The State of Western Australia v Blurton [No 3]

[2023] WASC 419

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- BLURTON [No 3] [2023] WASC 419

CORAM:   DERRICK J

HEARD:   24 OCTOBER 2023

DELIVERED          :   2 NOVEMBER 2023

FILE NO/S:   SO 16 of 2022

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

KENNETH PAUL BLURTON

Respondent

Catchwords:

Criminal law - High Risk Serious Offenders Act 2020 (WA) - Restriction order application - Whether restriction order should be made - Whether a continuing detention order or supervision order appropriate

Legislation:

Criminal Code (WA)
Dangerous Sexual Offenders Act 2006 (WA)
Guardianship and Administration Act 1990 (WA)
High Risk Serious Offenders Act 2020 (WA)
Sentence Administration Act 2003 (WA)

Result:

Continuing detention order made

Category:    B

Representation:

Counsel:

Applicant	:	D S McDonnell
Respondent	:	A Fedele

Solicitors:

Applicant	:	State Solicitor's Office (WA)
Respondent	:	Legal Aid (WA)

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

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 Hart [2019] WASC 4

Director of Public Prosecutions for Western Australia v Williams [2007] WASCA 206; (2007) 35 WAR 297

Garlett v The State of Western Australia [2022] HCA 30

GBT v The State of Western Australia [2019] WASCA 40

Italiano v The State of Western Australia [2009] WASCA 116

The State of Western Australia v ACJ [2021] WASC 219

The State of Western Australia v Blurton [2022] WASC 439

The State of Western Australia v Blurton [No 2] [2022] WASC 455

The State of Western Australia v Dragon [No 2] [2022] WASC 189

The State of Western Australia v D'Rozario [No 3] [2021] WASC 412

The State of Western Australia v Latimer [2006] WASC 235

The State of Western Australia v Narkle [2019] WASC 404

The State of Western Australia v Newland [2018] WASC 344

The State of Western Australia v Patrick [No 4] [2020] WASC 48

The State of Western Australia v Patrick [No 5] [2022] WASC 61

The State of Western Australia v Quartermaine [No 2] [2021] WASC 267

The State of Western Australia v West [No 6] [2019] WASC 427

The State of Western Australia v ZSJ [2020] WASC 330

DERRICK J:

Introduction

1. The applicant applies for a restriction order to be made in relation to the respondent pursuant to s 48(1) of the High Risk Serious Offenders Act 2020 (WA) (Act).

2. For the reasons set out below, I have decided that the respondent is a high risk serious offender and that a restriction order, specifically a continuing detention order, should be made in relation to the respondent.

Background to the hearing of the restriction order application

1. On 2 July 2020 the respondent was convicted on his pleas of guilty of one offence of aggravated robbery contrary to s 392 of the Criminal Code (WA) (Code) and one offence of aggravated assault with intent to rob contrary to s 393 of the Code (index offences). On the same date he was sentenced to 2 years 2 months imprisonment for the aggravated robbery offence and 12 months imprisonment for the aggravated assault with intent to rob offence. The sentences were ordered to be served cumulatively giving a total sentence of 3 years 2 months imprisonment. The respondent was made eligible for parole. The commencement date of the sentence was backdated to 18 October 2019 to take account of the time that the respondent had already spent in custody for the offences.

2. On 20 September 2021 the Prisoners Review Board (PRB) denied the respondent's release on parole.

3. On 8 November 2022 the applicant made an application for the following orders to be made in relation to the respondent:

   1.A restriction order under s 48(1) of the Act (the application for this order being made pursuant to s 35(1) of the Act);[1]

   2.Orders pursuant to s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the Act; and

   3.An order that until the conclusion of the hearing and judgment on the application for a restriction order the respondent be detained in custody pursuant to s 46(2)(c)(i) of the Act, alternatively be released on an interim supervision order pursuant to s 58(5) of the Act subject to the conditions in s 30(2) of the Act and such other conditions as considered appropriate by the court.

   [1] The respondent is an 'offender' for the purposes of the Act and at the time of the application made on 8 November 2022 was 'a serious offender under custodial sentence who is not a serious offender under restriction' within the meaning of s 35(1) of the Act:  see the definition of 'offender' in s 3 of the Act, par (b) of the definition of 'serious offender under custodial sentence' in s 3 of the Act and the definition of 'serious offender under restriction' in s 3 of the Act.

4. On 23 November 2022 the PRB made a post-sentence supervision order in respect of the respondent under s 74D of the Sentence Administration Act 2003 (WA) (PSSO). The specified commencement date of the PSSO is 17 December 2022, this being the expiry date of the sentence imposed for the index offences. The specified expiry date of the PSSO is 16 December 2023.

5. On 9 December 2022 the hearing of the application for the orders pursuant to s 46(2) of the Act, the preliminary hearing, took place before Strk J.  Her Honour found that there were reasonable grounds for believing that the court might find that the respondent is a high risk serious offender[2] and therefore made orders as sought by the applicant under s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the Act.[3] Her Honour fixed 5 May 2023 for the hearing of the application for the restriction order under s 48(1) of the Act. It is apparent from her Honour's reasons for decision that her finding that there were reasonable grounds for believing that the court might find that the respondent is a high risk serious offender was based on her assessment of the risk of the respondent committing 'property offences that are often violent and directed towards vulnerable individuals, particularly when he engages in substance abuse'.[4]

   [2] Act, s 46(1).

   [3] The State of Western Australia v Blurton [2022] WASC 439.

   [4] The State of Western Australia v Blurton [44].

6. At the preliminary hearing Strk J adjourned the hearing of the application for an interim detention order, alternatively an interim supervision order, to be made in respect of the respondent to 16 December 2022.

7. On 16 December 2022, so the day before the expiry date of the respondent's sentence for the index offences, Strk J made an order pursuant to s 46(2)(c)(i) of the Act detaining the respondent in custody until the final determination of the restriction order application (interim detention order).[5]  Strk J made the interim detention order in light of the respondent's resistance to the making of an interim supervision order[6] and on the basis of her finding that the conditions of the PSSO would not 'adequately meet the requirements of community protection, as they do not appear adequate to meet the supervision and support needs of the respondent immediately upon his release'.[7] 

   [5] The State of Western Australia v Blurton[No 2] [2022] WASC 455 [16].

   [6] The State of Western Australia v Blurton[No 2] [4], [11]. The respondent resisted the making of an interim supervision order in light of the operation of s 74J(3) of the Sentence Administration Act.

   [7] The State of Western Australia v Blurton[No 2] [10].

8. On 23 January 2023 Strk J made an order under s 75 of the Act that an Occupational Therapist appointed by the Department of Justice (Department) be engaged to provide a report in relation to the respondent 'setting out their opinion, and the basis of that opinion, on questions and topics advised by the applicant, including in relation to the respondent's current functional limitations in activities of daily living, and recommendations regarding support required'.

9. On 4 April 2023 the applicant applied to adjourn the hearing of the restriction order application.  The adjournment application was made because one of the experts who was required under the orders made by Strk J on 9 December 2022 to provide a report for the purposes of the restriction order application had informed the applicant that he would be unable to provide his report prior to 5 May 2023.  The adjournment application was not opposed.  I allowed the adjournment application and at the request of the parties relisted the hearing of the restriction order application for 23 May 2023.

10. On 21 May 2023 the respondent's counsel informed the court by way of email that she was instructed to seek a further adjournment of the hearing of the restriction order application to a date after a confirmed National Disability Insurance Scheme (NDIS) Support Plan had been developed for the respondent.  The applicant did not oppose the respondent's request for the further adjournment.  Accordingly, on 23 May 2023 Lundberg J made orders by consent further adjourning the hearing of the restriction order application to 24 October 2023.

11. On 24 October 2023 the hearing of the restriction order application (application) took place before me.

Respondent's decision not to apply for an adjournment of the hearing of the application

1. The evidence adduced at the hearing of the application, to which I will refer in detail in these reasons, revealed that as at the date of the hearing various inquiries were being made as to possible accommodation options for the respondent in the community and also that further assessments of the respondent were being undertaken for the purpose of ascertaining if there was a basis for submitting a request for a review of the amount of funded support to be provided to him under the NDIS.  The evidence also revealed that there was considerable uncertainty in relation to if and when these inquiries and assessments would be completed and, if they were, what the results of them would be.  

2. At the conclusion of the evidence and prior to the commencement of closing addresses I flagged with the respondent's counsel the unlikelihood of me being able to find on the basis of the evidence adduced that any of the inquiries being undertaken on the respondent's  behalf in relation to accommodation options would result in accommodation being found for him and that consequently the application would necessarily need to be determined on the basis that the only accommodation available to him in the community was with his current partner.[8]  Despite me highlighting this issue and despite the state of the evidence generally, the respondent's counsel informed me that the respondent would not be seeking an adjournment of the application and that he had decided that he wanted to 'bite the bullet' and press on with the hearing of the application.[9]   

   [8] ts 108, 24 October 2023.

   [9] ts 108 - 109, 24 October 2023.

3. Taking account of the uncertainties revealed by the evidence in question and bearing in mind the history of this matter and the amount of time that he has already spent in prison under the interim detention order made by Strk J, the respondent's decision not to apply to adjourn the hearing on a part heard basis was understandable.

Evidence on the application

1. At the hearing of the application the applicant sought to tender pursuant to s 84(5) of the Act a Book of Materials comprising three volumes, volume 1 being dated 14 March 2023, volume 2 being dated 19 May 2023 and volume 3 being dated 12 October 2023.[10] 

   [10] Exhibit 1.

2. In seeking to tender volume 1 of the Book of Materials the State expressly resiled from placing any reliance on three of the documents contained in the volume.[11]  The State did not seek to tender the three documents.

   [11] Documents 8, 9 and 12.

3. The respondent did not object to the tendering of the Book of Materials on the basis that the three documents did not form part of the exhibit.  I therefore received as an exhibit volumes 1, 2 and 3 of the Book of Materials on the basis that the exhibit did not include the three documents contained in volume 1 on which the State did not rely.[12]   

   [12] Exhibit 1.

4. Volume 1 of the Book of Materials contains a variety of materials relating to the respondent including his criminal record, his prison records, his medical records, documents relating to his prior offences, and psychological and other reports. 

5. Volume 2 of the Book of Materials contains a number of reports and other documents prepared specifically for the purposes of the application including the following:

   1.A report prepared by Dr Edward Petch, Consultant Forensic Psychiatrist, dated 26 April 2023; [13]

   2.A High Risk Serious Offender Psychological Risk Assessment Report prepared by Dr Benjamin Bannister, Forensic Psychologist, dated 20 March 2023;[14]

   3.An email from Dr Bannister to the applicant's solicitor and to Ms Aimee Goode, a Senior Community Corrections Officer (CCO) and Team Leader within the Department's Community Offender Monitoring Unit dated 4 April 2023;[15]

   4.A Proposed High Risk Serious Offender Treatment Options Report prepared by Ms Tara Stagg, employed (previously) by the Department as a high risk serious offender Planning Manager, dated 19 May 2022;[16]

   5.A Functional Capacity Assessment prepared by Mr Jack Beer, Occupational Therapist, dated 4 April 2023; [17] and

   6.A Community Supervision Assessment Report prepared by Ms Julie Dabala, a Senior CCO within the COMU, dated 5 May 2023.[18]

   [13] Exhibit 1, vol 2, 519.  Dr Petch is a 'qualified expert' as defined in s 3 of the Act.  His report was prepared and obtained pursuant to s 46(2)(a) of the Act and in accordance with s 74 of the Act.

   [14] Exhibit 1, vol 2, 581.  Dr Bannister is a 'qualified expert' defined in s 3 of the Act.  His report was prepared and obtained pursuant to s 46(2)(a) of the Act and in accordance with s 74 of the Act.

   [15] Exhibit 1, vol 2, 606.

   [16] Exhibit 1, vol 2, 505.

   [17] Exhibit 1, vol 2, 495.

   [18] Exhibit 1, vol 2, 607.

6. Volume 3 of the Book of Materials contains the following:

   1.The respondent's first NDIS Plan dated 22 May 2023 for the period 22 May 2023 - 21 May 2024;[19]

   2.A letter from a delegate of the Chief Executive Officer of the National Disability Insurance Agency (NDIA) to the respondent dated 11 August 2023;[20]

   3.The respondent's revised NDIS Plan dated 21 August 2023 for the period 21 August 2023 - 20 August 2024;[21] and

   4.An updated Community Supervision Assessment Report prepared by Ms Dabala dated 11 October 2023.[22]

   [19] Exhibit 1, vol 3, 623.

   [20] Exhibit 1, vol 3, 637.

   [21] Exhibit 1, vol 3, 641.

   [22] Exhibit 1, vol 3, 656.

7. At the hearing of the application the applicant also tendered, without objection, the PSSO,[23] a Post-Sentence Supervision Order Report dated 3 November 2022,[24] an email from the COMU to the applicant's solicitor sent at 12.53 pm on 23 October 2023,[25] and an email from the COMU to the applicant's solicitor sent at 6.15 pm on 23 October 2023.[26] 

   [23] Exhibit 2.

   [24] Exhibit 3.

   [25] Exhibit 4.

   [26] Exhibit 5.

8. At the hearing of the application the applicant called Dr Petch, Dr Bannister and Ms Dabala to give supplementary oral evidence.  The applicant also called Ms Emma Cashmore, the Department's acting high risk serious offender Planning Manager.  The applicant called Ms Cashmore to give evidence in relation to the contents of Ms Stagg's Treatment Options Report, Ms Stagg having left the Department's employment.  

9. The respondent elected not to give or adduce any evidence on the application.

Relevant statutory provisions and applicable legal principles

1. I turn now to dealing in more detail with the provisions of the Act by reference to which the application must be determined as well as with the legal principles that are applicable to the determination of the application.

2. In relation to the applicable legal principles, in The State of Western Australia v ZSJ,[27] a case in which the State made an application under div 2 of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) but which, given the repeal of the DSO Act, fell to be decided under the provisions of the Act, Fiannaca J made the following observations (citations omitted):

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

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

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

   [27] The State of Western Australia v ZSJ [2020] WASC 330 [30] - [31].

3. I respectfully agree with Fiannaca J's observations.  In my opinion and having full regard to the recent decision of the High Court in Garlett v The State of Western Australia[28] which addressed the constitutional validity of aspects of the Act, much of the case law decided under the DSO Act in relation to applications made under div 2 of the DSO Act remains (with appropriate adaptation in cases involving non-sexual offences) relevant to the determination of applications for restriction orders under the Act. Accordingly, the cases to which I will refer in dealing with the legal principles applicable to the determination of the application will include cases that have been concerned with proceedings under the DSO Act.

   [28] Garlett v The State of Western Australia [2022] HCA 30.

4. Section 48 of the Act provides:

   Restriction orders

   (1)If the court hearing a restriction order application finds that the offender is a high risk serious offender, the court must -

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

   (b)except as provided in section 29, make a supervision order in relation to the offender.

   (2)In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community

5. The definition of the term 'high risk serious offender' is contained in s 7(1) of the Act.  Section 7(1) is in the following terms:

   An offender is a high risk serious offender if the court dealing with an application under this Act finds that it is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.

6. The term 'restriction order' is defined in s 3 of the Act to mean 'a continuing detention order' or 'a supervision order'.  A 'continuing detention order' is 'an order that the offender be detained in custody for an indefinite term for control, care or treatment'.[29]  A 'supervision order' is 'an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate in accordance with s 30'.[30]

   [29] Act, s 3 and s 26(1).

   [30] Act, s 3 and s 27(1).

1. As to the term 'serious offence' used in s 7(1), s 3 and s 5(1) of the Act provide that a 'serious offence' is an offence that 'is specified in Schedule 1 Division 1 of the Act', or 'is specified in Schedule 1 Division 2 and is committed in the circumstances indicated in relation to that offence in that Division'. Section 3 and s 5(2) provide that an offence is a 'serious offence' if it was an offence under a written law that has been repealed and the offender's acts or omissions that constituted the offence under the repealed provision would constitute a serious offence under s 5(1). Section 3 and s 5(4) provide that an offence against the law of any place outside Western Australia is a 'serious offence' if the offender's acts or omissions that constituted the offence under that law would have constituted a serious offence under s 5(1) or s 5(2) if they had occurred in Western Australia. Offences that were 'serious sexual offences' under the DSO Act come within the definition of a 'serious offence' under the Act because they are offences that are specified in sch 1 div 1 of the Act.[31]

   [31] Any further references to a 'serious offence' or to 'serious offences' should be read as references to a serious offence or serious offences as defined in the Act.

2. It follows from the definition of 'high risk serious offender' contained in s 7(1) that a finding under s 48(1) that an offender 'is a high risk serious offender', that is, a finding that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence, necessarily entails a finding that if the offender is not subject to a restriction order the community will not be adequately protected against an unacceptable risk that the offender will commit a serious offence.[32]

   [32] The State of Western Australia v West[No 6] [2019] WASC 427 [21]; The State of Western Australia v ZSJ [44].

3. If the court finds that an offender is a high risk serious offender it is not invested with a residual discretion to decline to make a restriction order.[33]  In these circumstances the question for the court is whether a continuing detention order or a supervision order should be made.[34]

   [33] Garlett v The State of Western Australia [72].

   [34] Act, s 48(1).

4. By reason of the definition of 'high risk serious offender' contained in s 7(1), before the court can find under s 48(1) 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'. 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.[35]

   [35] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 (28); The State of Western Australia v West [6] - [24]; The State of Western Australia v ZSJ [47].

5. 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.[36]  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. 

   [36] The State of Western Australia v West [No 6] [24]; The State of Western Australia v ZSJ [47].

6. Whether or not a risk that the offender will commit a serious offence is 'unacceptable' is a question that requires the court's judgment as to the likelihood of the offender committing the serious offence and the nature and extent of the harm that will be caused if the offender commits the serious offence.[37]  Further, whether a restriction order is 'necessary' to ensure the adequate protection of the community against the 'unacceptable risk' requires consideration of what would otherwise be the offender's entitlement to be at liberty, an entitlement not lightly to be denied.[38]  Accordingly, the court is required to perform an evaluative exercise by considering whether, having regard to the likelihood of the offender offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the offender has already been punished for the offences they have committed, it is necessary in the interests of the community to ensure that they are subject to further control or detention.[39]  In addition, although the requirement of an evaluation under s 7(1) depends upon the offender having been convicted of a serious offence, s 7(1) and s 48 do not envisage the possibility that a finding that an offender remains a high risk serious offender might be made to prevent the commission of a serious offence, whether of the same kind or another kind, unless the risk of further offending involves a real threat of harm to the community.[40]

   [37] Italiano v The State of Western Australia [2009] WASCA 116 [46]; The State of Western Australia v Newland [2018] WASC 344[12]; GBT v The State of Western Australia [2019] WASCA 40[21]; The State of Western Australia v West [No 6] [22]; The State of Western Australia v ZSJ [45]; Garlett v The State of Western Australia [73], [226].

   [38] Garlett v The State of Western Australia [73], [227]. As Quinlan CJ recognised in The State of Western Australia v D'Rozario [No 3] [2021] WASC 412 [21] there may be rare situations in which a court will find that it is not necessary to make a restriction order notwithstanding a finding that the offender poses an 'unacceptable risk', for example, where other external restraints (such as a post-sentence supervision order under the Sentence Administration Act) are sufficient to ensure adequate protection of the community from the risk.

   [39] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63]; GBT v The State of Western Australia [21]; The State of Western Australia v West [No 6] [22]; The State of Western Australia v ZSJ [45]; Garlett v The State of Western Australia [73], [226] - [227], [279]

   [40] Garlett v The State of Western Australia [84].

7. By reason of s 48(2), if the court finds that the offender is a high risk serious offender it is the need to ensure the 'adequate' protection of the community that is to be the paramount consideration for the court in deciding whether to make a continuing detention order or a supervision order in relation to the offender.  The use of the word 'adequate' indicates that a qualitative assessment is required.  It cannot be assumed that the most preventative action is detention and that therefore the protection of the community will always favour such an order.[41]  In this regard I respectfully adopt the following statements of Beech J (as his Honour then was) in Director of Public Prosecutions (WA) v DAL [No 2] which, although made in relation to review proceedings under the DSO Act, are equally applicable to the operation of s 7(1) and s 48(2) of the Act:[42]

   In choosing between an indefinite detention order or a supervision order, the fact that the paramount consideration is the need to ensure the adequate protection of the community does not exclude other considerations.  The use of the word 'adequate' indicates that a qualitative assessment is required.  In considering whether a supervision order would adequately protect the community, account must be taken of 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.  The [DSO Act] does not require that there be no risk of reoffending.  Such a requirement could never be met and would mean no person to whom the [DSO Act] applies would ever be released.  The question is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community.  That requires a weighing of the nature and degree of risk in the context of methods for the management and reduction of that risk.  If, after considering all the evidence, the court is left in doubt as to whether the conditions of a supervision order would adequately protect the community, because the paramount consideration is the need to ensure the adequate protection of the community, the court must expressly decline to rescind the continuing detention order.

   [41] Director of Public Prosecutions for Western Australia v Williams [63] - [64]; Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14]; The State of Western Australia v Newland [21]; The State of Western Australia v West [No 6] [26]; The State of Western Australia v ZSJ [51]; Garlett v The State of Western Australia [106].

   [42] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33]. Also adopted in The State of Western Australia v Narkle [2019] WASC 404 [13] and The State of Western Australia v West [No 6] [26].

8. The scheme of the Act requires that the court do no more than is necessary to achieve an adequate degree of protection of the community.[43]

   [43] The State of Western Australia v Latimer [2006] WASC 235 [24]; The State of Western Australia v Patrick [No 5] [2022] WASC 61 [56]; Garlett v The State of Western Australia [85], [229] - [230].

9. Section 7(2) of the Act provides that the State 'has the onus of satisfying the court as required by subsection (1)'.

10. Section 7(3) of the Act specifies the matters that the court must have regard to in deciding if an offender is a high risk serious offender for the purposes of s 7(1).  The matters specified are substantially identical to the matters that the court was, by s 7(3) of the DSO Act, required to have regard to in deciding whether a person was a 'serious danger to the community' within the meaning of the DSO Act.  The matters are as follows:

    (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;

    (j)any other relevant matter.

11. Although s 7(3)(g) 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 have been committed.  Nonetheless, past behaviour is often a good indicator of future conduct.

12. By s 48(1)(b) of the Act, the power of the court to make a supervision order is subject to s 29. Section 29 relevantly provides:

    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)…

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

14. Therefore, the effect of s 29(1) and s 29(2) of the Act is that the offender must satisfy the court on the balance of probabilities that they will substantially comply with the standard conditions set out in s 30(2) of the Act before the court can make a supervision order in relation to them.[44] 

    [44] Garlett v The State of Western Australia [103], [231].

15. For the court to be satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions of the supervision order, it must be satisfied that the offender will comply with the standard conditions in a manner and to an extent that will ensure the adequate protection of the community from the unacceptable risk of the offender committing a serious offence.[45]  Further, in determining if it is satisfied that the offender will substantially comply with each standard condition of the supervision order, the court must have regard not only to the constraints that will be imposed upon the offender by the other standard conditions, but also to the constraints that will be imposed upon the offender by all the other 'non-standard' conditions of the supervision order.[46]

    [45] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52]; The State of Western Australia v West [No 6] [29]; The State of Western Australia v ZSJ [56] - [58]; The State of Western Australia v Patrick [No 4] [2020] WASC 48 [109] - [111].

    [46] The State of Western Australia v ACJ [2021] WASC 219 [416]; Garlett v The State of Western Australia [103] - [104], [233].

Matters specified in s 7(3) of the Act

1. As I have indicated, in deciding if the respondent is a high risk serious offender I must have regard to the matters specified in s 7(3) of the Act.  I therefore turn to addressing the matters specified in s 7(3) of the Act.

The respondent's history of offending - s 7(3)(g)

1. The respondent has a long record of offending dating back to his childhood.  Much of his juvenile offending and all his adult offending has occurred in the context of entrenched problematic substance use.  He has spent a large portion of his life in detention and prison.

2. The respondent commenced committing offences when he was around 8 or 9 years old.  He continued to offend throughout his childhood years.  He was, as a child, convicted of among other things, numerous burglary, stealing, assault and breach of bail offences.

3. As an adult the respondent has been convicted of five serious offences within the meaning of the Act, specifically two offences of aggravated armed robbery contrary to s 392 of the Code, one offence of grievous bodily harm contrary to s 297 of the Code and the index offences. The respondent committed the two aggravated armed robbery offences in 2005. He committed the grievous bodily harm offence in 2015. He committed the index offences in 2019.

4. In addition to the five serious offences the respondent has as an adult been convicted of a significant number of other offences including burglaries on dwellings (on occasions aggravated), aggravated unlawful assault, unlawful assault occasioning bodily harm, stealing, stealing motor vehicles, criminal damage, breaching bail, breaching an intensive supervision order by non-compliance and breaching a suspended imprisonment order.

5. The respondent has been released on parole on seven occasions.[47]  He has only successfully completed two of his parole orders (25 October 1999 - 21 December 1999; 24 November 2001 - 25 March 2002).  He has breached the remainder of his parole orders by non-compliance and/or reoffending.  The last time he was released into the community on parole was during the period 12 November 2004 ‑ 14 September 2005.  He breached this order through continued use of illicit substances.

   [47] Pre-sentence Report dated 21 April 2020 (exhibit 1, vol 1, 323).

6. A summary of the facts of the respondent's serious offences and his other adult offences that have involved the infliction of violence is as follows.

Aggravated armed robbery x 2 - January 2005 (serious offences)

1. The facts of the first in time of the respondent's aggravated armed robbery offences were as follows.

2. At about 10.00 pm on 8 January 2005 the respondent, who was 26 years old, and a male co-offender attended a residential premises.  The elderly owners of the premises were home.  Two elderly guests were also present.  Either the respondent or his co-offender was armed with a broomstick and the other with a metal pole that was found at the premises. 

3. The respondent and his co-offender gained entry to the premises by forcing open the main bedroom window's flyscreen and then climbing in through the open window.  They searched the room stealing jewellery and clothes.  Either the respondent or his co‑offender went into the rear of the house armed with the broomstick and aggressively pointed it at the occupants demanding money.  One of the occupants picked up a chair to defend himself and either the respondent or the co-offender struck the occupant's arm with the broomstick twice before taking a handbag and fleeing.

4. On 1 June 2005 the respondent pleaded guilty to the offence as well as to an offence of aggravated burglary (which is not a serious offence under the Act).

5. Turning to the facts of the second in time of the respondent's aggravated armed robbery offences.

6. On 10 January 2005 the victim, who was 59 years old, was withdrawing money from an ATM.  The respondent approached the victim and struck him to the back of the head with a large clay brick.  The blow knocked the victim to the ground and resulted in him suffering a fractured skull and bleeding on his brain.  While the victim lay unconscious the respondent took his wallet from inside his jacket pocket and left the scene.

7. On 22 July 2005 the respondent pleaded guilty to the offence. 

8. On 22 July 2005 the respondent was sentenced for his three offences, that is for the offences committed on 8 January 2005 and for the offence committed on 10 January 2005.  He was sentenced to 5 years imprisonment for the first of the aggravated armed robbery offences, to 6 years imprisonment for the second of the aggravated armed robbery offences and to 3 years imprisonment for the burglary offence.  He was ordered to serve 3 years of the 6-year sentence before commencing to serve his 5-year sentence.  He was ordered to serve the 3-year sentence for the burglary offence concurrently with the other sentences.  The result was a total effective sentence of 8 years imprisonment.

Aggravated unlawful assault - October 2013

1. On 1 October 2013 the respondent, who was 35 years old, was with family members smoking cannabis.  An argument erupted between the respondent and the victim, his sister.  The respondent punched the victim once to her face.  The victim fell to the ground and grazed her elbow.  The respondent left the premises on foot.

2. On 8 October 2014 the respondent was fined for the offence.

Aggravated unlawful assault, aggravated unlawful assault occasioning bodily harm and grievous bodily harm (serious offence) - December 2015

1. On 23 December 2015 the respondent, who was 37 years old, was drinking with family members.  The respondent started acting angrily towards a female cousin.  The respondent punched his cousin in the head and pulled her hair.  It was this conduct that formed the basis of the respondent's offence of aggravated unlawful assault.

1. The respondent's sister witnessed the respondent's assault on his cousin.  The respondent's sister shouted at the respondent to leave.  The respondent rushed at his sister and punched her in the face with a closed fist which caused her lip to split.  He then shoved his sister into a wall where she fell to the ground.  It was this conduct of the respondent which comprised his aggravated unlawful assault occasioning bodily harm offence.

2. The respondent's brother‑in‑law, who had observed the respondent's assault on his sister, attempted to push the respondent away from his sister.  The respondent produced a steak knife and stabbed his brother‑in‑law to the left side of his body which resulted in his brother‑in‑law suffering a lacerated spleen and a punctured lung.  It was this conduct of the respondent which comprised his grievous bodily harm offence.

3. Having stabbed his brother-in-law the respondent fled on a bicycle.  The next morning the respondent attended the local police station and told police that he had stabbed someone the previous night.

4. On 16 December 2016 the respondent pleaded guilty to the unlawful assault offence in the Magistrates Court.  He was fined $2,500 for the offence.

5. On 27 March 2017, which was to be the first day of his trial, the respondent pleaded guilty to the aggravated assault occasioning bodily harm offence and the grievous bodily harm offence.

6. On 16 May 2017 the respondent was sentenced to 10 months imprisonment for his aggravated assault occasioning bodily harm offence and 2 years and 6 months imprisonment for his grievous bodily harm offence.  The sentences were ordered to be served cumulatively giving a total effective sentence of 3 years and 4 months imprisonment.  The commencement date of the sentences was backdated to 23 December 2015.

Index offences - September 2019 (serious offences)

1. The facts of the first in time of the index offences, specifically the aggravated robbery offence, were as follows.

2. At around 7.00 am on 15 September 2019 the respondent, who was 41 years old, and a male co-offender drove to an underground carpark at Burswood Casino.  The respondent got out of the vehicle and ran towards the 21-year-old female victim who was going to work.  The respondent shouldered the victim with substantial force, causing her to fall to the ground and to suffer bruising and grazing to her knees and shoulders.  The respondent pulled the victim's handbag from her shoulder.  The respondent ran back to his vehicle and he and the co‑offender drove away.

3. Turning to the assault with intent to rob offence which is the second of the index offences.

4. Later on 15 September 2019 the respondent and the co‑offender drove to the Belmont Village Shopping Centre carpark.  They watched the female victim walk from the shopping centre into a takeaway restaurant and then waited for her to leave the restaurant.  When the victim came out of the restaurant and was walking across the carpark, either the respondent or his co‑offender got out of their vehicle, walked past the victim, and then turned around and ran directly at the victim from behind knocking her to the ground with force.  While the victim was on the ground the respondent or his co‑offender vigorously pulled at the victim's handbag with sufficient force to break the strap off the bag.  The respondent or his co-offender also took hold of the victim's bra strap causing it to break as well.

5. During the struggle the victim held onto her bag and screamed loudly.  Patrons from the nearby Belmont Tavern heard her cries for help and came to her assistance.  The respondent and his co‑offender got back into their car and fled the area. 

6. As a result of the incident the victim sustained injuries to her elbow and minor bruising to her upper arm.  In addition her mobile phone was damaged.

7. On 2 July 2020 the respondent pleaded guilty to the index offences.  As I have already indicated, on the same date he was sentenced to a total of 3 years and 2 months imprisonment for the offences with the commencement date of the sentence being backdated to 18 October 2019.

The respondent's personal circumstances and antecedents - s 7(3)(g)[48]

[48] Psychological report prepared by Ms Jane Sampson, Clinical and Forensic Psychologist, dated 13 April 2020 (exhibit 1, vol 1, 315, par 2 - 9); Psychiatric Report prepared by Dr Kelly Palmer, Consultant Psychiatrist, dated 21 April 2020 (exhibit 1, vol 1, 327, par 11 - 23); Psychiatric report prepared by Dr Petch dated 26 April 2023 (exhibit 1, vol 2, 524 - 526); Community Supervision Assessment Report prepared by Ms Dabala dated 5 May 2023 (exhibit 1, vol 2, 607); Updated Community Supervision Assessment Report prepared by Ms Dabala dated 11 October 2023 (exhibit 1, vol 3, 656).

1. The respondent is 45 years old.

2. The respondent was born in Pinjarra.  He is one of eleven children born to one or both of his parents (some of his siblings were born to different fathers). 

3. The respondent lived with his parents, who were both dependent on alcohol and cannabis, during his very early childhood years.

4. When the respondent was a young child, certainly no older than 8, his parents separated (it is not clear precisely when his parents separated).

5. After his parents separated the respondent had a transient life moving between relatives, although he predominantly lived with his maternal grandparents.  However, when the respondent was 10 years old his grandparents died suddenly and in quick succession. 

6. After the death of his grandparents the respondent was placed in the care of various relatives and foster homes.  During this time he frequently absconded from the homes he was living in and started committing offences.  His parents made little effort to keep in contact with him.

7. As a teenager the respondent was exposed to substance use, violence and neglect at his various placements.  Further, his ongoing offending resulted in him spending a significant amount of time in juvenile detention.

8. The respondent's education was limited and disrupted.  He attended many schools as a result of his numerous placement relocations.  He truanted frequently.  He last attended school in year 6.

9. The respondent started to use cannabis and to inhale solvents from around the age of 10.  He continued this behaviour until his late teens.  He is a long term user of alcohol, methylamphetamine and heroin.  He has in the past immediately relapsed into substance abuse on being released from prison.

10. The respondent has never worked given that he has spent most of his life incarcerated.

11. The respondent has three adult children from previous relationships.  He has very little, if any, contact with his children.

12. Both of the respondent's parents live in the Perth metropolitan area.  Both are unwell.  The respondent currently has limited contact with his parents.

13. One of the respondent's sisters lives south of Perth and one of his brothers lives in the northern suburbs of Perth.  The respondent does not have contact with either sibling.

14. In 2019, one month before being remanded in custody for the index offences, the respondent commenced a relationship with a younger female, SW.  SW has two adult sons.  She lives in a unit in a suburb of Perth.

15. The respondent proposes to live with SW on being released from prison.  SW is agreeable to this occurring.  SW has a significant and entrenched alcohol abuse problem.

16. As a child the respondent suffered two head injuries.  He suffered the first of these injuries as a result of being hit by a car when he was 12 years old.  He required surgical repair to his skull with a metal plate.  He suffered the second of his head injuries from being hit with an iron bar in his mid‑teens.

17. On 27 July 2021 Ms Karen van Eden, a Clinical Neuropsychologist, undertook a comprehensive neuropsychological assessment of the respondent.  Ms van Eden undertook the assessment for the PRB.  Having undertaken her assessment Ms van Eden produced a report dated 11 August 2021.[49] 

    [49] Exhibit 1, vol 1, 474.

18. Ms van Eden concluded that the respondent's level of intellectual ability was in the 'Extremely Low range' (below 2^nd percentile) and that cognitively he functioned at the level of a mild intellectual disability.  She was of the opinion that there were multiple possible contributing factors to the respondent's intellectual disability including the head injury he suffered when he was 12 years old and early onset of drug use.   

19. Much more recently, on 4 October 2023 Ms Jess Tidmarsh, a Senior Occupational Therapist who has been assigned as the respondent's occupational therapist under the revised NDIS Plan, undertook a cognitive assessment of the respondent using the Addenbrookes cognitive screening tool (a tool used to test attention, memory, fluency, language and visuospatial skills).  The respondent scored poorly on the assessment.  According to Ms Tidmarsh the assessment revealed that the respondent has deficits in all areas assessed consistent with mental impairment with clear difficulties in the areas of executive functioning (working memory, impulse control, planning, time management and organisation, task initiation and self-monitoring).

The respondent's NDIS Plan - s 7(3)(j)[50]

[50] Exhibit 1, vol 1, 171 - 185; Exhibit 1, vol 1, 186 - 188; Exhibit 1, vol 2, 298; Treatment Progress Report prepared by Ms Korda (exhibit 1, vol 2, 340 - 341).

1. On 22 May 2023 the respondent's first NDIS Plan commenced.  A review of the first NDIS Plan was scheduled to take place prior to 21 May 2024.[51]

   [51] Exhibit 1, vol 3, 623; exhibit 4.

2. The respondent's stated goals under the first NDIS Plan included reconnecting with his partner and family, building his independence at home and in his community and gaining suitable employment.

3. The first NDIS Plan included funding of approximately $53,500 for Core Supports, that is, supports to assist with the respondent's everyday activities, his current disability related needs and his progress towards his goals.  The first NDIS Plan specified that Core Supports funding was to be used flexibly and had been provided to enable the respondent to engage in goal-related activities of his choice, and to 'be supported to practice the strategies and programmes recommended by [the respondent's] therapy team both at home and in community'. 

4. The Core Supports funding under the first NDIS Plan included an allocation of funding to cover 10 hours of drop-in weekly support for 'core social supports'.

5. The Core Supports funding under the first NDIS Plan included $1,606 for transport needs.

6. The first NDIS Plan also included funding of approximately $41,800 for Capacity Building Supports, that is, supports directed at building the respondent's independence and reducing his need for support over time.  The Capacity Building Supports funding included approximately $6,630 for 20 hours of specialist behaviour intervention support and for 10 hours of assistance in the development of a behaviour management plan.  The Capacity Building Supports funding also included approximately $13,330 for 70 hours of level 3 specialist support coordination to assist the respondent to implement his plan, resolve points of crisis, develop capacity and resilience, and engage with therapists and support workers.

7. After the commencement of the first NDIS Plan the NDIA reviewed the plan in light of the Functional Capacity Assessment Report prepared by the Occupational Therapist Mr Beer (referred to in more detail later in these reasons).  On or about 11 August 2023 a delegate of the Chief Executive Officer of the NDIA sent a letter to the respondent bearing that date advising the respondent of the outcome of the review of the first NDIS Plan in the following terms:[52]

   [52] Exhibit 1, vol 3, 637.

   I am writing to let you know the [NDIA] has made a decision about your home and living supports.  I have assessed your home and living needs based on information available to the NDIA.  The evidence I have reviewed in making this decision is:

   •Functional Capacity report by occupational therapist Jack Beer, 04.04.2023

   I have assessed your home and living supports and the outcome of my decision is:

   •Assistance with Daily Living (ADL).  In your decision, I have included 15 hours per week for individual support funding. 

   The reason for my decision is as below:

   A home and living request was submitted seeking eligibility Supported Independent Living (SIL) [sic] in preparation for release from justice facility. …

   I have determined that you are not eligible for SIL as there is insufficient evidence to suggest that 24/7 support and monitoring is required to complete activities of daily living.  The functional evidence details that you are independent in mobility, transfers, self‑care and meals.  There was no need identified or reported regarding overnight support in relation to disability.  All reports indicate that you prefer to reside with your wife at this time and there is no indication that you are prohibited from doing so.  It was further noted that a criminal history does not indicate disability‑related needs.

   I have decided that funding for daily drop‑in support for assistance with daily activities (ADLs) is most suitable at this time.  You are eligible to receive 15 hours per week of individualised support to assist with your transition into the community and build your capacity specifically around shopping, cleaning, laundry, maintenance as identified in the reports.  The evidence also indicates that you will require significant support to establish and maintain sustainable strategies that promote independence for daily life and assist you with your reintegration into the community.

8. The respondent's revised NDIS Plan following the review commenced on 21 August 2023 (revised NDIS Plan).[53]  A review of the revised NDIS Plan is scheduled to occur prior to 20 August 2024.

   [53] Exhibit 1, vol 3, 641.

9. The revised NDIS Plan is in substantially identical terms to the first NDIS Plan.  The differences are as follows:

   1.The revised NDIS Plan includes funding of approximately $85,600 for Core Supports (as opposed to approximately $51,925 under the first NDIS Plan), the increase apparently being attributable to the funding for 15 hours per week of ADL; and

   2.The revised NDIS Plan includes funding of approximately $11,640 for the 'increased social and community participation' component of Capacity Building Supports (as opposed to approximately $10,205) with the result that the total Capacity Building Supports funding under the plan is $43,255.

10. Given the allocated funding for 10 hours of drop-in weekly support for 'core social supports', the net result is that under the revised NDIS Plan the respondent will have 25 hours per week of one-on-one drop-in support to be used flexibly.[54]

    [54] Exhibit 4.

11. The revised NDIS Plan is based on the respondent living with SW in her unit.

Efforts by offender to address causes of offending behaviour including participation in rehabilitation programmes and effect on respondent of participation - s 7(3)(e) and s 7(3)(f)

1. In 1997 and again in 1999 the respondent completed a Skills Training for Aggression Programme.[55] 

   [55] Community Supervision Assessment Report (exhibit 1, vol 2, 609).

2. In 2001 the respondent completed the Male Group Programme to address his substance use.[56]

   [56] Treatment Completion Report (exhibit 1, vol 2, 513); Community Supervision Assessment Report (exhibit 1, vol 2, 609).

3. In 2003 the respondent completed a Managing Anger and Substance Abuse Programme.[57]  He engaged positively with the programme.

   [57] Managing Anger and Substance Use Programme Treatment Completion Report dated 5 November 2003 (exhibit 1, vol 1, 439).

4. In 2004 the respondent completed a Cognitive Skills Reasoning and Rehabilitation Programme.  However, he had limited understanding and comprehension of most of the course material.[58]

   [58] Cognitive Skills Reasoning and Rehabilitation Programme Completion Report dated 27 September 2004 (exhibit 1, vol 1, 442).

5. In 2010 while serving his sentence for the robbery offences committed by him in 2005, the respondent engaged in some 'pre-release counselling'.[59]  During the counselling the respondent expressed the view that the only viable option for him was to give up alcohol completely.  His stated management strategies were all abstinence orientated.

   [59] Treatment Completion Report (exhibit 1, vol 2, 510).

6. In 2011 the respondent declined to participate in the Violent Offender Treatment Programme (VOTP).[60]  His expressed reasons for doing so were that he did not want to move prison units and he was completing his finite sentence.

   [60] Exhibit 1, vol 2, 516.

7. In 2013 the respondent declined to participate in a Pathways (Substance Use) Programme.[61]  His expressed reasons for doing so were that he was doing his job in his unit and was doing his 'full time'.

   [61] Exhibit 1, vol 2, 517.

8. In 2015 the respondent completed a Think First Programme[62] although he struggled on numerous occasions to comprehend the course content.  In his completion report the programme's facilitator summarised the respondent's participation in the programme in the following terms:

   [The respondent] displayed a wide range of behaviours during the course.  At times he appeared positive and involved, while on many occasions he presented as disinterested and voiced negative opinions about the course.  As a result, it was sometimes difficult to gauge the depth of his understanding.

   [The respondent] appeared to make minor gains in the areas of Ability to Recognise that Problems Exist, Social Perspective Taking and Motivation to Change.

   [62] Think First Programme Completion Report dated 20 June 2015 (exhibit 1, vol 1, 444).

9. Later in 2015 the respondent again declined to participate in a Pathways (Substance Use) Programme.[63]  On this occasion his stated reasons for doing so were that he would be receiving visits from family and welfare and that he had done what he had set out to do, specifically complete the Think First Programme.

   [63] Exhibit 1, vol 2, 518.

10. During the period August 2018 - March 2019, so while serving his term of imprisonment for the offences of aggravated assault occasioning bodily harm and grievous bodily harm for which he had been sentenced on 16 May 2017, the respondent completed the VOTP.[64]  The VOTP was a 310 hour group treatment programme for high risk male offenders.  The treatment goals that were identified for the respondent related to the areas of emotional regulation/impulsivity, violence cycle/violence lifestyle, substance use, interpersonal relationships/stability of relationships, antisocial attitudes and beliefs, criminal peers and weapon use.  The respondent was also required to prepare a plan that would identify personal high risk situations and also a plan that addressed how he would manage his risks in the community and develop prosocial supports.

    [64] Violent Offending Treatment Programme Completion Report dated 17 April 2019 (exhibit 1, vol 1, 448).

11. In their completion report the facilitators of the VOTP summarised the respondent's engagement in the programme as follows: 

    It was clear from the beginning of the program that [the respondent] struggled in understanding the program concepts.  Facilitators observed the following: an overall lack of understanding of program content; an inability to stay on task; poor attention span; short-term memory difficulties; difficulty with information recall; limited understanding of program concepts; limited ability to link concepts or information, ability to self-reflect.

    …

    During the program [the respondent] did appear to try his best, and in spite of making little in the way of treatment gains, his program experience appears to have been a positive one.

    [The respondent] will need extensive support in the community and at the present time the community support is not adequate to meet his needs.  Whilst substance use has been influential in his offending behaviour, he negates future risk of this occurring again.  Substance use (drugs and alcohol) are viewed as a significant risk factor for future violent offending.

1. The respondent has very recently (that is, within the last few months) completed the short term 'Keeping Off It' alcohol and drug use course.  The respondent participated in the course voluntarily to assist him with relapse prevention.[65]

   [65] ts 97, 24 October 2023.

2. As is apparent from the above, save for doing a short relapse prevention course in the immediate lead up to the hearing of the application, the respondent has not attempted to address his alcohol and illicit drug use since 2003.

Reports prepared under s 74 and extent to which respondent cooperated in examinations - s 7(3)(a)

Dr Petch's evidence

Psychiatric Report

1. Dr Petch's report reveals the following.

2. Dr Petch interviewed the respondent on 24 April 2023.  The respondent was happy to be interviewed and attended the interview willingly.

3. Dr Petch did not detect the respondent to be suffering from any current symptoms of depression, anxiety or psychosis.

4. The respondent had little awareness of how he would cope in the community.  He did not think that he would have any problems.  He stated:

   I am too old to offend.  It always used to be fun and games but I cannot be imprisoned anymore.  I have responsibilities.  I cannot do drugs anymore.

5. The respondent told Dr Petch that he had never previously tried to stop taking drugs or to stop offending but that he now recognised that he had to do so.  He stated that he did not think that he needed any help or support to do so.  He stated:

   I have made a decision not to be high risk anymore.  Lots of people have done far worse than me out there.  I am an old man.  Us Aboriginals don't live long.  I need to spend the rest of my life not in prison.  I want to be with my woman and kids.

6. The respondent told Dr Petch that he would be 'pissed off' if he had to remain in prison.  He stated:

   They don't want to keep me in prison.  I will make them get mad at me straight away.

7. The respondent would not talk about what he would do to get prison authorities mad at him because he said that this might affect his freedom.

8. The respondent stated that he knew that he needed to do various programmes again which he had done already and found helpful.  He stated he was happy to do programmes.  He expressed the belief that the programmes would be run in the community.

9. Dr Petch reached some conclusions regarding the respondent's psychiatric diagnosis.  Dr Petch did so because the respondent's disorders will contribute to his risk of reoffending if they remain unmanaged and also because identification of the disorders will provide some avenues for intervention which have the potential to reduce his risk.

10. Dr Petch diagnosed the respondent with the following conditions:

    1.Intellectual disability;

    2.Substance use disorder;

    3.Emotionally unstable personality disorder; and

    4.Social personality disorder.

11. In relation to the respondent's intellectual disability, Dr Petch notes that there is evidence throughout the course of the respondent's life that he has suffered from a moderate intellectual disability.  In Dr Petch's view the respondent's deficits appear to be global and across multiple areas as evidenced by the results of psychological and neuropsychological assessments.  In his view there is not an area of the respondent's life which has not been significantly impacted by his intellectual disability.  In his view the consequences for the respondent of his disability have been profound. 

12. In Dr Petch's opinion the contributors to the respondent's disability to a greater or lesser extent are likely to have been alcohol use by his mother during gestation, idiopathic causes, acquired brain injury in childhood and later adulthood, as well as misuse of substances (inhaling, alcohol and drugs).  In Dr Petch's view these impairments are not reversable and may deteriorate with advancing age or further substance misuse or injury.  Dr Petch considers that some of the respondent's specific difficulties could be ameliorated with the correct type of support which would need to be intense and ongoing.

13. As to the respondent's substance misuse disorder, in Dr Petch's view the disorder is very severe and enduring although it is currently in remission by virtue of the respondent being in the controlled prison environment where these substances are not as readily available as in the community.  Dr Petch notes that the respondent has reverted to substance use quickly whenever he has been released into the community.  Dr Petch is of the view that the respondent's substance use has had a major impact on his life since he was about 10 years old. 

14. Dr Petch notes that the respondent has not been able to moderate his substance use in the community even though he has received some alcohol and other drug use interventions in prison and has participated in programmes in prison.  He notes that the programmes have not been effective for the respondent.  He considers that the respondent's substance misuse has contributed to his psychosocial instability, criminal lifestyle, financial difficulties and offending behaviour.  The respondent's substance use is, in Dr Petch's view, a major determinate of his risk of future serious offending.

15. In Dr Petch's view information to the effect that the respondent may not have comprehended or retained much of the information conveyed during programmes is entirely consistent with his intellectual disability.

16. In Dr Petch's opinion the respondent's insight into the severity of his substance misuse disorder is negligible.  He considers that without further intervention the risk of the respondent relapsing into substance misuse is very significant and likely to be almost immediate.

17. In Dr Petch's opinion there is evidence to suggest that the respondent has some of the features of an emotionally unstable personality disorder.  The symptoms of the disorder exhibited by the respondent include lengthy periods of low mood with mood instability, reactivity of mood, intense anger that he has found difficult to control (particularly when stressed or under the influence of intoxicating substances) stress related paranoid defensive reactions, unstable relationship formation, marked impulsivity as evidenced by his offending and substance misuse particularly when young, recurrent self-mutilating behaviour and episodes of harm.

18. In Dr Petch's opinion the respondent's mood instability might be usefully addressed through a trial of mood stabilising drugs.  Dr Petch notes that the respondent is unlikely to want to take such medication but that a trial may serve to diminish the extent and frequency of mood swings and allow him to regain a degree of control over his prevailing mood, anger and occasional but usually temporary suicidal ideations.

19. In Dr Petch's opinion the respondent may also benefit from exploring his sense of unease in relationships coupled and driven by low self‑esteem and shame.  He considers that to this end a psychological approach including individual tailored cognitive behavioural therapy or dialectal behavioural therapy coupled with a pharmacological approach may yield benefit and promote stability.  In his opinion any treatment which enhances the respondent's emotional stability may reduce his risk of serious offending.

20. With respect to the respondent's antisocial personality disorder, the respondent's problems are, according to Dr Petch, usually beyond the ability of mental health services to manage.  They are more effectively targeted through specific correctional or psychological programmes.  This includes the VOTP previously undertaken by the respondent. 

21. In Dr Petch's view the respondent has not fully benefited from the VOTP because it was not delivered at a level commensurate with his level of intellectual functioning.  It is therefore likely that the respondent did not comprehend or retain much of the course information. 

22. In Dr Petch's view the positive effects for the respondent of the VOTP and the other courses and programmes that he has undertaken are likely to be negligible and the effects on his risk of reoffending are likely to be 'next to non-existent'.

23. Dr Petch undertook an assessment of the risk of the respondent committing further violent offences.

24. In assessing the respondent's risk of reoffending Dr Petch, as part of using a structured professional judgment approach, made use of the Psychopathy Checklist-Revised (PCL-R) and the HCR-20 (version 3) (HCR-20).

25. The PCL-R is a reliable and valid rating scale to determine the presence of psychopathy rather than the risk of reoffending itself.  However, psychopathy is of interest because it is a robust correlate of crime, particularly violent crime.  Although the PCL-R is designed to measure the construct of psychopathy and is not designed to predict recidivism or violence, it is nevertheless a good predictor of violence risk particularly when used with other tools such as the HCR-20.

26. The respondent's scores on the PCL-R were in the lower range and did not meet the necessary threshold for a diagnosis of psychopathy to be made.

27. In making use of the HCR-20, Dr Petch identified the historical factors pointing to the respondent being at risk of committing further violent offences as including a history of problems of violence, other anti‑social behaviours, lack of employment, substance misuse, intellectual disability, personality disorder, violent attitudes, and a lack of response to treatment supervision.  He identified the current factors pointing to the respondent being at risk of committing further violent offences as including recent problems with insight, intellectual disability and poor response to treatment.  He identified present risk management items relating to the respondent to include future problems with professional services and plans, the respondent's living situation, the respondent's lack of personal support, the respondent's stress and coping difficulties and possibly difficulties with treatment or supervision.

28. In Dr Petch's opinion the respondent's intellectual disability is the most serious barrier to addressing his risk.  The programmes the respondent has undertaken have not been tailored to meet his needs and have therefore had a negligible impact on his risk of offending.  In Dr Petch's view the respondent does not have the intellectual capacity to reflect on his offending or the effects of his offending on his victims or himself.  Nor, in Dr Petch's view, does the respondent have the capacity to make connections relating to risk factors, how they may affect him and how the impact might be reduced.  In Dr Petch's view the effect of the respondent's intellectual disability is further compounded by his substance use disorder and personality disorder each of which on their own are significant factors that increase his risk of future offending but which combined can increase the risks exponentially.

29. In Dr Petch's opinion the respondent's inability to engage with previous periods of supervision is a serious concern.  On some occasions the respondent's failure to do so may have been deliberate but other occasions may be a reflection of his difficulties.  The respondent may not understand or remember conditions or appointments or be able to get to appointments.  The respondent's accommodation and living situation has always been somewhat precarious.  The respondent's peer group has also been unreliable and substance using with the result that he has been exposed to multiple situations in which offending and anti-social behaviour are the norm or perhaps even expected.

30. In Dr Petch's assessment, the propensity of the respondent to commit serious offences is underpinned by his intellectual disability, his substance use disorders and his personality disorders.  He considers that the respondent's propensity is largely driven by intoxication and that if this can be managed his overall risk is likely to be moderated. 

31. In Dr Petch's view, the risk of respondent relapsing into substance misuse is dependent on several factors.  These factors include the level of support he has, how he structures his days, the stability of his mood, how he copes with difficult and new situations, the status of his relationship, the stability of his accommodation, and the proximity of substance using peers and relations.  If these circumstances all remain optimal then in Dr Petch's view the risk of the respondent relapsing into substance misuse is reduced.  On the other hand, if they are unstable the risk of substance misuse will, in Dr Petch's view, escalate.

32. In Dr Petch's opinion there are five main approaches to reducing the respondent's relapse into substance misuse and consequential serious offending.  They are as follows:

    1.Treating the respondent's substance use through rehabilitation and ongoing psychological input;

    2.Optimising the respondent's other mental health conditions through ongoing treatment;

    3.Optimising the respondent's psychosocial functioning in the community through the provision of stable accommodation, programmes and activities tailored to meet his needs;

    4.Providing the respondent with very close ongoing supervision through the conditions of a supervision order including guidance on how to keep within the conditions; and

    5.Providing the respondent with daily support, occupational therapy and assistance to help him manage his intellectual difficulties.

33. In Dr Petch's opinion the support that the respondent receives will be vital if he is to maintain stability.  He considers that the respondent is likely to require up to 18 hours support a day.

34. In Dr Petch's opinion if any of the above five approaches to treatment are absent, the risk that the respondent will engage in further serious offending is likely to rise.  In Dr Petch's opinion even if all five approaches to treatment are implemented the risk that the respondent poses to the community remains significant.  Dr Petch is of this opinion because the respondent lacks the capacity to moderate his behaviour and his substance misuse in the community even if the full package of support is provided.

35. Ultimately, in Dr Petch's opinion as things currently stand there is a high risk that the respondent will commit 'future serious violence'.  In Dr Petch's opinion this risk is likely to increase in certain situations particularly if the respondent is inadequately supervised, supported or treated. 

36. In Dr Petch's assessment the respondent has little appreciation that the above approaches to treatment are needed for him to successfully remain in the community.  The respondent's overall understanding of his current situation is likely to be limited even if it is explained to him.  In addition, the respondent's capacity for remembering any explanation is limited.

37. In Dr Petch's opinion it would 'at the current time … be very difficult to adequately manage [the respondent's] risk in the community even if appropriate supervision conditions are put in place and interventions made to reduce the risk'.

38. In Dr Petch's opinion if the respondent is found to be a high risk serious offender and a continuing detention order is made, it will be necessary 'and only fair according to the principle of reciprocity' for the Department to deliver a tailor made individual programme to meet the respondent's needs during his period of ongoing detention.

39. If the respondent is found to be a high risk serious offender and released on a supervision order, Dr Petch recommends that the order contain conditions addressing the following so as to ensure 'early detection of warning signs should the risk start to escalate':

    1.Regular reporting requirements to the respondent's senior CCO;

    2.Occasional visits to the respondent's home environment to ensure his accommodation is appropriate;

    3.Random drug and alcohol testing (and a requirement to provide valid samples required);

    4.Review of the respondent's electronic devices to monitor his interactions and associations; and

    5.A requirement that the respondent disclose his existing and new relationships to the CCO.

40. In Dr Petch's opinion the CCO will need to be highly active.  The CCO will need to remind the respondent of his reporting obligations and engage with the respondent's supporting team to ensure that the members of the team are all aware of his reporting appointments.

41. In Dr Petch's opinion the respondent's risk of relapsing is likely to be reduced if he is required to remove himself from the company of, or not associate with, any person who has drugs, is suspected of having drugs or anyone who is using or suspected of using drugs.  The respondent needs to completely abstain from drugs and alcohol.  In Dr Petch's opinion a requirement that the respondent not enter licenced premises seems to be sensible at least until the respondent has completed the drug and alcohol rehabilitation programme.

42. In Dr Petch's opinion if a supervision order is made it will need to be long enough to enable the respondent to demonstrate enhanced motivation to change and ongoing ability to abstain, to permit new treatment to be delivered and to allow sufficient time for the respondent to demonstrate enhanced stability with ongoing treatment.  In his opinion the duration of the order would be likely to need to exceed two years.

43. Dr Petch identifies the following steps that should, irrespective of the outcome of the restriction order application, be taken to address the respondent's unmet treatment needs:

    1.Referral to a treating psychiatrist for consideration of treatment options for the respondent's ongoing mood instability and impulsivity (including a trial of mood stabilising medication and/or antidepressant treatment which he can tolerate and which may assist in reducing the intensity of his emotions and bring them under greater control);

    2.Referral to a psychologist for possible treatment with dialectical behaviour therapy;

    3.Referral for possible admission to a drug rehabilitation programme tailored to meet the respondent's very specific cognitive capacity (the programme could be prison based or residential community based and would need to cover relapse prevention, coping skills, anger management, and stress management); and

    4.Referral to a violence prevention programme tailored for his level of understanding and abilities.

44. Dr Petch considers that addressing the respondent's unmet treatment needs will likely reduce his risk of future offending.

Oral evidence

1. In his oral evidence Dr Petch maintained the material views and opinions expressed by him in his report.  He also gave the following supplementary evidence.[66]

   [66] ts 55 - 79, 24 October 2023.

2. In his opinion the risk that the respondent will commit a serious offence as defined in the Act in the absence of a restriction order is enduring and high.

3. The respondent's lack of awareness of the difficulties that he will face living in the community and his lack of insight into the severity of his substance use disorder are important matters.  They are important matters because they suggest that the respondent is less likely to accept treatment that is offered to him.  Without treatment the risk that he poses is likely to be even more enhanced.

4. His understanding from the information available to him is that SW is a user of drugs and alcohol, that there are other people that frequent SW's address who are also users of drugs and alcohol, and that there is quite a lot of drugs and alcohol present in the area of SW's address.  In these circumstances he thinks that the respondent will find it very difficult to abstain from alcohol and/or drug use if he lives with SW. 

5. He is aware that it is proposed that if the respondent is found to be a high risk serious offender and is released on a supervision order, the order will include conditions requiring him to remove himself from any situation where people are using alcohol and/or drugs.  Although he considers that conditions to this effect should be included in any supervision order for the respondent, he considers that if the respondent is released to live in accommodation where alcohol and/or drugs are being used he will find it almost impossible to comply with any such conditions.  In his view releasing the respondent to accommodation where drugs and/or alcohol are being used is almost setting him up for failure.  In his view, to put someone (the respondent) who has an inclination to use alcohol and drugs in a situation where these substances are readily available is a very high risk scenario.

1. It is not clear on the available information if the respondent obtained the bag of methylamphetamine that he swallowed during his attendance at his brother's funeral or on some other occasion.

2. On 15 August 2023 the respondent was subjected to urinalysis testing.  He produced a negative result for illicit substances. 

Analysis and decision

The relevant questions

1. Given the terms of s 48(1) of the Act, the questions for my determination are as follows:

   1.Is the respondent a high risk serious offender within the meaning of s 7(1) of the Act? and

   2.If the respondent is a high risk serious offender, should a continuing detention order or a supervision order be made in relation to the respondent?

The parties' submissions - summary

1. The applicant submits that I should find that the respondent is a high risk serious offender.  The applicant submits that the respondent has failed to discharge his burden of proving that he would, if released on a supervision order, substantially comply with the standard conditions specified in s 30(2)(d) and s 30(2)(f) of the Act.  The applicant submits that releasing the respondent on a supervision order will not ensure adequate protection of the community.  Accordingly, the applicant submits, if I find that the respondent is a high risk serious offender I should make a continuing detention order in respect of him.

2. Although the applicant submits that if I find that the respondent is a high risk serious offender I should make a continuing detention order it has, in recognition of the possibility that I will not accept the submission, provided a draft supervision order containing the 41 conditions that it contends should be included in any supervision order (draft supervision order).  The draft supervision order is a refined and amended version of the conditions proposed for my consideration by Ms Dabala, this being the explanation for it containing 41 conditions as opposed to the 47 conditions put forward by Ms Dabala.  Nonetheless, the draft supervision order substantially incorporates all of the material conditions proposed for my consideration by Ms Dabala.  The conditions contained in the draft supervision order are set out in annexure A to these reasons.

3. The respondent does not attempt to argue that I should find that he is not a high risk serious offender.  The respondent concedes that the available evidence is sufficient to establish that he is a high risk serious offender.  Of course, the fact that the respondent takes this position does not absolve me from the responsibility of determining the question for myself on the basis of the evidence before me.

4. The respondent submits that he has discharged his burden of proving that he will substantially comply with the standard conditions of a supervision order.  He submits that I should, on the evidence, find that the community will be adequately protected from the risk that he poses by releasing him on a supervision order containing the conditions set out in the draft supervision order save for condition 13.  The respondent does not agree to the inclusion in any supervision order of condition 13 of the draft supervision order.

5. I note that in the course of making her closing submissions the respondent's counsel made a number of assertions, based on the respondent's instructions, in relation to SW's intentions regarding her alcohol consumption and the proposed address.  No evidence was adduced in support of these assertions.  In the absence of supporting evidence I am not willing to place any weight on the assertions.

Is the respondent a high risk serious offender?

1. In determining the question whether the respondent is a high risk serious offender it is, I think, important to bear in mind the following observations of the plurality in Garlett v The State of Western Australia as to the purpose of the Act:[82]

   The purpose of a legislative regime, such as…the [Act], is discernibly distinct from the imposition of retribution or deterrence pursued by the criminal law. To the extent that detention or supervised release is part of the legislative regime, the character of the curtailment of the liberty of the individual offender under the regime can be seen to be protective rather than punitive because any curtailment of liberty must be supported by the risk evaluation contemplated by s 7 of the [Act]. In that evaluation, considerations of retribution and deterrence, central to sentencing by way of punishment under the common law, have no part to play. In addition, any curtailment of liberty must be no greater than is necessary adequately to protect the community from the demonstrated unacceptable risk of harm to the community…[83]

   [82] Garlett v The State of Western Australia [55].

   [83] The State of Western Australia v Latimer [49]; The State ofWestern Australia v ACJ [32]; The State ofWestern Australia v Quartermaine[No 2] [2021] WASC 267 [14]; The State ofWestern Australia v Dragon[No 2] [2022] WASC 189 [15].

2. I have already stated my finding that the respondent is at high risk of committing violent offences that are serious offences as defined in the Act if he is not subject to a continuing detention order or a supervision order.  I have also already stated my finding as to the types of violent serious offences that the respondent is at high risk of committing if he is not subject to a continuing detention order or a supervision order.  On the basis of these findings and having regard to all other matters specified in s 7(3) of the Act to which I have referred, including the nature and extent of the violence that the respondent is at high risk of inflicting in the course of committing a serious offence, I am satisfied to a high degree of probability that the risk that the respondent will commit a serious offence is unacceptable and that it is necessary to make a continuing detention order or a supervision order in relation to the respondent to ensure adequate protection of the community against the risk.  I am so satisfied notwithstanding that the respondent has already been punished for the offences he has committed.  It follows that I find that the respondent is a high risk serious offender.

3. I note, as is apparent from what I have said in the preceding paragraph, that I am satisfied to a high degree of probability that the conditions of the PSSO will not ensure the adequate protection of the community from the unacceptable risk that the respondent presents.

Continuing detention order or supervision order?

1. The question that remains for my determination is whether the respondent should be detained pursuant to a continuing detention order, or whether he should be released into the community on a supervision order.  In determining this question I must be conscious of the need to do no more than is necessary to ensure adequate protection of the community.

2. As I have previously indicated, by s 29(1) and s 29(2) of the Act I cannot make a supervision order unless the respondent has satisfied me on the balance of probabilities that he will substantially comply with the standard conditions of the order.

3. It is patently apparent from the evidence before me that the primary risk factor for the respondent is his use of alcohol and/or illicit drugs.  If the respondent, once he is in the community, relapses into drinking alcohol and/or taking illicit drugs he will be at imminent high risk of committing a serious offence of the type that I have identified.  Indeed, in my assessment if the respondent, once he is in the community, relapses into drinking alcohol and/or taking illicit drugs it will be almost inevitable that he will quickly proceed to commit a serious offence of the type that I have identified.  In short, the respondent, if he is going to be able to live in the community without committing serious offences, must abstain from alcohol and illicit drugs.

4. It is also patently apparent on the evidence before me that the respondent, due largely albeit not exclusively to his intellectual disability, lacks insight into the severity of his alcohol and illicit drug problem, and also lacks the capacity to refrain of his own volition from drinking alcohol and/or taking illicit drugs.  This fact is amply demonstrated not only by the respondent's numerous past immediate relapses into substance use on being released from previous prison terms, but also by his recent conduct in obtaining illicit drugs while at his brother's funeral and ingesting illicit drugs notwithstanding that he knew that the hearing of the application was soon to take place.

5. It follows, given the link between the respondent's substance use and his risk of committing serious offences, that the determination of the question whether releasing the respondent on a supervision order will ensure adequate protection of the community against the risk that he will commit a serious offence of the type that I have identified turns very much on an assessment of whether the conditions of a supervision order will be sufficient to prevent him from relapsing into alcohol and/or illicit drug use.

6. The respondent, if he is released on a supervision order containing the conditions set out in the draft supervision order, will be subject to a high level of control and supervision.  Moreover, the conditions will be aimed directly at the respondent's risk factors.  Of particular relevance in this respect is that the respondent will, if he is released subject to the conditions set out in the draft supervision order, be prohibited from using illicit drugs and/or alcohol, be required to submit himself for urinalysis and other testing (for example, breath analysis) for alcohol and prohibited drugs as directed, be prohibited from attending licenced premises and be prohibited from remaining in the presence of persons using or affected by alcohol or illicit drugs. 

7. In addition, the respondent will, if released, have the benefit of support services provided to him under the revised NDIS Plan which will include the 25 hours per week of one-on-one drop-in support. 

8. Of course, the revised NDIS Plan is not put in place for the purpose of reducing the risk of the respondent committing further offences.  It is put in place to support the respondent to live in the community with his intellectual disability.  Nonetheless, the fact remains that the addressing of the respondent's disability needs by the provision of support pursuant to the revised NDIS Plan will potentially produce, as an incidental benefit, a reduction in the risk of the respondent relapsing into alcohol and/or illicit drug use and consequently a reduction in the risk of him committing further serious offences.

9. It is possible that the revised NDIS Plan will be reviewed and that the review will result in increased funding sufficient to permit an increase in the amount of one-on-one support to be provided to him.  It is also possible that if he is released the respondent will have the benefit of support services provided by ReSet.  However, on the evidence before me I am unable to satisfy myself on the balance of probabilities that either of these things will occur.  

10. The matters referred to in par 330 - 332 above might be thought to support the conclusion that releasing the respondent on a supervision order containing the conditions set out in the draft supervision order will ensure adequate protection of the community.  However, there are significant countervailing considerations.

11. First, the respondent, due largely if not exclusively to his intellectual disability, has no real understanding of, or insight into, his unmet treatment needs, his risk factors, or the level of risk that he presents to others.  He does not have the intellectual capacity to reflect on his offending or on the effect of his offending on others.  He does not consider that he is at risk of committing further serious offences.  He does not consider that he will have any difficulty coping with living in the community.  All these factors point to the conclusion that he will not be receptive to supervision or appropriate intervention in the community.

12. Second, the respondent has in the past been unable to successfully engage with periods of supervision in the community.

13. Third, Dr Petch's opinion is that even if a full package of support, comprised of appropriate supervision conditions and appropriate interventions, is put in place for the respondent it will still be very difficult to manage the risk that he poses to the community.  Although Dr Petch's expression of expert opinion on this point is not determinative of the question whether the respondent should be released into the community on a supervision order, this being a question that it is ultimately my responsibility alone to determine, his opinion is obviously deserving of some weight.[84]  I note further in this context that in Dr Petch's opinion the level of daily support that will be able to be provided to the respondent under the revised NDIS Plan is not sufficient to meet the respondent's needs and is not sufficient to adequately manage the risk of the respondent relapsing into alcohol and/or drug use and reoffending. 

    [84] Director of Public Prosecutions (WA) v GTR [62].

14. Fourth, there is the issue of the respondent's proposed accommodation.

15. It is beyond question that if the respondent's risk of committing further offences is to be adequately managed under the conditions of a supervision order he will need to have available to him suitable accommodation. 

16. Although the evidence reveals that there are various inquiries and applications have been made on the respondent's behalf in an attempt to source suitable accommodation for him, I am unable, on the basis of the evidence, to find that any such accommodation will become available in the foreseeable future.  The result is that the only accommodation that is currently available to the respondent is the proposed address. Unfortunately, the proposed address cannot, in my opinion, taking into account the respondent's risk factors, be described as suitable. 

17. The evidence establishes that SW has significant problems of her own with at least alcohol, if not illicit drugs also.  The evidence also establishes that the proposed address is a place where SW and others have engaged in excessive alcohol consumption and/or illicit drug use.  Moreover, and quite obviously, a condition cannot be imposed that prohibits SW from consuming alcohol and/or illicit drugs in her own home.  Accordingly, if the respondent is released on a supervision order with a condition that he live at the proposed address it is near on inevitable that he will not only be regularly exposed to alcohol and/or drug use by SW and others, but also that he will have easy access to these substances.  In these circumstances and bearing in mind the respondent's lack of capacity to refrain of his own volition from using alcohol and illicit drugs I am, consistently with the opinion expressed by Dr Petch, satisfied that the respondent, if he is released on a supervision order on the condition that he live at the proposed address, will almost inevitably relapse into alcohol and illicit drugs.  I am so satisfied even taking into account the proposed conditions directed at preventing the respondent from engaging in such behaviour.  Further, and as I have said, once the respondent relapses into alcohol or illicit drug use the risk of him quickly proceeding to commit further violent serious offences of the type that I have identified will be high. 

18. Further, and for reasons that are apparent from what I have said in the previous paragraph, if the respondent is released on a supervision order on the condition that he live at the proposed address it will be near on impossible for him to comply with proposed conditions 31 and 32 of the draft supervision order which require him to remove himself from the presence of persons consuming alcohol or illicit drugs and, if illicit drugs are being used  at his residence, to remove himself from 'that part of' the residence in which the consumption is taking place.

19. For the reasons I have stated, the proposed address is not suitable accommodation option for the respondent in the community.  The risk associated with allowing the respondent to live in a house in which alcohol and/or illicit drugs are available and being used taken in conjunction with the respondent's lack of ability to control his use is simply too great to allow him to live at the proposed address.

20. In expressing the above conclusion I realise that even if the respondent had available to him accommodation in the community that enabled him to live separately from SW, it is very likely that he would still have regular contact with SW and consequently still be exposed to her alcohol and/or illicit drug use.  She is, after all, his partner and it would, in my view, be unrealistic to impose as a condition of a supervision order a condition that he not have any contact with her.  However, if the respondent had his own separate accommodation this would, if nothing else, likely reduce the extent to which alcohol and/or illicit substances were readily available to him.

21. The end result is that the respondent does not currently have available to him suitable accommodation in the community.  In other words, one of the things that both Dr Petch and Dr Bannister clearly consider is essential to the management in the community of the respondent's risk of offending is absent.

22. Taking into account the matters referred to in par 335 - 345 in combination with each other, I am unable to satisfy myself on the balance of probabilities that if the respondent is released on a supervision order he will substantially comply with the standard conditions of the order specified in s 30(2)(d) and s 30(2)(f) of the Act.  That is, I am not satisfied that the respondent will comply with the standard conditions specified in s 30(2)(d) and s 30(2)(f) in a manner and to an extent that will ensure adequate protection of the community from the unacceptable risk of the respondent committing a serious offence of the type that I have identified.

23. It necessarily follows that I am also not satisfied that the need to ensure adequate protection of the community can be met by releasing the respondent on supervision order containing the 41 conditions proposed in the draft supervision order.  Despite the extensive and stringent nature of the conditions I am not, taking into account the matters referred to in par 335 - 345 above in combination with each other, satisfied that the conditions will ensure the adequate protection of the community from the risk that the respondent currently poses.

24. In my opinion the serious offences that the respondent is at a high risk of committing have a sufficiently high degree of seriousness and a sufficiently high magnitude of harm to justify a restriction order in the form of a continuing detention order.[85]

    [85] Garlett v The State of Western Australia [282].

25. I will therefore make a continuing detention order in respect of the respondent pursuant to s 48(1)(a) of the Act.

Recommendations

1. Under s 64(2)(a) of the Act the applicant is required to ensure that a review of the continuing detention order that I am going to make is carried out as soon as practicable after the expiration of 12 months from the date of the commencement of the order.  Therefore, a review of the respondent's detention under the continuing detention order that I am going to make will occur relatively shortly after the expiration of 12 months from today's date.

2. It is imperative that prior to the review of the respondent's continuing detention order every effort is made to find for him suitable, preferably supported, accommodation in the community so that if at the review he is found to be suitable for release on a supervision order the absence of accommodation will not prevent this from occurring.  In particular, the respondent should, in my view, be referred to the Uniting WA Supported Accommodation Programme and placed on the programme's waitlist as quickly as possible so as to increase the likelihood of accommodation under the programme being available to him at the time of the review.

1. It is also imperative that prior to the review of the respondent's continuing detention every effort is made to ensure that the precise extent of funding and support that will be available to the respondent via the NDIS if he is released into the community is finalised.  To this end any application to review the revised NDIS Plan should be proceeded with as quickly as possible.

2. As to the issue of future treatment, the evidence of Ms Stagg and Ms Cashmore to the effect that the Department does not deliver interventions in prison tailored to persons who have an intellectual disability is very concerning.  As this case demonstrates, the State has enacted legislation that can result in the continued detention of a person whose high risk of committing a serious offence is due in no small part to their intellectual disability.  This being the position it is my view (which is also the view that is in substance expressed by Dr Petch in his report) that the State's instrumentalities have an obligation to ensure that when a person with an intellectual disability is detained under the Act and the person's disability is a factor that contributes to their high risk of committing a serious offence, there are available to the person forms of intervention that are tailored to their needs and are directed at reducing the risk that they pose to the community.  It follows, in my view, that those responsible for the respondent's 'control, care or treatment'[86] under the continuing detention order have an obligation to do everything possible to secure the services of a suitably trained and experienced psychologist who is able to deliver to the respondent a form of intervention that is at a level appropriate for his intellectual abilities and that will help him address his various criminogenic needs.

   [86] Act, s 26(1).

3. Pending the identification and appointment of the psychologist referred to in the previous paragraph, the respondent should at least be re‑referred to the FPIT so as to provide him with the opportunity to engage in further counselling which, if not aimed at addressing his criminogenic needs, is at least directed at preparing him for release and providing him with strategies to deal with high risk situations. 

4. For the reasons explained by Dr Petch and Dr Bannister, it is unlikely that the respondent will benefit materially from participating in further group based programmes unless the participation is accompanied by individual support provided by a psychologist who has experience dealing with people with an intellectual disability.  Nonetheless, even in the absence of such additional support efforts should still be made to engage the respondent in programmes directed at addressing his violence and substance use.  While any gains made by the respondent as a result of his participation in such programmes may be minimal, some gains will be better than none.  Obviously, the facilitators of any programmes that the respondent does participate in will need to do what they can to convey to him the essential concepts of the programme in a way that will be comprehensible to him.

5. In accordance with Dr Petch's recommendations, the respondent should be referred to a psychiatrist for consideration of treatment options for his ongoing mood instability and impulsivity.

Order

1. I make a continuing detention order in respect of the respondent pursuant to s 48(1)(a) of the Act.

ANNEXURE A

STANDARD CONDITIONS REQUIRED BY THE HRSO ACT

1. Report to a Community Corrections Officer (CCO) at the East Perth Adult Community Corrections Centre, 30 Moore Street, East Perth within 48 hours of the order being issued and advise the officer of your current name and address;

2. Report to and receive visits from a CCO at such times and at such places as reasonably directed by that CCO;

3. 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;

4. Be under the supervision of a CCO and comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32 of the High Risk Serious Offender Act 2020 (WA));

5. Not leave, or stay out of, the State of Western Australia without the permission of a Community Corrections Officer;

6. Not commit a serious offence during the period of the Order;

7. Be subject to electronic monitoring under section 31 of the High Risk Serious Offenders Act 2020 (WA).

ADDITIONAL CONDITIONS

Residence

1. Take up residence at [the proposed address] 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

1. On the day of release report to a Community Corrections Officer at the prison or at a location specified by a CCO and allow for fitting of electronic monitoring equipment and completion of intake;

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

Attendance at programs or treatment or support services

1. Attend all appointments and receive visits from, and engage with, any medical practitioner, psychiatrist, social worker, psychologist, mentor, counsellor, support service or support person as reasonably directed by a CCO;

2. 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;

3. Undertake any medication regime in accordance with a medical practitioner's direction, and to comply with all testing to monitor your compliance with that treatment as directed by a CCO;

4. Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of re‑offending and compliance with treatment to the Department of Justice;

Reporting to WA Police

1. Report to the Officer-in-Charge of the Serious Offender Management Squad (SOMS) at the Hatch Building, 144 Stirling Street, PERTH WA 6000, or his delegate at a nominated Police station within 48 hours of your release from custody and thereafter report to and receive visits from Police at times and locations as directed by the Officer‑in‑Charge of SOMS or his/her delegate;

2. If requested by a WA Police Officer, permit that officer (and any other officer assisting that officer) to search your person, and to enter and search your residence and vehicles for the purpose of monitoring your compliance with your obligations under this Order and allow any such officer to seize any items that the officer believes, on reasonable grounds, may constitute evidence of a contravention of any condition of the Order;

3. Remain at your premises and/or vehicle at all times during any search being conducted under condition 16 of this Order.

Disclosure/Exchange of Information

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

Restrictions on contact with victims

1. Have no contact, directly or indirectly, with the victim and/or any 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 or your CCO;

2. Report to the CCO and WA Police any direct or indirect contact with the victims of your violent offending within 48 hours of such contact occurring;

Curfew

1. Be subject to a curfew, pursuant to section 32 of the High Risk Serious Offenders Act 2020 (WA), such that you are to remain at and not leave your approved address as directed by a CCO from time to time;

2. 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;

3. 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;

Criminal conduct

1. Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014 and your use is in accordance with the instructions of the provider;

2. Not commit any other criminal offence where the maximum penalty for which includes imprisonment;

Prevention of high-risk situations

1. 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;

2. Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a WA Police Officer including accompanying such persons to an appropriate location for such testing to take place;

3. Provide a valid sample pursuant to condition 27;

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

   a)For the purpose of averting or minimizing a serious risk of death or injury to yourself or another person;

   b)For a purpose, and for a duration, approved in advance by a CCO;

   c)On the order of a CCO or WA Police Officer;

1. Not purchase, or possess, or consume or use alcohol;

2. Not to remain in the presence of any person who you know, or ought to know, to be affected by prohibited drug or under the influence of alcohol, unless the identity of such person is approved in advance by a CCO;

3. Not remain in any place where you know or ought to know that 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;

4. Not to associate with Daniel Edward Taylor;

5. Report at your next contact with your CCO, the formation of any social association (of more than 2 contacts by any means), domestic, romantic, sexual or otherwise intimate relationship by you with any person;

6. When and as directed by your CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence an ongoing social association (of more than 2 contacts by any means), domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer;

7. Within 48 hours of the commencement of this Order, and following each occasion that you obtain a new device, on the next occasion that you report to a CCO, advise a CCO of every computer, telecommunication and electronic device capable of storing digital data or information, that is in your possession or control, or that is used by you, whether or not it is capable of being connected to the internet, and the location of that device.

8. Not allow any person other than a CCO or WA Police Officer to have access to any computer, telecommunication and electronic device referred to in condition 36 without prior approval from a CCO;

9. Enable device locking or password access to all of your computer, telecommunication and electronic devices, and not provide or disclose such passwords or other means used to access any computer, telecommunications and electronic device referred to in condition 36, or any online accounts, to any person other than a CCO or WA Police Officer;

10. Upon request from a CCO or WA Police Officer, permit a CCO or WA Police Officer at any location reasonably nominated by them, to have access to any computer, telecommunication and electronic device in your possession or control that is capable of storing digital data or information, for the purpose of investigating your computer, telecommunication and electronic device related activities, and provide to the CCO or WA Police Officer upon request any passwords or any other means used to unlock or access the device.  Should any other entity be required to access a device for instances such as technical advice, approval must be sought in advance from a CCO;

11. Not delete or otherwise remove or disguise, or cause or allow to be removed or disguised, any data or information including but not limited to data relating to telephone or other calls, Short Message Service (SMS), internet search histories or logs capable of identifying your activities on any device referred to in condition 39, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO; and

12. Not assault, threaten, insult or behave in an intimidating manner to a member of the Departmental staff or any agent providing a service on behalf of the Department of Justice.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

JP

Research Associate to the Honourable Justice Derrick

2 NOVEMBER 2023