continue to seek support from his previous drug and alcohol counsellor, Michael Grove. Ms Hasson was supportive of this, provided clear boundaries were maintained between Mr Grove, Mr Summerton and the respondent.[30] The respondent commenced counselling with Mr Summerton following his release on the supervision order. Both Mr Summerton and the respondent agreed that there had been challenges to establishing a therapeutic relationship, largely caused by the respondent's trust issues and his health issues interrupting his attendances. However, Mr Summerton describes the therapeutic relationship as being a robust working relationship.[31] The respondent indicated that his engagement had been more meaningful since he was returned to prison.[32]
[30] Exhibit 3, 856.
[31] Exhibit 3, 856.
[32] Exhibit 3, 856 ‑ 857.
Ms Hasson agreed that the respondent had sincerely expressed a desire to remain in the community, that he speaks in terms of realistic goals in the short, medium and longer term[33] and that he seems very committed to making the necessary changes.[34]
[33] ts 19 December 2023, 170.
[34] ts 19 December 2023, 173.
In Ms Hasson's opinion, the respondent is at a very early stage of his change process (which is where Ms Hasson would expect him to be) and whilst he has an intellectual appreciation of what he needs to do, he is yet to reach the levels of emotional and behavioural change.[35]
[35] Exhibit 3, 864; ts 19 December 2023, 162 - 163.
Ms Hasson identified a number of outstanding treatment needs and risk factors for the respondent as well as identifying supervision strategies that could assist. Ms Hasson considers that the respondent has a history of prior supervision failures, and given his personality and behaviour recently in the community, there is a reasonable likelihood of compliance difficulties with supervision, especially if he disagrees with or does not see the relevance of certain restrictions or if he is getting pressure from family or intimate partners wanting him to do things that may be in breach of his conditions. However, Ms Hasson concluded that possible non‑compliance by the respondent can be reduced and engagement can be enhanced through the development of a collaborative working partnership between the respondent and those responsible for his supervision, monitoring and treatment.[36] Ms Hasson indicated that this could be achieved through the current conditions of the supervision order, which provide a large number of safeguards and protections for the community.[37]
[36] Exhibit 3, 865 - 866.
[37] ts 19 December 2023, 188.
Ms Hasson's oral evidence was that whilst she anticipates the respondent will have compliance difficulties with the supervision order (which Ms Hasson considers to be normal) he is likely to substantially comply with the supervision order.[38] Further, Ms Hasson considered that there is no particular reason why the respondent cannot comply.[39]
[38] ts 19 December 2023, 155, 188.
[39] ts 19 December 2023, 155 - 156.
In the event that the respondent were to be released on the supervision order, Ms Hasson's opinion is that there be capacity for progression towards increasing self‑management and allow sufficient time for new behaviours to develop; that supervision and monitoring be collaborative, flexible and creative with a removal of conditions overtime commensurate with improved capacity to self‑manage; that there be a focus on engagement towards creating a positive prosocial lifestyle (including healthy intimate and non-intimate relationships, meaningful employment and stable accommodation); urinalysis and counselling to support abstinence from alcohol and illicit substance use; and that individual psychological counselling continue.[40]

Treatment progress report

[40] Exhibit 3, 866 - 867.

The State also tendered a treatment progress report dated 12 December 2023, prepared by Ms Chantal Spiccia. Ms Spiccia is a Counselling Psychology Registrar and her report provides an overview of the respondent's treatment progress to date and focusses on any potential treatment gains and needs.
Ms Spiccia's report was based on a review of various documents as well as two interviews with the respondent and communications with Mr Summerton and various officers of COMU.
The report details that the respondent commenced individual intervention with Mr Summerton on 25 July 2022 and attended 16 sessions in the community and nine sessions in prison. Mr Summerton indicated that the respondent's health issues resulted in some infrequency of contact and also that the respondent's difficulty in trusting others had hindered disclosures during the initial phase of treatment. The report provides an overview of the topics addressed by Mr Summerton to date.[41]
[41] Exhibit 3, 835 - 836.
Ms Spiccia identifies the factors which, in her opinion, contributed to the respondent's contraventions. These include antisocial attitudes and cognitive distortions which impacted his compliance with his supervision order; emotional regulation and self‑management difficulties in the context of stressors related to significant health issues and being subject to the HRSO Act; and polarising thoughts and emotional overwhelm that all culminated in the return to maladaptive coping strategies (being methylamphetamine use, and poor decision‑making and problem solving).[42]
[42] Exhibit 3, 840.
Ms Spiccia agreed with the proposition put by the respondent's counsel that his failure to comply with conditions of his supervision order was largely the result of a build‑up of stresses. Without the respondent disclosing that he was not coping at the time to his various professional supports (being his CCO and Mr Summerton), that then led to a range of poor decision‑making, poor problem solving and potentially not recognising risk-relevant situations, such as who he may have been associating with. That in turn led to a return to maladaptive coping strategies, being substance abuse.[43]
[43] ts 19 December 2023, 193.
Ms Spiccia considered the respondent demonstrated some insight into the contributing factors to his contraventions and identified high risk situations for a return to substance use. However, the respondent still demonstrated antisocial attitudes and had a simplistic view of the contribution of his lack of openness with treating and supervising staff, and ignored his other behaviours such as actively engaging in strategies and behaviours to avoid detection. In her opinion, ongoing treatment needs include addressing the respondent's insight into his offending behaviour, his maintenance of pro‑criminal attitudes and the nuances of transparency in interpersonal interactions.[44]
[44] Exhibit 3, 840.
Ms Spiccia considered that in order for the respondent to engage meaningfully in treatment and supervision he will need to sustain transparency with his community corrections officer and treating psychologist. Ms Spiccia noted that the respondent's past distrust of Mr Summerton hindered initial rapport building, however it now appears that the respondent has a positive therapeutic relationship with Mr Summerton. Ms Spiccia agreed that the respondent had made progress in prison.[45]
[45] Exhibit 3, 840 - 841.
Ms Spiccia identified the respondent's treatment needs as being consistent with those identified in previous reports and include: substance use; compliance with supervision; stability of relationships and communication skills; emotional regulation and self‑management strategies and cognitive distortions.[46]
[46] Exhibit 3, 841.
Ms Spiccia considered that the respondent was in the early stages of the both the change process and his treatment,[47] and recommended that all the respondent's treatment needs, at this stage of that process, be addressed through his engagement with Mr Summerton.[48]

Adult Community Corrections Performance Report

[47] ts 19 December 2023, 192.

[48] Exhibit 3, 842.

The State also tendered an adult community corrections performance report, co-authored by Ms Goode, dated 13 December 2023. Ms Goode is a Team Leader in the COMU in the Department of Justice, Corrective Services. This report provides an overview of the respondent's response to being on the supervision order, both in the community and in prison.
The report notes that the respondent's response to being on the supervision order has been mixed. The report records that prior to early 2023, the respondent was generally complying, with weekly appointments having a significant focus on his medical issues and anxiety symptoms. However, from March 2023, the respondent's compliance began to deteriorate, with avoidance of urinalysis, drug use and missing counselling sessions occurring.[49] A detailed account of the various non‑compliance events is included.[50] The report notes that no victim issues have arisen during the term of the supervision order.[51]
[49] Exhibit 3, 869.
[50] Exhibit 3, 869 - 875.
[51] Exhibit 3, 875.
The report includes information regarding the respondent's time in prison and whilst there are some issues noted, none can be described as particularly serious.[52]
[52] Exhibit 3, 878 - 879.
For the purposes of preparing the report, interviews were undertaken with the respondent on two occasions. The report details that initially the respondent expressed frustration in relation to the restrictions the supervision order placed on his lifestyle and directed this frustration to COMU. The respondent indicated that he felt he was receiving inconsistent information from COMU and said he was initially told there was zero tolerance for drug use and any drug use would result in imprisonment[53] and this is why he was not forthcoming about his methylamphetamine use.[54] He also indicated he felt the fact that his text messages with his partner were read by COMU officers was an invasion of privacy.
[53] Ms Goode's oral evidence is that the respondent would not have been told that, as that is not what occurs. Rather, the respondent would have been informed about the range of penalties possible in the Magistrates Court.
[54] Exhibit 3, 879 - 881.
In the second interview, the respondent clarified that he had spent the first interview largely complaining, and having reflected he said that he always understood the supervision order requirements, but did not realise how hard complying with the conditions would be, or that they would become his entire life. He had therefore approached the supervision order in an untrusting manner. The report records that the respondent indicated he felt the supervision order will shape his life for the better and that he is committed to communicating his circumstances and stressors to the COMU and the treating psychologist.[55]
[55] Exhibit 3, 881 - 882.
The respondent insisted that he had only taken methylamphetamine on two occasions, and the void urinalyses were not associated with the drug use, but rather concerned the side effects of his medical issues and the effect this had on his (in)ability to provide samples.[56] A description of the respondent's various medical issues is included, and Ms Goode confirmed in her oral evidence that medical documents had been viewed in support. The report details that whilst one medical condition appears to be responding well to medication, another medical issue will require surgery.[57]
[56] Exhibit 3, 879 - 880.
[57] Exhibit 3, 882.
Various accommodation options were assessed,[58] and there is no objection to either.[59] The report also contains a review of some of the prison phone calls between the respondent and his intimate partner. These are discussed later in these reasons, however the content did raise concerns for COMU.[60]
[58] Exhibit 3, 882 - 883.
[59] ts 19 December 2023, 219 - 220.
[60] Exhibit 3, 885 - 888, 890 -891.
The report details a number of strategies to manage the respondent and his behaviours and refers to the report of Ms Hasson.[61] The report only identifies one possible additional condition for the supervision order, and this is discussed later in these reasons.[62] The report details that multi-disciplinary management will occur if the supervision order is affirmed, utilising the current conditions to detect and align reporting of any coercively controlling and emotionally abusive behaviour, to prevent escalation to psychological, physical harm.[63]

Disposition

[61] Exhibit 3, 890 - 891.

[62] Exhibit 3, 890 - 891.

[63] Exhibit 3, 892.

The evidence before me establishes that in absence of restriction, the respondent remains at high risk of committing both a serious offence of general violence as well as a serious act of intimate partner violence if his risk factors were not managed.
In their reports, Ms Hasson and Ms Spiccia identify a number of outstanding treatment needs and risk factors for the respondent, as well as identifying supervision strategies that could assist. In all the circumstances, I am satisfied that it is not appropriate to rescind the supervision order, as I am satisfied that the supervision order will ensure adequate protection of the community against the unacceptable risk that the respondent would, if not subject to restriction, commit a serious offence. The key factors relevant to my conclusion are:
(a)the respondent's compliance with supervision order for the first eight months following his release, including 44 clear urinalysis results;[64]
[64] Being both regular tests and spot checks.
(b)the nature of the contraventions in that they are not violence related contraventions;
(c)the circumstances surrounding the contraventions including:
(i)that they appear to have been precipitated by stress caused by significant health issues the respondent has suffered and continues to suffer;
(ii)the respondent's inadequate coping skills which then lead to him falling back on maladaptive coping mechanisms, including drug taking and diluting his urine sample;
(iii)the respondent's misunderstanding that there was a zero tolerance policy towards drug taking, which contributed to him not engaging in an open and honest manner with his treating psychologist, Mr Summerton, and addressing his stress in a more appropriate way;
(iv)the respondent's difficulties adjusting to the reality of living under the strict conditions of the supervision order. For example, embarrassment in having departmental officers reading his text messages and not being able to continue working with a previous counsellor;
(d)the respondent's behaviour and performance whilst in prison on the interim detention order, which includes making forward steps in developing a therapeutic rapport with Mr Summerton and making positive steps in his treatment. Whilst at an early stage in his change progress, the reports indicate that the respondent appears to have demonstrated some insight into the contributing factors to his contraventions and general acknowledgment of responsibility for his actions and the areas he needs to work on further;
(e)the respondent's desire to comply with supervision order;
(f)the protective factors surrounding the respondent in the community including the treatment options for his health conditions out of prison, his proposed accommodation, a job being reserved for him, the support from his mother and intimate partner who is understanding of his circumstances and the treatment plans and options in place or able to be accessed; and
(g)the effectiveness of the monitoring by COMU to date (including GPS monitoring, urinalysis and supervision). However, I note that this does not in any way absolve the respondent of the responsibility to comply.

I am also satisfied, on the balance of probabilities, that the respondent will substantially comply with the standard conditions of the supervision order. In this regard I refer to the reasons I have just outlined and also rely on the reports before me, including that of Ms Hasson, who expressed the opinion that whilst the respondent may have compliance difficulties (which Ms Hasson considers is normal) he is likely to substantially comply with the supervision order.[65] Further, that any possible non‑compliance can be reduced and engagement can be enhanced through the development of a collaborative working partnership between the respondent and those responsible for his supervision, monitoring and treatment.

Other matters

[65] ts 19 December 2023, 155, 167, 188.

That leaves three remaining matters, concerning the term, conditions and commencement date of the supervision order.
First, the State submits that the term of the supervision order should be extended by a period of seven months, to reflect the period of time the respondent has been on the interim detention order. Ms Hasson did not oppose such an extension and also continued to be of the view that a 5 year term (subject to this extension) was appropriate in all the circumstances.[66] The respondent agreed to the extension of seven months during the hearing. I therefore consider it appropriate to extend the term of the supervision order by seven months.
[66] ts 19 December 2023, 166 - 167, 187 - 188.
Secondly, all experts appearing agreed that, save for one issue, the current conditions contained in the supervision order were appropriate. In the Performance Report co-authored by Ms Goode, and in her oral evidence, an issue was raised as to whether an additional condition to the following effect should be imposed:
Not to behave in an intimidatory, threatening or emotionally abusive manner towards [his mother, partner] or anyone you commence an intimate relationship with.
The reason for its proposed inclusion was in response to a review undertaken of the respondent's recorded phoned conversations with his partner whilst in prison and concerns about what was said in those conversations. In particular, a concern that those calls evidence the respondent engaging in coercive control behaviours including verbal abuse, emotional manipulation, psychological abuse, harassment, jealousy and monitoring.
Ms Goode's evidence is that she is aware of such a condition being imposed in relation to three other high risk serious offenders.
Ms Hasson did not support the inclusion of such a condition. Ms Hasson was of the opinion that the condition was subjective and would be difficult to monitor and enforce. Ms Hasson also considered that addressing this legitimate underlying issue was better done as a counselling topic. Ms Hasson was concerned that, given the respondent's borderline personality, such a condition may be setting him up to fail.[67] I also note that Ms Spiccia's report records that this topic is not yet one addressed by Mr Summerton.
[67] ts 19 December 2023, 163 - 165.
In all the circumstances, I am satisfied that given the other conditions of the supervision order, the protective factors in place, and improved working relationship with Mr Summerton, that the additional condition raised for consideration is not presently needed in order to ensure the community is adequately protected. I am also of the view that the condition is subjective, may be difficult to monitor and may impede the current therapeutic treatment work the respondent is engaged in.
Finally, there is the question of the commencement date of supervision order once affirmed. As at 20 December 2023, the respondent was in custody on an interim detention order and would not be able to be released from prison (even if the supervision order is affirmed) unless and until bail is granted. The respondent's counsel advised that he had filed a bail application on the respondent's behalf and it had been listed in the Perth Magistrates Court on Friday 22 December 2023.
Given the time of year, the respondent would, if he were to be released on a supervision order, like to be released so that he may spend Christmas with his family and intimate partner.
The State submitted that any affirmed supervision order should not commence until the next business day following the respondent receiving bail. If the respondent were to be granted bail on Friday, and was able to satisfy any conditions on the same day, that would mean that the respondent would not be able to spend Christmas with his family.
The reason given for the State's position is that COMU will require this time to consider any bail conditions and put in place appropriate steps and plans for the respondent. Ms Goode's evidence was that the COMU had already commenced planning for the scenario that the respondent may be released on a supervision order. Ms Goode's evidence was that if the respondent was released on a supervision order with the same conditions, then no additional time was needed. However, Ms Goode's position was that an additional business day was requested to deal with any bail conditions imposed and to take in account the fact that if the respondent's bail application was not decided until late in the afternoon on a Friday, there may be difficulties for COMU in taking all required steps. Without knowing what those bail conditions might be, COMU was not able to prepare in advance, and in any event COMU do not make assumptions about what those conditions may be.
The respondent's counsel indicated that he will be seeking only one bail condition, being a personal undertaking of $1,000, given the extensive conditions the respondent will be subject to under any supervision order.
I accept that the State's position is based on genuine operational needs and would, ordinarily, not be an unreasonable request. However, on 20 December 2023, I indicated that I did not propose to order the commencement date as requested by the State. My reasons for reaching this conclusion are:
(a)the respondent has already spent seven months in prison on the interim detention order. Whilst the respondent's detention is of his own making, it is nonetheless a relevant consideration;
(b)I affirmed the supervision order and did not amend any of its conditions. Therefore, COMU already had in place many of the plans required for the respondent, and as Ms Goode has indicated, had already commenced preparation in case that is the order of the court;
(c)the number and nature of the conditions of the supervision order made it less likely that extensive bail conditions would be imposed, if bail is granted. In reaching this conclusion I indicated that I was, of course, not prejudging the outcome of the bail application and indicated that nothing in my decision ought to be taken in that manner or to be taken as an indication of what decision the learned Magistrate hearing the application should make. I merely concluded that it seems less likely that there will need to be significant additional work for COMU; and
(d)the impending Christmas period and the understandable desire for the respondent to spend Christmas with his family. Again, although the respondent's predicament is of his own making, it was nonetheless a relevant consideration in combination with the above factors.

Orders

At the conclusion of the hearing on 20 December 2023, I made the following orders:
1.The Applicant's application for orders under s 55(1)(b) of the High Risk Serious Offenders Act 2020 (WA) dated 2 June 2023 is allowed.
2.The interim detention order made by the Hon Justice McGrath on 8 June 2023 is discharged.
3.The Supervision Order made by the Hon Justice Strk on 15 February 2022 is affirmed on the same terms and conditions save that the Supervision Order is extended by a period of a further seven months from the date the Respondent is released on bail or otherwise released.

Annexure 1

Amended Particulars of Contravention Allegations

1.On 15 February 2022 in the Supreme Court, Strk J found that the Respondent was a high risk serious offender and made a supervision order (the SO) under section 48(1)(b) of the High Risk Serious Offenders Act 2020 (the Act).
2.The Respondent was made subject to the SO for a period of 5 years. The SO came into effect on 23 May 2022.
3.Following his release into the community on 23 May 2022, the Respondent contravened a requirement/condition of the SO on eleven occasions as particularised below.

Contraventions #1 – #3 (RO 2180-2182 of 2023)

4.Condition 30 of the SO provides that the Respondent 'Attend for, and submit to, urinalysis testing 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.'
5.Condition 31 of the SO provides that the Respondent 'Provide a valid sample pursuant to condition 30.'
6.On 28 March 2023, the Respondent was directed to attend urinalysis testing at Rockingham Adult Community Corrections on 30 March 2023. The Respondent attended and provided the sample as directed.
7.On 31 March 2023, the sample returned a void result due to the temperature being out of range. The Respondent declined to provide a secondary urinalysis sample (RO 2180 of 2023).
8.On 4 April 2023, the Respondent contacted by telephone and directed to attend urinalysis testing at Rockingham Adult Community Corrections that same day. The Respondent attended and provided the sample as directed.
9.On 6 April 2023, the sample returned a void result due to the low creatinine level in the urine. The Respondent declined to provide a secondary urinalysis sample (RO 2181 of 2023).
10.On 13 April 2023, officers from the HRSO Team attended the Respondent's home address and conducted a compliance search relating to the SO. [Officers] advised the Respondent of the reason for the search, and he surrendered a homemade pumping apparatus which was still filled with a quantity of urine. The Respondent made admissions to constructing the item and using the device during one of his urinalysis tests.
11.Condition 37 of the SO provides that the Respondent 'Advise a CCO of every telecommunication device in your possession and upon request, permit a CCO or WA Police to access your telecommunications devices, at any location nominated by the CCO or WA Police for the purpose of ascertaining your activities and associations.'
12.On 4 April 2023, during a scheduled supervision session, the Respondent advised his Senior Community Corrections Officer (SCCO) that his Samsung mobile phone had extensive screen damage, which had progressively been becoming worse. He then produced another phone from his pocket (a cream/white coloured Next G Telstra mobile) and advised the SCCO that he was now using that phone. The SCCO questioned how long the Respondent had been using the phone, and he advised it had been 'on and off for about a month' (RO 2182 of 2023).
13.On 13 April 2023, officers from the HRSO Team attended the Respondent's home address to conduct a compliance search in relation to several reported breaches of the SO. The Respondent did not comment on the mobile phone.
14.On 24 July 2023 in Perth Magistrates Court, the Respondent pleaded guilty to all three charges.

Contraventions #4 – #6 (PE 21219-21220; 21222 of 2023)

15.On 18 April 2023, the Respondent attended urinalysis testing at Rockingham Adult Community Corrections and provided a sample.
16.On 21 April 2023, the sample returned a void result due to an insufficient urine creatinine level of 0.6 units per mmol/L (PE 21219 of 2023). The sample was noted to contain the presence of methylamphetamine, with the concentration in the sample being in excess of 5000 ug/L.
17.Condition 22 of the SO provides that the Respondent '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 your use is in accordance with the instructions of the provider.'
18.On 25 April 2023, officers from the HRSO Team attended the Respondent's home address and arrested the Respondent regarding a separate matter. Whilst checking the Respondent's medication, a small clip seal bag containing seeds was located in a box of tablets. The Respondent admitted that they were cannabis seeds and belonged to him (PE 21220 of 2023).
19.There were 32 cannabis seeds in the clip seal bag.
20.Further, a Samsung mobile phone was located in the bedroom of the Respondent who admitted that it was his. This mobile not been disclosed to a Community Corrections Officer (CCO) (PE 21222 of 2023).
21.On 24 July 2023 in Perth Magistrates Court, the Respondent pleaded guilty to each of the charges.

Contraventions #7 (PE 27632 of 2023)

22.On 24 April 2023 the Respondent was directed to attend the Adult Community Corrections Centre, Rockingham in order to submit a sample for urinalysis and provided a sample.
23.On 27 April 2023, the result of this sample was received and having been tested by PathWest was noted to be dilute with a creatinine level of 0.7mmol/L, which is below the AS/NZS standard cut off threshold of 1.8mmol/L and is therefore considered void (PE 27632 of 2023).
24.On 28 April 2023, Police were notified of the test results.
25.The sample was noted to contain the presence of methylamphetamine, with the concentration in the sample being 1143ug/L of methylamphetamine.
26.The last occasion the Respondent submitted a sample for urinalysis which did not contain methylamphetamine was on 4 April 2023. This indicates methylamphetamine was ingested by the Respondent sometime between 2 April 2023 and 18 April 2023.
27.On 24 July 2023 in Perth Magistrates Court, the Respondent pleaded guilty to the charge.

Contravention #8 – #9 (PE 27627-27628 of 2023)

28.On 1 May 2023, the Respondent was directed to attend the Adult Community Corrections Centre, Rockingham in order to submit a sample for urinalysis and provided a sample.
29.On 4 May April 2023, the results of the sample was received and having been tested by PathWest was:
a.noted to be dilute with a creatinine level of 1.7mmol/L, which is below the AS/NZS standard cut off threshold of 1.8mmol/L and is therefore considered invalid (PE 27627 of 2023);
b.a positive result for methylamphetamine with a concentration of 3745ug/L indicating a contravention of condition 22 of the SO (PE 27628 of 2023);

30.On 4 May 2023, Police were notified of the test results.
31.On 24 July 2023 in Perth Magistrates Court, the Respondent pleaded guilty to the charges.

Contravention #10 (PE 22539 of 2023)

32.Condition 13 of the SO provides that the Respondent 'If requested, permit Police Officers to enter and search your residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this Order and allow the seizure of any such items that the Police Officer believes to contravene the conditions of the Order.'
33.On 3 May 2023, officers from the HRSO Team requested that the Respondent allow them to search a silver Holden Colorado registration 1GFF 590 being used by him.
34.The Respondent was then requested to hand over his mobile telephone for review. The Respondent removed a mobile telephone from a pocket located beneath the front passenger seat of the vehicle and handed it to the officers, the device being a black Samsung Galaxy A31 with a cracked screen. The phone was found to have dual SIM cards with different telephone numbers being used in the device. As the Respondent handed the phone to officers, he stated 'this is a new phone and I've broken the screen already'.
35.Inquiries with the Community Offender Monitoring Unit (COMU) revealed that the Respondent had failed to disclose possession of the device and had left it in his vehicle when attending his appointment with his CCO prior to police interaction. An SMS message on the phone dated 28 April 2023 was located on the device indicating its use from this date. The Respondent's explanation was 'I emailed them when I got it'. Checks with CCOs have indicated they are not in receipt of any communication from the Respondent regarding his possessing the Samsung device.
36.On 24 July 2023 in Perth Magistrates Court, the Respondent pleaded guilty to the charge.

Contraventions #11 (PE 27630 of 2023)

37.On 3 May 2023, the Respondent was directed to attend the East Perth Adult Community Corrections Centre in order to submit a sample for urinalysis, which the Respondent complied with.
38.On 8 May 2023, the result of this sample was received and having been tested by PathWest returned a positive result for methylamphetamine with a concentration of <5000 ug/L (PE 27630 of 2023) indicating a contravention of condition 22 of the SO.
39.On 8 May 2023, Police were notified of the test results.
40.On 24 July 2023 in Perth Magistrates Court, the Respondent pleaded guilty to the charge.
Dated the 23^rd day of November 2023.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AA
Associate to the Honourable Justice Seaward
9 JANUARY 2024