The State of Western Australia v Brown - [2022] WASC 138

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- BROWN [2022] WASC 138
CORAM:   DERRICK J
HEARD:   22 APRIL 2022
DELIVERED          :   22 APRIL 2022
PUBLISHED           :   27 APRIL 2022
FILE NO/S:   SO 5 of 2022
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant

AND

DANIEL RALPH BROWN
Respondent

Catchwords:

Criminal law - High Risk Serious Offenders Act 2020 - Restriction order application - Preliminary hearing - Whether there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender - Whether an interim detention order or an interim supervision order should be made pending determination of the application - Turns on own facts

Legislation:

Criminal Code (WA)
High Risk Serious Offenders Act 2020 (WA)
Sentencing Administration Act 2003 (WA)

Result:

Orders made pursuant to s 46(2)
Interim supervision order made

Category: B

Representation:

Counsel:

Applicant	:	Ms F M Allen
Respondent	:	Mr T J McCulloch

Solicitors:

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

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

The State of Western Australia v CA [2020] WASC 164
The State of Western Australia v Hart [2021] WASC 205
The State of Western Australia v Lynch [2022] WASC 104
The State of Western Australia v Ratcliff [2021] WASC 31
The State of Western Australia v Ugle [2022] WASC 91

DERRICK J:

(This judgment was delivered extemporaneously and has been edited from the transcript.)

Introduction

On 3 March 2022 the State of Western Australia made an application for orders to be made in relation to Daniel Ralph Brown (the respondent) as follows:
1.A restriction order under s 48(1) of the High Risk Serious Offenders Act 2020 (WA) (the Act) (the application for this order being made pursuant to s 35(1) of the Act);[1]
2.Orders pursuant to pursuant to s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the Act requiring, among other things, that the respondent undergo examination by a psychiatrist and qualified psychologist for the purpose of preparing reports to be used on the hearing of the restriction order application; and
3.An order pursuant to s 46(2)(c)(i) of the Act that the respondent be subject to an interim detention order until the final determination of the restriction order application, or alternatively an order pursuant to s 58(5) of the Act that the respondent be subject to an interim supervision order until the final determination of the application.
[1] The respondent is an 'offender' for the purposes of the Act and 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. Given that the respondent is to be released on 26 April 2022, the application was, as required by s 35(3) of the Act, made within a period of 1 year of the date on which the respondent is to be released from custody.
I have today heard the State's application for the orders pursuant to s 46(2) of the Act. Accordingly, the hearing that has taken place before me is a preliminary hearing conducted pursuant to s 46(1) of the Act.
The respondent concedes that the requirements of s 46(1) are met and therefore does not oppose the application for the orders under s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the Act. Nonetheless, it is, of course, still necessary for me to examine the evidence and to satisfy myself that the orders sought should be made.
The State contends that if I find that the requirements of s 46(1) are met the respondent should be detained in custody until the determination of the restriction order application. In the alternative, the State submits that if I find that the requirements of s 46(1) are met the respondent should be released on an interim supervision order pending the determination of the restriction order application.
The respondent opposes the application for an order that he be detained in custody until the determination of the restriction order application. The respondent submits that he should be released on an interim supervision order pending the determination of the restriction order application. The respondent makes this submission notwithstanding that on 2 February 2022 the Prisoners Review Board (the Board) made a post-sentence supervision order in relation to him pursuant to s 74D of the Sentence Administration Act 2003 (WA) (SA Act) to come into effect on 26 April 2022 (the PSSO) which is his current sentence expiry date. That is, the respondent does not seek to argue that the conditions of the PSSO render it unnecessary to make an interim supervision order in respect of him.

The law[2]

[2] My statement of the applicable law reproduces what has been written by other judges of this court in numerous recent decisions: see by way of example only, The State of Western Australia v Ugle [2022] WASC 91 [5] - [8] (Hall J) and The State of Western Australia v Lynch [2022] WASC 104 [7] - [10] (Quinlan CJ).

Section 46(1) of the Act provides that the main purpose of the preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender within the meaning of the Act.
A 'high risk serious offender' is a person in relation to whom the court is satisfied by acceptable and cogent evidence and to a high degree of probability that it is necessary to make a restriction order in relation to, in order to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.
A 'serious offence' within the meaning of the Act is defined in s 5 and sch 1. Relevantly for present purposes, a 'serious offence' includes the offence of grievous bodily harm contrary to s 297 of the Criminal Code (WA) (Code) and robbery contrary to s 392 of the Code.
I do not have to be satisfied that a restriction order will be made. It is sufficient at this stage of proceedings if there are reasonable grounds for believing that an order might be made. To say that something might occur is to say that it is possible. Further, a belief is an inclination of mind towards accenting to rather than rejecting a proposition. For there to be reasonable grounds for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.

The evidence

In support of the application the State relies on an affidavit affirmed by Brent Douglas Meertens on 4 March 2022. Mr Meertens is a legal practitioner employed by the State's solicitor. Annexed to Mr Meertens' affidavit are a number of documents including the respondent's criminal record and reports that have been prepared in relation to him.
The State also relies upon an affidavit affirmed by Ms Heather Applin on 22 April 2022 and an affidavit sworn by Ms Natalie Jane Palmer on 20 April 2022. Ms Applin is a Senior Community Corrections Officer employed by the Department of Justice (the Department) and is based at the Community Offender Monitoring Unit. Ms Palmer is a Detective Inspector and Assistant Divisional Officer in the Western Australian Police Force's (WAPOL) Sex Crime Division. Ms Palmer has responsibility for the oversight of WAPOL's Sex Offender Management Squad. The affidavits of Ms Applin and Ms Palmer relate to the respondent's proposed accommodation on release.

The respondent's background and personal circumstances

The respondent is 41 years old.
The respondent had a less than ideal childhood. His parents separated when he was six years old. After the separation he spent various periods of time living with his grandmother, his aunty, and his mother and step-father. The respondent's step-father on occasions behaved violently towards the respondent's mother and the respondent.
The respondent did not perform well at school. His formal education came to an end in year 8.
The respondent has never been employed.
The respondent entered into a long‑term relationship with his current partner when he was 19 years old. In 2011, when he was 31 years old, the respondent and his partner had a daughter. Although the respondent has on past occasions asserted, in substance, that the birth of his daughter provides him with motivation to live a law abiding life, unfortunately his conduct since the birth of his daughter tends to suggest otherwise.
The respondent has a long‑term and entrenched illicit substance use problem. He started using cannabis when he was 10 years old (he asserts he was introduced to this drug by his stepfather). Since that time the respondent has progressed to using a variety of illicit substances including methylamphetamine and heroin. On the respondent's own admission heroin is his drug of choice. It is heroin that he has found the most difficult drug to abstain from when he is in the community.

The respondent's criminal record

The respondent committed the first of his offences when he was 15. Since that time he has amassed a very lengthy criminal record which includes convictions for traffic offences, numerous dishonesty type offences including burglary and stealing, drug related offences, robbery offences and assault offences.
The respondent has been sentenced to fines, orders, and imprisonment. However, none of these sentences has deterred him from offending.
The respondent's performance in response to community supervision has been unsatisfactory. He has been subject to periods of community supervision on four previous occasions and has failed to successfully complete any of the orders.
In January 2002 the respondent was convicted of his first robbery offence. The facts of the offence were that the respondent entered a pharmacy and, on seeing that there was only one female shop attendant present, demanded that she give him money. Eventually the respondent jumped the counter, opened the cash register and took $200. He was sentenced to 18 months imprisonment for the offence. He was made eligible for parole.
In May 2002 the respondent was convicted of two offences of armed robbery and four offences of stealing a motor vehicle. The facts of the first of the armed robbery offences were that the respondent drove a stolen motor vehicle to a service station and approached the closed front door of the premises armed with a hammer and an umbrella. The sole male employee opened the door. On opening the door he saw that the respondent was in possession of a hammer and therefore tried to close the door before the respondent could enter the premises. However, the respondent was able to force the door open. The respondent entered the premises, approached the counter, demanded cash, and then reached over the counter and took $145.
The facts of the second of the armed robbery offences were that later on the same morning the respondent drove to a deli. He entered the deli and asked to buy a pie. When the shop attended opened the cash register the respondent produced a hammer and told the attendant to stay away. The respondent then reached over the counter and removed the cash tray which contained $350.
The respondent was sentenced to a total of 6 years imprisonment for the two armed robbery offences and the four steal motor vehicle offences to be served partly cumulatively on sentences that he was already serving for other offences. He was made eligible for parole.
In October 2003 the respondent was convicted of one offence of robbery. The facts were that the female victim was waiting in her vehicle outside a childcare centre. She was waiting for her husband. She had her 2-month-old child in the car with her. The respondent got in the vehicle and demanded that the victim get out. The victim refused because her child was in the vehicle. The respondent punched the victim in the face twice and threatened to stab her if she did not get out of the vehicle. The victim started to get out of the vehicle. As she was doing so the respondent reversed the vehicle which resulted in the open door hitting the victim and knocking her to the ground. The respondent then drove off in the vehicle for a short distance before stopping, removing the child and placing him on the roadside. He then drove away again narrowly missing the child.
The respondent was sentenced to 3 years and 4 months imprisonment for the offence. He was made eligible for parole.
In March 2016 the respondent was convicted of one offence of grievous bodily harm. He committed the offence in July 2014. The facts were that the respondent, the respondent's partner, the respondent's 3‑year-old daughter and the victim were in a car and were in the process of trying to purchase drugs. The victim had recently been given a mobile phone by a mutual acquaintance to assist with purchasing the drugs. The respondent became impatient with the victim and told the victim to hand over his phone and to get out of the car. The respondent's partner stopped the car. The respondent and the victim got out of the car. The respondent decided that the victim was taking too long to give him the phone and as a result punched the victim to the face. The punch fractured the victim's cheekbone, eye socket and jaw. The fracture required surgical repair involving the insertion of titanium plates. The respondent was sentenced to 17 months imprisonment for the offence.
On 17 November 2017 the respondent was convicted of one offence of armed robbery together with two offences of attempting to steal a motor vehicle, one offence of stealing a motor vehicle and one offence of stealing a vehicle and driving recklessly (the index offences). He was sentenced to a total of 5 years and 6 months imprisonment for the index offences. The commencement date of the sentence was backdated to 27 October 2016. The respondent was made eligible for parole.
The respondent is currently serving the term of imprisonment imposed on him for the index offences and for an offence of aggravated unlawful assault occasioning bodily harm of which he was convicted on 29 August 2018. The expiry date of his term of imprisonment is, as I have already indicated, 26 April 2022.
The facts of the index offences briefly stated were as follows.
On 27 October 2016 the respondent attempted to steal a motor vehicle. However, the victim saw him and forcibly removed him from the vehicle.
The respondent approached another vehicle which was stationary at traffic lights while holding a screwdriver. He opened the passenger door with the intention of stealing the vehicle. The victim yelled at him not to enter the car and he walked away.
The respondent approached a third vehicle which was also stationary at traffic lights. He entered the passenger side door while holding the screwdriver and aggressively demanded that the female victim drive the vehicle. The female victim complied with the demand driving the vehicle some distance along the freeway. The respondent then demanded that the victim get out of the vehicle. The victim did so. After the victim got out of the vehicle the respondent drove off erratically and collided with several other vehicles before attempting to steal a different vehicle. He was apprehended at the scene by the police.
As is apparent from what I have said, the respondent has on five separate occasions over a 14 year period been convicted of six 'serious offences' within the meaning of the Act. Further, he committed his most recent robbery offence some 13 years after his next most recent robbery offence, although it does need to be noted that he spent much of the 13-year period in prison.

Participation in programs and recent assessments

Over the years the respondent has engaged in a large number of prison based programs and has been the subject of a significant number of assessments. For present purposes it is necessary to make specific reference only to the respondent's more recent engagement in programs and the more recent assessments of him.
A psychological report dated 2 November 2017 was prepared for the purpose of the respondent's sentencing for the index offences. According to the psychologist, overall the respondent impressed as a man who gravitated to a criminal lifestyle by choice, possibly because he felt disenfranchised from mainstream society and because his crimes may provide him with some notoriety amongst his peers. The psychologist expressed the view that the respondent's early experience of unreliable parenting and exposure to violence by his stepfather likely underpins his basic distrust of others and of authority in general.
The psychologist stated in her report that future treatment of the respondent may be ineffectual because he appears to believe that intervention should solve his problems by removing them or resolving them for him. She stated that the respondent appeared to lack appreciation that therapy offers participants learning opportunities which need to be embraced, practised, adopted and integrated into the lifestyle of the participant. She stated that during her interview with the respondent he impressed as 'defensively rejecting that understanding rather than being incapable of reaching it.'
The psychologist used a well‑recognised risk assessment tool in order to assess the respondent's future risk of violent offending. Making use of this tool the psychologist assessed the respondent as being at high risk of reoffending in a violent manner.
The psychologist concluded her report in the following terms:
[The respondent] has broad ranging treatment needs. Primarily, he needs to be able to avoid further substance abuse, which will be challenging for him as he stated he enjoyed the effects, particularly of heroin. He impressed as having some insight, thus he may respond to a counselling intervention providing adequate rapport can be achieved, which would likely take some time. Counselling could assist him in identifying motivators to make prosocial changes. Criminogenic treatment needs are identified as: negative associates; poor self‑control with regard to emotions and behaviour; lack of awareness of thinking errors related to his self‑focus and externalisation of responsibility; and his hostile interpretation and attribution…
In February 2018 an assessment of the respondent's treatment needs was undertaken. The Treatment Assessment Report prepared as a result of the assessment reveals that the respondent's risk of reoffending was assessed using the Level of Service/Risk, Need, Responsivity tool (LS/RNR) and the Violence Risk Scale, and that the respondent presented as being at very high risk of general offending on the LS/RNR and at high risk of violent offending on the VRS. The writers of the report recommended that the respondent complete the Pathways Program to address his substance abuse issues and also a Violent Offending Program to address his violent offending.
On 10 December 2018 the respondent completed the Pathways Program. In their Program Completion Report dated 16 January 2019 the facilitators of the program identified the respondent's treatment needs to be managing his use of heroin and other drugs, building empathy, taking responsibility for his actions and improving his emotional regulation abilities. The facilitators considered that the respondent had made the following treatment gains:
1.He had decided to abstain from using illicit drugs;
2.He had decided to be free from Methadone use prior to his release from prison;
3.He had expressed a willingness to positively engage with the Violent Offending Treatment Program;
4.He was motivated to become a better role model for his daughter; and
5.He was willing to be more responsible for his outcomes.

The facilitators identified the respondent's protective factors to include his strong family support, his willingness to engage in further counselling programs and a desire to engage pro-socially within society. The facilitators formed the view that the respondent had throughout the program been willing to acknowledge and address his treatment needs.
On 5 December 2019 the respondent completed the Violent Offending Treatment Program. The Program Completion Report prepared by the program's facilitators dated 19 December 2019 suggests that the optimism expressed by the facilitators of the Pathways Program was to some extent misplaced. This is evident from the following statements made in the report under the heading 'Summary and Recommendations':
Overall [the respondent] demonstrated ambivalence in his participation throughout the program. At times he appeared open, motivated and actively shared and provided input into group discussions. On other occasions he presented with hostility, appeared resistant to sharing his personal experiences and exploring program concepts. He often presented as withdrawn and reserved and tended to disengage from group discussions and activities. It appeared when [the respondent] was triggered, he would react emotionally and [communicate] aggressively. He presented with minimal motivation to explore his offending and violent behaviours.
[The respondent] was assessed as requiring the Violent Offending Treatment Program to address his treatment needs of interpersonal aggression, antisocial attitudes and beliefs, poor emotions control, substance use, impulsivity, limited employment history, and limited prosocial support. [The respondent] demonstrated limited gains in all treatment areas. This was reflective of his demeanour and participation throughout the program. He provided limited self‑management skills to reduce his risk of offending behaviour. [The respondent] asserted he had pre‑existing skills developed from his experiences in prison and rehabilitation programs and this appeared to prevent him from developing an awareness of and exploring his risk of relapse and recidivism.
[The respondent] provided a limited risk management plan though he did highlight he is motivated to continue on the Methadone program and engaging with a rehabilitation facility if required in the community. [The respondent] presented with a limited awareness of potential risk factors and understanding of his criminogenic risk…
In March 2020 the respondent was assessed for suitability for release on parole. In their Parole Assessment Report dated 10 March 2020 the community corrections officers who carried out the assessment observed that the respondent, although he engaged reasonably well during interview, displayed limited insights into his offending and had the tendency to externalise blame on his situation at the time. They observed that the respondent's victim empathy was lacking and that his prison conduct had been poor. They stated that the respondent's parole plan did not currently include anything that would mitigate risks or assist him to reintegrate into the community. They considered that the respondent's proposal to reside with his parents and his partner were unsuitable. For these reasons they did not support the respondent's release on parole.
On 23 March 2020 and again on 10 June 2020 the Board refused to release the respondent on parole.

The respondent's behaviour in prison

The respondent has been found guilty of 20 charges during his current term of imprisonment, although his last prison charge was in 2019. His offences have involved using drugs not lawfully issued to him, behaving in a threatening manner towards prison officers, using insulting language towards prison officers and official visitors, disobeying the lawful orders of prison officers, fighting with other prisoners and failing to submit to the taking of a body sample. The respondent has not

Are there reasonable grounds for believing that the court might find that the respondent is a high risk serious offender?

The respondent has a very lengthy criminal record which includes convictions for 'serious offences' within the meaning of the Act involving the use of violence or the threat of violence, specifically the robbery offences and the grievous bodily harm offence. Further, although the majority of the respondent's past offences are not 'serious offences', the number and nature of the offences that he has committed reveal that he does have a propensity to engage in serious criminal conduct while under the influence of illicit substances. It is not difficult to envisage how his propensity to engage in serious criminal conduct while under the influence of substances could easily result in him committing 'serious offences' within the meaning of the Act.
The respondent's past performance while subject to supervision in the community has been poor (although it should be noted in this regard that he was last given the opportunity of community supervision many years ago). His behaviour in prison while serving his sentence for the index offences has also been poor and demonstrates an ongoing disregard for rules as well as a willingness to involve himself in violent behaviour.
The respondent's treatment needs and risk factors as identified by the psychologist who prepared the psychological report for the purpose of the respondent's sentencing for the index offences still appear to exist. They remain substantially unaddressed. Further, the respondent appears to lack insight into the need to address his risk factors and, to the extent that he does understand the need to address them, appears relatively unmotivated to do so.
The most recent assessments of the respondent's risk levels point towards the conclusion that he remains at high risk of committing further offences of violence.
Taking into account all the above referred to matters, I am satisfied that there are reasonable grounds for believing that a court might find that the respondent is a high risk serious offender. I will therefore make the orders for the hearing of the restriction order application.

The respondent's proposed accommodation

In her affidavit Ms Applin states that the respondent has informed her that if he is released he proposes to live with his partner, Ms Rebecca Edgill, and their young child at an address in Morley (the proposed address). In her affidavit Ms Applin also states that on 15 March 2022 she made contact with Ms Edgill, that Ms Edgill confirmed her knowledge of the respondent's history of offending, that Ms Edgill lives at the proposed address with her only child (the child of the respondent), that Ms Edgill confirmed her willingness for the respondent to live with her if he is released and that Ms Edgill advised that she was supportive of the respondent.
In her affidavit Ms Palmer deposes to the following matters:
1.Ms Edgill has convictions for aggravated robbery, stealing and possession of a smoking utensil;
2.The respondent has been convicted of committing an offence of aggravated unlawful assault occasioning bodily harm against Ms Edgill, the offence having been committed in 2016;
3.According to the WAPOL Incident Management System (IMS) the respondent and Ms Edgill have recorded domestic violence incidents in 2016;
4.According to the IMS Ms Edgill has recorded domestic violence incidents against her siblings at the proposed address in 2018 and 2020; and
5.According to the IMS Ms Edgill’s brother Tristan lived at the proposed address before being convicted and imprisoned in 2020 for criminal behaviour.
With respect to each of the matters deposed to by Ms Palmer I make the following observations.
Ms Edgill does have convictions for the offences referred to by Ms Palmer. However, she was convicted of the aggravated robbery offence in March 2008, of her last stealing offence in July 2008 and of the possess smoking utensil offence in August 2010. Since August 2010 her only convictions are for using an unlicensed vehicle, driving with a false registration plate and failing to vote at an election. In essence she has, since 2010, lived in the main a law-abiding life.
The last of the domestic violence incidents reported in 2018 and 2020, all of which involved brothers of Ms Edgill, but not the brother Tristan, allegedly occurred on 30 January 2020. It appears that since January 2020 the proposed address has been a stable residential address.
I have no information before me relating to the offence of which Tristan was convicted, the term of imprisonment imposed on him or his current whereabouts.
The offence of aggravated assault occasioning bodily harm committed by the respondent against Ms Edgill that is referred to by Ms Palmer in her affidavit was committed by the respondent on 5 October 2016, approximately two weeks prior to the index offences. The respondent committed the offence in shopping centre car park. He threatened her, punched her in the leg and punched her to the face. He was apparently angry because he believed she had been involved with other men. On 29 August 2017 the respondent was sentenced to 6 months imprisonment for the offence.
As to the assertion by Ms Palmer that there are domestic violence incidents reported in 2016, counsel for the State informs me that the only domestic violence incident between Ms Edgill and the respondent is that comprised of the aggravated assault occasioning bodily harm offence committed by the respondent.
The respondent and Ms Edgill have been in a relationship for 26 years. Save for the offence committed by the respondent on 5 October 2016, he does not have history of having committed offences of domestic violence against Ms Edgill.

Interim supervision order

The question that remains is whether I should make an interim detention order pursuant to s 46(2)(c)(i) of the Act, an interim supervision order pursuant to s 58(5) of the Act or no further order at all in which case the respondent will be released on the conditions of the PSSO. The answer to this question depends on my assessment of what is required to ensure adequate protection of the community pending the determination of the restriction order application. In making this assessment I must bear in mind that the scheme of the Act requires that the court do no more than is necessary to achieve an adequate degree of protection to the community.
The State submits that the respondent’s proposed address is unsuitable given the respondent’s prior assault offence against Ms Edgill, Ms Edgill’s criminal record and the antisocial domestic violence type incidents that occurred at the proposed address in 2018 and 2020. The State submits that given the unsuitability of the proposed address, the respondent's history when last released from custody, his outstanding treatment needs and his previous poor response to supervision that there is a high risk that he will reoffend if he is released before the hearing of the restriction order application. The State therefore submits that an interim detention order should be made.
Although the State points to factors other than the unsuitability of the proposed address in support of its position that an interim detention order should be made, it is clear that its primary focus in this respect is the asserted unsuitability of the address.
Alternatively, the State submits that if I am not satisfied that an interim detention order needs to be made, then an interim supervision order should be made containing a total of 30 conditions which are set out in a draft interim supervision order which it has filed (the draft order). The State submits that the conditions of the draft order will enhance the ability of the authorities to adequately supervise and monitor the respondent in the community. The State further submits in this context that the conditions of the PSSO are not as stringent as the conditions of the draft order and will not be adequate to manage the risk of the respondent committing a serious offence.
The respondent, as I have already indicated, submits that he should be released on an interim supervision order pursuant to which he will live at the proposed address.
The PSSO, in addition to the three standard conditions required under s 74F of the SA Act, contains six condition which are substantially similar to a number of the conditions contained in the draft order. Having said this, the conditions of the draft order which cover similar ground to the conditions of the PSSO are generally framed in stricter and/or more extensive terms and therefore restrict to a greater extent the respondent's access to high risk situations.. Further, the PSSO does not include a condition providing for electronic monitoring which is a standard condition of an interim supervision order required under s 30(2) of the Act. Nor does the PSSO include a curfew condition which is a condition included in the draft order.
On the basis of the information before me and taking into account the nature of the respondent's offending history, I am not persuaded that electronic monitoring of the respondent is essential to ensure adequate protection of the community (save and to the extent that it needs to be used to ensure compliance with any curfew). However, I am satisfied that if the respondent is to be released the community corrections officers responsible for his management should have the ability to impose a curfew on him. In my opinion the imposition of a curfew will provide the respondent with stability and structure on his release and will reduce his potential access to negative peers and high risk situations. For this reason alone I accept the State's submission that it is necessary to make at least an interim supervision order to ensure adequate protection of the community.
The respondent has a lengthy record. His past performance while subject to supervision in the community has been poor although, as I have noted, he was last subject to supervision in the community a long time ago. He has significant unmet treatment needs. However, even taking these matters into account it is my opinion that the nature and extent of the risk that the respondent presents to the community should be able to be adequately and properly managed under an interim supervision order containing the stringent conditions set out in the draft order which directly address the respondent's risk factors and treatment needs. Further, although the respondent’s 2016 offence committed against Ms Edgill is obviously a cause for some concern, I do not consider that this concern provides a basis for concluding that the proposed address is sufficiently unsuitable to warrant detaining the respondent beyond his sentence expiry date particularly when regard is had to the stringent conditions of the draft order. More specifically, I am not persuaded that when the 2016 offence is viewed in the context of the lifestyle that the respondent was obviously living at that time and in the context of the long term nature of the relationship between the respondent and Ms Edgill, that there is a sound basis for concluding that it is necessary to make an interim detention order to ensure adequate protection of the community including Ms Edgill.
In summary, I am not satisfied that it is necessary to make an interim detention order in respect of the respondent to ensure adequate protection of the community but I am satisfied that it is necessary to make an interim supervision order in respect of the respondent to ensure adequate protection of the community. In other words, I am, in accordance with s 58(2) of the Act, satisfied that to ensure adequate protection of the community it is desirable to make an interim supervision order under s 58(5) which contains most of the conditions set out in the draft interim supervision order. I am also satisfied that the other pre-conditions for the making of an interim supervision order specified in s 58(2)(a) and s 58(2)(b) of the Act are met given that the respondent will not be in custody on a specified future date (26 April 2022).[3]
[3] The State of Western Australia v CA [2020] WASC 164 [30] - [33]; The State of Western Australia v Ratcliff [2021] WASC 31 [42] - [43]; The State of Western Australia v Hart [2021] WASC 205 [32] - [33].
I have referred to making an interim supervision order containing most of the conditions of the draft order because in my view two of the conditions contained in the draft order, specifically conditions 29 and 30, are conditions that do not need to be imposed on the respondent to ensure adequate protection of the community. These conditions are generally required when the offender is at risk of committing serious sexual offences. The respondent does not fall into this category of offender.
The respondent submits that condition 13 of the draft order requiring reporting to the Sex Offender Management Squad as directed is not necessary given his history of offending. In response to this submission the State points out that although the relevant police squad is called the Sex Offender Management Squad, the squad is responsible for dealing with all offenders subject to the high risk offender legislation. The State submits that the condition should form part of any interim supervision order because it will provide an added level of supervision and monitoring of the respondent to that which will be provided by officers from the Community Offender Management Unit. I accept this submission. Condition 13 should be retained.
In my opinion it is worth adding to the draft order a condition prohibiting the respondent from engaging in threatening, physically abusive or emotionally abusive behaviour towards Ms Edgill. Such a condition can be added as condition 29 and should have the effect of emphasising to the respondent that if he does behave in such a way he will be in breach of the interim supervision order and will therefore be at risk of being charged with contravening the order and being returned to custody. I will hear the parties as to the precise terms of the condition.
Finally, I note that condition 18 of the draft supervision order will need to be amended to permit the respondent to have contact with Ms Edgill.
Subject to making the above referred to necessary amendments to the draft order, I will make an interim supervision order in the terms of the draft order. Of course, the respondent should realise that if he is ultimately found by the court to be a high risk serious offender his performance on the interim supervision order is likely to be highly relevant to the court's determination as to whether he should be made the subject of a continuing detention order or be allowed to remain in the community on a supervision order. To put the issue more bluntly, if the respondent contravenes the conditions of the interim supervision order that I am about to make then, if he is ultimately found to be a high risk serious offender, it will be much more difficult for the court to conclude that a continuing detention order should not be made.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LK
Associate
27 APRIL 2022