The State of Western Australia v Brown [No 2]

[2022] WASC 388

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- BROWN [No 2] [2022] WASC 388

CORAM:   FORRESTER J

HEARD:   2 NOVEMBER 2022

DELIVERED          :   21 NOVEMBER 2022

PUBLISHED           :   21 NOVEMBER 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 offender – Application for restriction order – Whether the respondent is a high risk serious offender – Whether unacceptable risk that respondent will commit a serious offence if not subject to restriction order – Whether necessary to make restriction order to ensure adequate protection of community – Whether community can be adequately protected by imposition of supervision order - Whether the respondent will substantially comply with standard conditions of a supervision order

Legislation:

Criminal Code (WA)
Dangerous Sexual Offenders Act 1995 (WA) (repealed)
High Risk Serious Offenders Act 2020 (WA)

Result:

Supervision Order made

Category:    B

Representation:

Counsel:

Applicant	:	B D Meertens
Respondent	:	T J McCulloch

Solicitors:

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

Cases referred to in decision:

Director of Public Prosecutions (WA) v GTR [2008] WASCA 187

Director of Public Prosecutions v Williams [2007] WASCA 206

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

The Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212

The Director of Public Prosecutions v Decke [2009] WASC 312

The State of Western Australia v Bellamy [2013] WASC 467

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

The State of Western Australia v Garlett [2021] WASC 387

The State of Western Australia v Gorham [2022] WASC 353

The State of Western Australia v Hart [2019] WASC 4

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

FORRESTER J:

Introduction

1. This is an application made by the State of Western Australia on 3 March 2022 for a restriction order to be made in respect of the respondent, Daniel Ralph Brown, pursuant to the High Risk Serious Offenders Act 2020 (WA) (HRSO Act).

2. On 22 April 2022, pursuant to s 46 of the HRSO Act a preliminary hearing was held before Derrick J.[1]  Derrick J was satisfied that there were reasonable grounds to believe that the court might find the respondent to be a high risk serious offender.  His Honour ordered that the application for a restriction order be heard on 2 November 2022, and ordered that the respondent be made subject to an interim supervision order pursuant to s 58(5) of the HRSO Act.[2]

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

   [2] Book of Materials for the Restriction Order Hearing Volume 3 Filed 27 October 2022, 815 (Book of Materials Vol 3).

3. On the application for a restriction order, the matters I must decide are:

   (1)whether the respondent is a high risk serious offender, within the meaning of s 7 of the HRSO Act; and, if so

   (2)whether to make an order that the respondent be detained in custody for an indefinite term for control, care or treatment (a continuing detention order)[3] or that he be released into the community subject to conditions that the court considers appropriate (a supervision order).[4]

   [3] HRSO Act s 26.

   [4] HRSO Act s 27.

The application

1. When the application was made on 3 March 2022, the respondent was serving a term of imprisonment of 5½ years' imprisonment, imposed by Martino J on 17 November 2017.[5]  The sentence was structured as follows:

   (1)armed robbery contrary to s 392(c) of the Criminal Code (the index offence) - 5 years' imprisonment;

   (2) attempt steal motor vehicle contrary to s 378 and s 552 of the Criminal Code - 6 months' imprisonment, cumulative;

   (3) attempt steal motor vehicle contrary to s 378 and s 552 of the Criminal Code - 8 months' imprisonment, concurrent;

   (4)steal motor vehicle contrary to s 371A and s 378 of the Criminal Code - 9 months' imprisonment, concurrent;

   (5) steal motor vehicle contrary and drive recklessly contrary to s 378(2)(a) of the Criminal Code - 2 years' imprisonment, concurrent.

   [5] Book of Materials for the Restriction Order Hearing Volume 2 Filed 26 August 2022, 432 - 433 (Book of Materials Vol 2); The respondent was eligible for parole, but parole was refused: Book of Materials Vol 2, 433; Book of Materials for the Restriction Order Hearing Volume 1 Filed 26 August 2022, 262 (Book of Materials Vol 1).

2. On 29 August 2018, the respondent was sentenced to a term of 7 months' imprisonment, to be served concurrently with the above sentence.[6] 

   [6] Book of Materials Vol 1, 1.

3. The respondent's sentence expired on 26 April 2022.[7]

   [7] Book of Materials Vol 2, 657.

4. The offence of armed robbery is a serious offence under the HRSO Act.[8]  As at the date of the application, the respondent had been under a custodial sentence at all times since being discharged from the custodial sentence imposed for the armed robbery. 

   [8] HRSO Act s 5 and sch 1 item 34.

5. Accordingly, the respondent was, at the time the application was made, 'a serious offender under custodial sentence'[9] who was not a serious offender under restriction within the meaning of s 35 of the HRSO Act.

   [9] HRSO Act s 3, s 5.

Materials

1. The State produced a Book of Materials comprised of three volumes, containing the criminal history of the respondent and detailed evidence relating to it, including statements of material facts and transcripts, the respondent's custodial history, program completion reports relating to the various programs undertaken by the respondent while in custody, parole and other assessment reports, and reports prepared for this hearing, namely the:

   (1) report of Julie Hasson, Counselling Psychologist, dated 23 September 2022;

   (2)report of Dr Natalie Pyszora, Consultant Forensic Psychiatrist, dated 10 September 2022.

Index offences

INS 293 of 2017

1. On 27 October 2016, at about 2.35 pm, in West Leederville, the respondent went to the car owned by the first victim and attempted to start it with the keys, which were in the ignition, but the immobiliser prevented it starting.  The victim then forcibly removed the respondent from the car.  However, the handbrake had been released and the car rolled into a fence, damaging the fence but not the car.

2. The respondent then went to a different part of West Leederville and went up to a car waiting at an intersection.  He was holding a screwdriver.  He went up to one car and opened the passenger door, intending to steal the car, but the driver yelled at him not to get in and he closed the door and walked away.

3. He then went up to another car which was stationary at the intersection.  He opened the passenger door and got in, holding the screwdriver, which the victim could see.  He aggressively demanded that she drive the car towards the freeway and, very frightened, she did so.  After about 100 m on the freeway he demanded that the victim stop the car and get out, which she did.  He then drove the car in such a manner as to collide with another car, and then drove to Hamersley. 

4. In Hamersley, the respondent attempted to drive between two cars on a dual carriageway.  He collided with them both, forcing one off the road onto the footpath and causing the other to go over the median strip into oncoming traffic.  All of the cars sustained significant damage.

5. The respondent got out of the car and he tried to steal the car of someone who had stopped to assist, but bogged the car and was apprehended by bystanders until the police arrived.[10]

   [10] The State of Western Australia v Brown [2017] WASCSR 214 [2] - [8].

Offending history

1. The respondent has an extensive criminal history, his contact with the criminal justice system commencing at the age of 16 years.  Many of his prior offences, but not all, were serious offences within the meaning of the HRSO Act.  The most significant offending is summarised below.

IND 896 of 2015

1. On 25 July 2014, the respondent committed the offence of unlawfully doing grievous bodily harm.  The respondent, his 3‑year-old daughter and the victim were travelling in a car being driven by the respondent's partner.  The adults were trying to buy drugs.  The respondent became impatient with the victim and punched him in the face, causing fractures to the victim's cheekbone, eye socket and jaw, which required surgery involving the insertion of titanium plates.[11]  On 10 March 2016, he was sentenced to 17 months' imprisonment backdated to 23 October 2014.[12]

IND 1147 of 2003

[11] Book of Materials Vol 2, 442.

[12] Book of Materials Vol 1, 3.

1. On 29 August 2001, the respondent committed the offence of aggravated armed robbery.  At about 12.00 pm on that day the victim, her 2‑year-old son and the family dog were in a car outside a child care centre when the respondent approached and got in the driver's side.  The respondent told the victim, who was in the passenger seat, to get out of the car.  She refused because her child was in the back seat.  The respondent punched the victim twice in the face, causing her mouth to bleed, and threatened to stab her if she didn't get out.  The victim could not see a weapon but was frightened of being stabbed so she started to get out.  The respondent started the car and began to reverse, knocking the complainant down.  He then drove off, but stopped a short distance away.  He then took the young child from the car and left him on the side of the road.  He later abandoned the car with the dog in it.[13]  On 24 October 2003, he was sentenced to a term of 3 years 4 months' imprisonment cumulative on the sentence he was then serving (reduced for totality reasons).[14]

INS 92 of 2002

[13] Book of Materials Vol 2, 482 - 483.

[14] Book of Materials Vol 2, 486.

1. Between 14 and 15 September 2001, the respondent committed four offences of stealing a motor vehicle and two offences of armed robbery.  He first stole a van, then abandoned that in a school car park.  He then smashed the window of a car in that car park and stole that car.  Later that night, he stole another van, before abandoning it at a house from which he stole another car.  Shortly afterwards, he went to a Malaga service station armed with a hammer and an umbrella.  He forced the door when the employee tried to stop him entering and demanded money from the employee.  He used the umbrella to shield his face from the employee.  The employee gave him $145.  About two hours later, the respondent went into a deli in Malaga and asked for a pie and sauce.  When he produced a $5 note to pay, the employee opened the till, at which point the respondent produced a hammer, told the employee to stay away and removed $350 from the till before running away.[15]  On 31 May 2002, he was sentenced to 6 years' imprisonment (reduced for totality) partly cumulative on the term he was then serving.[16] 

IND 153 of 2002 and IND 153A of 2002

[15] Book of Materials Vol 2, 512 - 516.

[16] Book of Materials Vol 2, 546.

1. On 9 September 2002, the respondent committed the offences of stealing a motor vehicle, robbery and assault with intent to prevent arrest.  During the night of 8‑9 September 2002, the offender broke into the victim's car and removed the ignition barrel, enabling him to start the car.  Later that day, he entered a pharmacy in Yokine and asked for a fit pack.  When he was asked to pay for it, he demanded money from the pharmacist and told her he would 'jump the fucking counter' if she did not give him the money.  He ordered the pharmacist not to move or call out and jumped the counter and stole $200 from the till.  He left in the stolen car.  Later that day, police were trying to arrest him when he got in the stolen car.  As police attempted to remove him from the car, he reversed the car, striking a police officer and the car parked behind him.  He drove forward then reversed again, striking the officer and the car again before driving away at speed.  The police officer suffered bruising, lacerations and a back strain.[17]  On 22 January 2002, the respondent was sentenced to 3 years' imprisonment cumulative on the term he was then serving.[18]

IND 727 of 2000

[17] Book of Materials Vol 2, 500.

[18] Book of Materials Vol 2, 506.

1. On 26 May 2000, the respondent was sentenced to 2½ years' imprisonment for three counts of burglary, one count of aggravated burglary, one count of damage, one count of stealing a motor vehicle, two counts of breach of bail, breach of a community based order and breach of a suspended sentence.[19]

Charge PE 50815/11

[19] Book of Materials Vol 1, 8 - 9.

1. On 27 June 2012, the respondent was convicted of assault occasioning bodily harm, as well as two offences of burglary, four offences of stealing, six offences of stealing a motor vehicle.  The assault occasioning bodily harm was committed by the respondent in company with another man, apparently in retaliation for a previous matter, with the respondent punching the victim, causing a rear tooth to be dislodged.[20] 

Charge JOO 13585/16

[20] Book of Materials Vol 2, 563 - 571. 

1. On 29 August 2018, the respondent was convicted of assault occasioning bodily harm, committed on 5 October 2016, when he punched his former partner in the leg and face, causing bruising and swelling to her left eyebrow.[21] 

Other offences

[21] Book of Materials Vol 2, 581.

1. On numerous other occasions the respondent has been convicted of burglaries and stealing motor vehicles, as well as driving offences including reckless driving.[22] 

   [22] Book of Materials Vol 1, 2 - 10.

2. Since being placed on the interim supervision order on 22 April 2022, the respondent has been convicted of four offences of contravening a condition of his supervision order, contrary to s 80(1) of the HRSO Act.[23] 

   [23] Book of Materials Vol 1, 1.

Statutory framework and legal principles

1. The objects of the HRSO Act are:

   (a)to provide for the detention in custody or the supervision of high risk serious offenders to ensure adequate protection of the community and of victims of serious offences; and

   (b) to provide for continuing control, care or treatment of high risk serious offenders.[24]

   [24] HRSO Act s 8.

2. If the court hearing a restriction order application finds that an offender is a high risk serious offender, the court must make a continuing detention order or, except as provided in s 29, a supervision order.  In deciding whether to make a continuing detention order or a supervision order, the paramount consideration is the need to ensure adequate protection of the community.[25]

   [25] HRSO s 48.

3. The term 'high risk serious offender' is defined in s 7(1) of the HRSO Act as follows:

   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.

4. A 'restriction order' means a continuing detention order or a supervision order.[26]  A continuing detention order is an order that the offender be detained in custody for an indefinite term for control, care or treatment.[27]  A supervision order is an order that the offender, when not in custody, is to be subject to stated conditions that the court considers to be appropriate in accordance with s 30 of the HRSO Act.[28]

   [26] HRSO Act s 3.

   [27] HRSO Act s 3, s 26(1).

   [28] HRSO Act s 3, s 27(1).

5. Relevantly, an offence is a 'serious offence' if it is an offence listed in sch 1 div 1 of the HRSO Act.[29]

   [29] HRSO Act s 5.

6. The State has the onus of satisfying the court in accordance with s 7(1).[30]

   [30] HRSO Act s 7(2).

7. When considering whether it is satisfied that a person is a high risk serious offender, the court must have regard to:

   (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.[31]

   [31] HRSO Act s 7(3).

8. In considering whether it is satisfied, as required by s 7(1), the court must disregard the possibility that the respondent might temporarily be prevented from committing a serious offence by imprisonment, remand in custody, or the imposition of bail conditions.[32]

   [32] HRSO Act s 7(4).

9. The jurisprudence established in respect of the Dangerous Sexual Offences Act 1995 (WA) (repealed) is relevant in construing and applying the HRSO Act, with necessary adaptation.[33]

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

10. The powers conferred by the HRSO Act are not to be exercised for the purpose of imposing additional punishment on the offender, but rather for the ultimate purpose of protecting the community.[34]

    [34] Garlett v The State of Western Australia [2022] HCA 30 [55] - [56].

11. The words 'high degree of probability' import more than a finding on the balance of probabilities but less than a finding of beyond reasonable doubt but are otherwise not capable of further definition.[35]  The court is required to identify what it is that constitutes the risk and what makes it unacceptable, thereafter considering whether or not those factors have been proved to the requisite standard by acceptable and cogent evidence.[36]

    [35] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 [28] - [34].

    [36] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 [34].

12. In Garlett v The State of Western Australia[37] the court said:

    Whether or not a risk that an offender will commit a 'serious offence' is 'unacceptable' is a question which requires the court's judgment as to the nature and extent of the harm said to be in prospect.  Further, whether a restriction order is 'necessary' to protect against that risk requires recognition of what would otherwise be the offender's entitlement to be at liberty, an entitlement not lightly to be denied.

    [37] Garlett v The State of Western Australia [2022] HCA 30 [73].

13. The meaning of 'unacceptable risk' was considered by Wheeler JA in Director of Public Prosecutions (WA) v Williams[38] in the following terms:

    In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.

    [38] Director of Public Prosecutions v Williams [2007] WASCA 206 [63].

1. In The State of Western Australia v Garlett,[39] Corboy J considered that s 7(1) of the HRSO Act (in conjunction with s 48) requires the court to assess two separate matters. The first is whether a risk that an offender will commit a serious offence is unacceptable. The second is, if the risk is found to be unacceptable, whether it is necessary to make a restriction order to ensure adequate community protection against a risk that the offender will commit a serious offence. His Honour stated:

   …the court should choose, as between a continuing detention order and a supervision order, the order that is 'least invasive or destructive' of a person's right to be at liberty while ensuring an adequate degree of protection of the community.  That constraint also applies in determining the non-standard conditions (if any) of a supervision order.  Moreover, as Hall J pointed out in Director of Public Prosecutions v Decke[40] [i]t cannot simply be assumed that the most assured preventative is detention and therefore, the protection of the community will always favour such an order'.[41]

   [39] The State of Western Australia v Garlett [2021] WASC 387.

   [40] The Director of Public Prosecutions v Decke [2009] WASC 312 [14].

   [41] The State of Western Australia v Garlett [2021] WASC 387 [143].

2. The court cannot make a supervision order in relation to an offender unless satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order, the onus of establishing which is on the offender.[42] 

   [42] HRSO Act s 29.

3. The standard conditions of a supervision order are set out in s 30 of the HRSO Act and include the requirement that the offender not commit a serious offence during the period of the order.[43]

   [43] HRSO Act s 30(2)(f).

4. In determining whether an offender 'will substantially comply with the standard conditions of the order', it is, in my view, appropriate to take the approach set out by Fiannaca J in Director of Public Prosecutions v Hart:[44]

   (1)The words 'will substantially comply with' should be given their ordinary meaning, consistent with the purposes of the legislation and of the general conditions of a supervision order, the overall object of which is to achieve the adequate protection of the community by appropriate management and mitigation of the unacceptable risk that the respondent will commit a serious sexual offence.

   (2)The question of what will be substantial compliance will be a matter of judgment that will depend on the circumstances of each particular case.

   (3)The assessment is to be made in the context that it is one aspect of the broader exercise of determining whether the community can be adequately protected if the respondent is released again subject to a supervision order.

   (4)It is consistent with the ordinary meaning of the language of the section, in context, that the word 'substantially' is used in a relative sense and involves an assessment of the degree of compliance that the respondent is likely to achieve.

   (5)While the prospect of trivial or minor contraventions will not (and ordinarily should not) preclude a finding that the respondent will substantially comply with the standard conditions of a supervision order, the assessment of whether the respondent will substantially comply involves considerations other than simply whether any potential breach will be trivial or minor.

   (6)The court must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with and will enable the attainment of the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious sexual offence.

   (7)Factors that are relevant to that assessment would include the respondent's history of compliance and non‑compliance and the factors set out at [50]...[45]

   [44] The State of Western Australia v Hart [2019] WASC 4 [52].

   [45] Those factors identified at [50] of Fiannaca J's reasons in Hart include the respondent's attitude to the conditions of the supervision order, his capacity to comply with the conditions, what measures there are in place to ensure he would substantially comply, and the relative importance of any breach that might occur, in terms of the impact it would have on the practical effect of the supervision order in achieving the objects of the Act.  If engagement in counselling is a condition of the supervision order, the respondent's willingness to engage in a meaningful way, will be relevant, given the significance of counselling as a means of monitoring risk and assisting in the reduction of risk.

5. I adopt, without repeating here, the observations of Beech J in Director of Public Prosecutions (WA) v DAL [No 2].[46]

   [46] The Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33].

Family background and relationships

1. The respondent has three older sisters and a younger sister.  His parents separated when he was 6 years old but have remained on friendly terms since then.  His mother formed a de facto relationship soon after the separation, at which point the respondent went to live with his maternal grandmother and an aunt.  He stayed there for several years, before returning to live with his mother.[47]

   [47] Book of Materials Vol 2, 405 - 406 [2].

2. The respondent claims his mother's partner was a bad influence who introduced him to cannabis at the age of 10 years and who was violent towards both the respondent and his mother at times.[48]

   [48] Book of Materials Vol 2, 405 [4].

3. The respondent initially had regular contact with his father which reduced during his teens.  His father continued to support him in his adulthood, but he died about in May 2020.[49]

   [49] Book of Materials Vol 3, 868 [116].

4. In 2000, the respondent's older sister was murdered, which caused him distress and left him with a sense of injustice arising from the sentence imposed on the offender.[50]

   [50] Book of Materials Vol 2, 406 [9].

5. The respondent has had one significant relationship, with the victim of the assault occasioning bodily harm.  He claims their relationship has been most stable since his release, and they lead a quiet life.[51]  He has a daughter, aged 12, whom he has said motivates him to remain offence free.[52] 

   [51] Book of Materials Vol 3, 906 [12] - [13].

   [52] Book of Materials Vol 2, 406 [7].

6. The respondent was unable to identify any friendships and acknowledges he has limited prosocial supports.[53]

   [53] Book of Materials Vol 3, 908 [14].

Education and employment

1. The respondent has a limited education.  He started but did not complete year 9.[54]  He has some literacy skills, but says his numeracy is poor.  He has undertaken some education while in custody.[55]

   [54] Book of Materials Vol 3, 906 [6].

   [55] Book of Materials Vol 2, 405 [6].

2. The respondent has effectively never been employed.  He has no driver's licence or qualifications.[56]

   [56] Book of Materials Vol 2, 405 [6].

3. The respondent supports himself by Centrelink and an inheritance.[57]  Until recently, he advised that he did not intend to seek work until it became a financial necessity, believing his lifetime driver's licence ban makes it too difficult to commute to work, he would not be able to earn enough money to make it worthwhile and doesn't want to work away from his partner.[58]  However, more recent information suggests he has become more open to seeking employment and has taken the first steps towards gaining it.

   [57] Book of Materials Vol 3, 906 [7].

   [58] Book of Materials Vol 3, 906 [7].

Substance abuse

1. The respondent has primarily used cannabis, heroin, methylamphetamine, amphetamine, benzodiazepine, and alcohol.  He was introduced to cannabis at the age of 10 and smoked it daily until he was 25 years old.  He started using amphetamine intravenously from the age of 17 and gradually moved to injecting methylamphetamine several times a day.[59]  However, he identified heroin as his drug of choice and the one he has the most difficulties abstaining from.[60]

   [59] Book of Materials Vol 2, 406 [10].

   [60] Book of Materials Vol 2, 407 [11].

2. The respondent is presently on the methadone program and has been since November 2017.[61]

   [61] Book of Materials Vol 1, 276.

3. The respondent was taken into custody on 11 August 2022, at which time he described himself as a social drinker and non‑drug user.  When he was remanded in custody again on 15 September 2022, he admitted he had injected heroin on five occasions that week and described himself as a heavy drinker.[62]

   [62] Book of Materials Vol 3, 939.

4. This is contrary to his statements to Ms Hasson that he has never had an issue with alcohol, having witnessed the effects on his stepfather, and that he does not like drunkenness as he likes to be in control.[63]

   [63] Book of Materials Vol 3, 907 [10].

Medical and Psychiatric History

1. There is no suggestion that the respondent has any mental health conditions.[64]  He has complained about an ongoing issue with his knees, which limits his ability to exercise.[65]  There have been some medical concerns, but the respondent has declined to undergo further testing.[66]

   [64] Book of Materials Vol 2, 406 [8].

   [65] Book of Materials Vol 3, 868 [114].

   [66] Book of Materials Vol 3, 864 [92], 868 [118].

Conduct while in custody

1. During his most recent sentence, the respondent was charged and found guilty of 22 prison offences, including using abusive language, using insulting or threatening language towards an officer or behaving in an insulting or threatening manner towards an officer, failing to submit a body sample as required, disobeying the lawful order of an officer, insubordination or misconduct and using a drug not lawfully issued to him.[67]  A number of other incidents were also recorded, including using coded language during telephone calls.[68]

   [67] Book of Materials Vol 1, 17 - 20.

   [68] Book of Materials Vol 1, 21 - 29.

2. In total, 49 incidents were logged in relation to him between October 2016 and July 2022.  He did not commit any prison offences between July 2018 and April 2020, or between April 2020 and May 2021.  Further, by July 2021, staff reported the respondent:

   (1)generally is a quiet prisoner who is polite and respectful;

   (2)usually follows the rules and instructions as required;

   (3)is not considered to be a management concern; and

   (4)appears to interact well with the other prisoners.[69]

   [69] Book of Materials Vol 1, 261.

3. While most of the charges related to the respondent, in effect, engaging in angry and aggressive behaviour or using illicit drugs consistent with his profile as set out in the reports summarised below, there were also some indications of the respondent engaging with external contacts for anti-social purposes.[70]

   [70] For example, see Book of Materials Vol 1, 52, 63, 84, 146, 165.

Previous Response to Supervision

1. The respondent re‑offended during a Community Based Order imposed on him on 20 September 1999 and failed to comply with the conditions of an Intensive Supervision Order imposed on him on 13 August 1999.[71]  He also reoffended while subject to that order and a suspended sentence imposed on 13 August 1999.[72]

   [71] Book of Materials Vol 2, 415.

   [72] Book of Materials Vol 1, 8 - 10.

2. The respondent was released on parole on 20 December 2000 but his order was cancelled on 17 September 2001 as a result of the failure of the respondent to comply with his conditions.[73]

   [73] Book of Materials Vol 1, 251 - 252.

3. The respondent was again released on parole on 4 September 2008 but his order was suspended as a result of the respondent continuing to use illicit substances and failing to comply with his parole conditions.[74]  His parole was subsequently cancelled after the respondent allegedly admitted that he had no intention of complying with his parole conditions or ceasing drug use.[75]

   [74] Book of Materials Vol 1, 249.

   [75] Book of Materials Vol 1, 248.

4. The respondent was not granted parole during his more recent custodial terms.[76]

   [76] Book of Materials Vol 1, 245 - 247.

Previous Reports

Report of Wendy Wager, Counselling and Clinical Psychologist, dated 3 November 2017

1. Ms Wager reported that the respondent was sedate, respectful, and willing to provide information.  He did not exhibit any cognitive issues.[77]

   [77] Book of Materials Vol 2, 404 [1].

2. Ms Wager administered the MCMI‑III instrument.  While it is not validated for use with an Aboriginal population, having regard to the respondent's urban background and mainstream schooling, she interpreted it with caution and consideration of possible bias through cultural influences.  The personality profile obtained from the respondent's responses is consistent with those who tend to withdraw socially due to expectations that they will be hurt or let down by others.  Similar high scorers tend to be ruthless, reckless, impulsive and insensitive to the feelings of others and to act out in antisocial ways.[78]

   [78] Book of Materials Vol 2, 407 [14].

3. The assessment also suggested that the respondent experiences a high level of anxiety, as well as depressive feelings and symptoms, and that he could be at risk of developing a major depressive disorder.[79]

   [79] Book of Materials Vol 2, 407 - 408 [15].

4. To Ms Wager, the respondent 'impressed as a man who gravitated to a criminal lifestyle by choice, possibly because he feels disenfranchised from mainstream society and his crimes may provide some notoriety amongst his peers'.  He has a pervasive distrust of others and of authority in general. [80]

   [80] Book of Materials Vol 2, 409 [21].

5. The respondent appeared to Ms Wager to have gravitated towards illicit drug use in order to avoid thinking about (and having to address) uncomfortable feelings.  Future treatment may be ineffectual because he appeared to believe that interventions should solve his problems by removing them or resolving them for him.[81]

   [81] Book of Materials Vol 2, 409 [22] - [23].

6. Ms Wager also used the HCR-20v3, to assess factors which have been shown to correlate with heightened reoffending risk.  The respondent's overall score was predictive of a high risk of reoffending in a violent manner.[82]

   [82] Book of Materials Vol 2, 410 [25].

7. Clinical factors of relevance relate to the respondent's failure to recognise the seriousness of his behaviour in terms of harm to others and his apparent belief that he can change without further treatment.  He stated he would comply with treatment but does not appear to have integrated any past learning.  He has few quality supports and no sound strategies for coping with stressors.[83]

   [83] Book of Materials Vol 2, 410 [26] - [28].

8. Ms Wager identified criminogenic treatment needs 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.  She also opined that a residential rehabilitation program would provide the most appropriate level of intervention, although expressed doubt as to the respondent's motivation to engage long enough to gain any benefits.[84]

Pre-sentence Report dated 8 November 2017

[84] Book of Materials Vol 2, 410 - 411 [29].

1. The author of the pre-sentence report noted that the respondent's response to community supervision has been poor, having had two parole orders, a community based order and an intensive supervision order cancelled.[85]

Parole Assessment Report dated 22 December 2006

[85] Book of Materials Vol 2, 415.

1. The respondent considered his parole application to be a futile exercise due to drug related prison charges.  He provided minimal insight into his offending, externalised responsibility for his violent behaviour and attempted to minimise the impact of his actions.  He displayed no victim empathy.[86]

   [86] Book of Materials Vol 2, 595 - 596.

2. The respondent had incurred 19 prison charges during his term, related to illicit substances and abusive behaviour towards staff.[87]  Despite programmatic interventions, he continued to engage in the use of illicit substances.  Further intervention was discussed with him but he presented as 'pre‑contemplative' and expressed reluctance to participate in residential rehabilitation.[88] 

   [87] Book of Materials Vol 2, 597.

   [88] Book of Materials Vol 2, 598.

3. Parole was not supported[89] and the respondent's release to parole was deferred.[90]

Parole Assessment Report dated 20 August 2008

[89] Book of Materials Vol 2, 599.

[90] Book of Materials Vol 2, 605.

1. The respondent completed a number of further programs after his release to parole was deferred but also incurred a further six prison charges, relating to drug use and poor behaviour towards staff, including an assault.[91]  However, none of these charges were incurred after the completion of the Violent Offender Treatment Program.[92]

   [91] Book of Materials Vol 2, 605.

   [92] Book of Materials Vol 2, 606.

2. As a result of the respondent's previous poor response to supervision, poor prison behaviour, lack of insight into his offending behaviour, apprehensive attitude towards employment on release and the nature of his offending, release on parole was not supported.[93]

Parole Assessment Report dated 14 January 2013

[93] Book of Materials Vol 2, 607.

1. The respondent was considered to be an average worker due to his limited skills.  He had had numerous adverse incident reports in the past but was reported to have improved his behaviour.  He did incur three drug related prison charges.[94]

   [94] Book of Materials Vol 2, 612.

2. The respondent failed to articulate skills and strategies learned in previous programs and demonstrated a failure to take responsibility for his actions in discussing his most recent breach of parole, as well as potentially 'unalterable beliefs' about illicit drug use.[95]

   [95] Book of Materials Vol 2, 613.

3. The report author had concerns about the respondent's preparedness to comply with parole and his lack of strategy to ensure parole completion.[96]

   [96] Book of Materials Vol 2, 614.

4. Release on parole was not supported.[97]

Parole Assessment Report

[97] Book of Materials Vol 2, 615.

1. This report, dated 10 March 2020, did not recommend GPS monitoring or a curfew as necessary risk management strategies for the respondent.[98]  He was assessed as having minimal protective factors in place but intended to establish contact with support agencies on release.[99]  However, the authors of the report considered his parole plan to be lacking features which would mitigate risk or assist him in reintegrating into the community, and his proposed accommodation was unsuitable.  As a result, his release to parole was not supported.[100]

   [98] Book of Materials Vol 2, 659.

   [99] Book of Materials Vol 2, 659.

   [100] Book of Materials Vol 2, 660.

Programs

Reasoning and Rehabilitation Program

1. The Treatment Completion Report dated 23 September 2002 reports that the respondent did not participate well in the program and, for the most part, was not interested.  He displayed no evidence of any gains.  The author formed the view that the respondent lacked motivation and the strength to facilitate positive change in his attitude and behaviour.[101]

Controlling Anger and Learning to Manage it (CALM) Program

[101] Book of Materials Vol 2, 583 - 584.

1. The Completion Report, dated 8 May 2003, states that the respondent presented with a moderate to low level of motivation.  He attended all sessions but his participation was limited.[102]  He demonstrated an average to poor understanding of content and his level of insight into his offending behaviour was poor.[103]

Pathways High Intensity Drug & Alcohol Program

[102] Book of Materials Vol 2, 586.

[103] Book of Materials Vol 2, 586.

1. The Completion Report states that the respondent undertook this program between 15 September 2003 and 19 October 2003.[104]  The respondent participated at a satisfactory level.  He demonstrated understanding of the program and his written work and completion of assignments was above average.[105]  The respondent gained a solid level of factual knowledge regarding the effects of alcohol use and drug use and his assessment reflected a strong belief in the negative effects of using alcohol and illicit drugs.  His pattern of responses indicated a good level of confidence regarding his ability to resist the urge to use drugs across a range of situations.[106]

Think First

[104] Book of Materials Vol 2, 588.

[105] Book of Materials Vol 2, 589.

[106] Book of Materials Vol 2, 590.

1. The respondent commenced this program on 25 October 2006 but did not finish it.  The respondent was willing to participate in this program and attended three sessions before testing positive to amphetamines, which resulted in him being unable to complete the program.[107]

Violent Offender Treatment Program

[107] Book of Materials Vol 2, 593 - 594.

1. The Completion Report, dated 10 July 2008, stated that the respondent engaged well and appeared motivated to address his offending behaviour.  He showed good effort and participated well.  Testing showed that, post-program, the respondent's Hostile Interpretations Questionnaire profile showed a decrease in his overall total of hostile interpretation.  While he was still likely to interpret events as motivated by hostility he was less likely to respond in a hostile manner.[108]

   [108] Book of Materials Vol 2, 601 - 602.

2. The State Trait Anger Expression Inventory - 2 was administered and the respondent's profile showed that his levels across the board shifted from being elevated pre‑program to the normal range post‑program.[109]

   [109] Book of Materials Vol 2, 602.

3. The respondent appeared to achieve some important gains including being able to identify specific triggers related to his anger and developing an improved set of strategies.  He developed a greater awareness of his emotional states and began to present in a less hostile manner.  It was recommended that he receive assistance with his interpersonal skills, employment skills, and support in relation to his substance use on release.[110]

Moving on from Dependencies Program

[110] Book of Materials Vol 2, 603 - 604.

1. The respondent declined to participate in this program in 2010, citing his previous completion of a substance use program and the fact that he had no possibility of parole.[111]

Cognitive Brief Intervention Program

[111] Book of Materials Vol 2, 608.

1. The Completion Report, dated 27 February 2012, states that the respondent was an active and willing participant in the program.  He demonstrated good critical reasoning and problem solving skills, showed a good understanding of consequences and perspective taking and presented a positive and realistic relapse prevention plan.[112]

Violent Offending Intensive Program

[112] Book of Materials Vol 2, 610.

1. The respondent commenced this program in December 2012[113] and was undergoing it at the time of his Parole Assessment in January 2013.[114]  However, he was 'exited' from the program on 3 July 2013 due to his behaviour.[115]

   [113] Book of Materials Vol 2, 617.

   [114] Book of Materials Vol 2, 615.

   [115] Book of Materials Vol 2, 624.

2. During his time in the program, he demonstrated responsivity issues and his engagement was variable.[116]  He continued to exhibit his tendency to externalise blame for his actions.[117]  He demonstrated a concerning pattern of directing his frustration towards the female facilitator rather than the male facilitator.  The respondent claimed, when asked, that she particularly triggered him to act in an aggressive manner.  He displayed a poor attitude and distorted thinking towards females, particularly Aboriginal females.[118]  He blamed his upbringing for some distorted attitudes but recognised this made it easier for him to justify and rationalise his behaviour.  He acknowledged illicit substance was a major risk factor and identified that he used substances when bored, stressed or depressed.[119]

   [116] Book of Materials Vol 2, 620.

   [117] Book of Materials Vol 2, 621.

   [118] Book of Materials Vol 2, 621. 

   [119] Book of Materials Vol 2, 623 - 624.

3. The facilitators considered decision making, problem solving, perspective taking, interpersonal and relationship skills, and emotional management remain outstanding treatment needs for the respondent.  During the course of the program, the respondent accumulated six prison drug charges and it was recommended he participate in the Pathways Program to address his substance use, but this was unavailable to him at the time of the report. [120]

Pathways Program 

[120] Book of Materials Vol 2, 625.

1. The Program Completion Report dated 19 February 2014 recorded that the respondent made numerous and significant treatment gains while undertaking the program.[121]  He demonstrated an increased motivation to change and developed a comprehensive, realistic and achievable relapse and recidivism prevention plan.[122]

Think First Program

[121] Book of Materials Vol 2, 628 - 629.

[122] Book of Materials Vol 2, 629.

1. The Completion Report, dated 17 April 2014, records that the respondent attended all sessions and made a concerted effort to work hard in the program.  He appeared to have made gains in most areas which were indicative of his level of participation and his willingness to change.[123]

Prison Cognitive Brief Intervention

[123] Book of Materials Vol 2, 636.

1. The Program Report, dated 7 January 2015, indicated that the respondent withdrew after two sessions and thus did not complete the program.[124]

Treatment Assessment Report

[124] Book of Materials Vol 2, 637 - 638.

1. This report, dated 27 February 2018, records that the respondent presented as a high risk of violent reoffending and a very high risk of general reoffending.  It was recommended that he complete the Pathways Program and the Violent Offending Program.[125]

Pathways Program

[125] Book of Materials Vol 2, 642.

1. The respondent completed the Pathways Program again on 10 December 2018.[126]  The facilitators considered the respondent to have made significant treatment gains at the conclusion of the program, including his decision to abstain from illicit drugs, his willingness to positively engage with the Violent Offender Treatment Program, and his willingness to be more responsible for his actions.  It was recommended that he receive support in the community in relation to his substance use, disengaging from negative peers and employment.[127]

Violent Offending Treatment Program

[126] Book of Materials Vol 2, 643.

[127] Book of Materials Vol 2, 648.

1. The respondent's behaviour fluctuated during the program, ranging from active engagement and open participation, to being dismissive, resistant and reserved.  At times he became aggressive towards the facilitators.[128]  Overall he demonstrated ambivalence in his participation and demonstrated limited gains in all areas of identified treatment need, including interpersonal aggression, antisocial attitudes and beliefs, poor emotions control, substance use, impulsivity, limited employment history and limited prosocial support.[129]

   [128] Book of Materials Vol 2, 652.

   [129] Book of Materials Vol 2, 656.

Performance on Interim Supervision Order

1. The respondent has demonstrated what his Senior Community Corrections Officer (SCCO) calls 'mixed compliance' with his supervision requirements.  He has reported weekly as required, but his engagement with the supervision process has been superficial.  While he has spoken about engaging with agencies for assistance with employment and undertaking further substance abuse counselling, he has not done so.[130]

   [130] Book of Materials Vol 3, 937.

2. The respondent was issued with a Written Lawful Instruction not to use illicit substances on 11 May 2022,[131] that not being a condition included in the Interim Supervision Order.  He largely failed to comply with the instruction. 

   [131] Book of Materials Vol 3, 822.

3. In particular, the respondent has been directed to attend for urinalysis on 40 occasions, and has tested positive to opiates on six occasions and methylamphetamine on one occasion.  He tested positive to benzodiazepines on one occasion.  He has also provided a void sample on a number of occasions, used a deceptive device and behaved in an intimidating manner towards the phlebotomist.[132]

   [132] Book of Materials Vol 3, 939 - 940.

4. As a result of his illicit substance use and issues with urinalysis, the respondent has received four verbal and written warnings, and has been charged with ten contravention offences and two charges of using a prohibited drug.  He has received more than $6,000 in fines and on 6 October 2022 was sentenced to a term of 6 months and 1 days' imprisonment, suspended for 6 months.[133]

   [133] Book of Materials Vol 3, 940 - 941.

5. While the respondent made negative comments to Ms Hasson about the interim supervision order, especially the GPS monitoring and curfew, he admitted to Ms Hasson that the extra support and assistance of the order may be useful to him, as he does not wish to return to prison.[134]

   [134] Book of Materials Vol 3, 908 [15].

6. He has tested negative on five occasions in October 2022,[135] which suggests that the suspended sentence is having a deterrent effect upon him. 

   [135] Book of Materials Vol 3, 939.

Reports prepared for the purposes of the restriction order hearing

Report of Dr Natalie Pyszora, Consultant Forensic Psychiatrist, dated  10 September 2022

1. Dr Pyszora's report was tendered as part of the materials upon which the State relied, and Dr Pyszora gave evidence at the hearing confirming the contents of her report. 

2. Dr Pyszora stated that the respondent's attitudes, beliefs and cognitions as reported during the current assessment as well as his history of criminal and antisocial behaviour indicates the presence of antisocial personality disorder, substance abuse disorder and the presence of dependent and avoidance personality traits.[136]

   [136] Book of Materials Vol 3, 890 [260] - [264].

3. The respondent told Dr Pyszora that he started offending at the age of 10 years with older family members.  He described them as his role models.  He became involved in reckless driving of stolen cars at the age of 13 years, noting that it gave youths a good reputation if they made a name for themselves as good drivers.  He preferred doing burglaries when no one was home rather than committing robberies.[137]  As a youth he got into thrill seeking, including car chases, and his drug use would enhance the thrill.  However, he then became dependent on drugs.  He informed Dr Pyszora that his need for sensation seeking has been wearing off year by year.[138]

   [137] Book of Materials Vol 3, 886 [237].

   [138] Book of Materials Vol 3, 886 [238].

4. The accounts the respondent gave to Dr Pyszora of the serious offences he had committed reflected his tendency to engage in a level of victim blaming.  He accepted responsibility for his offending but minimised and justified it.[139]

   [139] Book of Materials Vol 3, 888 [237] - [246].

5. The respondent identified potential contributors to a high risk situation for him as being association with his cousins, relapse into drugs use and/or the need for transport.  He does not believe he would need to commit offences to obtain drugs (he told Dr Pyszora he was able to get them for free) but he is aware drug use would impair his judgment.[140]

   [140] Book of Materials Vol 3, 888 [248].

6. The respondent described his current motivation not to re‑offend as wanting to spend time with his mother, partner and daughter.  He admitted to some episodes of drug use since his release, but his most recent period in the community is the best he has ever done.  He says he does not want to use drugs but it was not easy to get to that point.  He feels that stress does not help and he blames his stress on the current interim supervision order.[141]

   [141] Book of Materials Vol 3, 888 [250].

7. The respondent expressed a degree of hopelessness about his perceived lack of ability to obtain employment or a driver's licence as well as his ability to remain drug free in the future.[142]

   [142] Book of Materials Vol 3, 889 [253].

8. Dr Pyszora was of the view that the respondent fulfils criteria for a diagnosis of antisocial personality disorder.  He also displays traits of paranoid personality, which result in a pervasive distrust and suspiciousness of others and interpretation of their motives as malevolent.[143] 

   [143] Book of Materials Vol 3, 890 [261].

9. In evidence, Dr Pyszora noted that with antisocial personality disorder, for people in their 40's their antisocial traits will commonly improve, and that, given the respondent is 42, there was a good chance that he will be less inclined to act in antisocial ways.  However, this was complicated by the respondent's paranoid traits.[144]

   [144] ts 49.

10. Dr Pyszora considered that the respondent also fulfils criteria for a substance use disorder, which, in relation to heroin and amphetamine, is severe.[145]

    [145] Book of Materials Vol 3, 890 [263] - [264].

11. In Dr Pyszora's opinion, the respondent's impulsive and antisocial behaviour became entrenched, leading to him spending the majority of his life in prison.  This in turn has led to him becoming institutionalised, and rapidly returning to drug use, antisocial peer groups and reoffending on previous releases.[146] 

    [146] Book of Materials Vol 3, 891 [267].

12. Dr Pyszora says that the respondent:

    …used threats of violence, including the use of weapons, during armed robberies as well as actual violence in retaliation when he feels that his own moral code has been breached and he is retaliating for family members.  He has used threats of violence in prison in an attempt to get his needs met…  He has justified and minimised the seriousness of his previous offences. His antisocial cognitions, impaired judgment in the context of severe drug dependency/withdrawal, and lack of victim empathy have enabled him to undertake robberies which the victims would have found extremely traumatic.[147]

    [147] Book of Materials Vol 3, 891 [268].

13. Dr Pyszora observed that the respondent has struggled to implement any gains from his treatment programs after his releases from prison, which reflects the severity of his drug addiction, his lack of alternative coping strategies for stress, significant personality disorder with entrenched antisocial and paranoid attitudes and lack of structured time through employment.  However, it is positive that he has engaged well with supervision with his SCCO and psychologist on the interim supervision order.[148]

    [148] Book of Materials Vol 3, 891 [269].

14. Dr Pyszora administered the PCL-R, a standardised rating scale which allows the reliable identification of traits of psychopathy.  Although not designed to be a risk assessment instrument, the PCL‑R has been reliably associated with general, violent and sexual recidivism and is considered to be an important consideration in assessing risk.[149]

    [149] Book of Materials Vol 3, 892 [270]; De Matteo, D & Olver, M.E (2021) Use of the Psychopathy Checklist-Revised in Legal Contexts: Validity, Reliability, Admissibility and Evidentiary Issues, Journal of Personality Assessment 1 - 18.

15. The respondent scored well below the threshold for psychopathy, and his scoring was consistent with his diagnosis of antisocial personality disorder.[150]

    [150] Book of Materials Vol 3, 892 [272].

16. The Violence Risk Appraisal Guide-Revised (VRAG‑R) is a 12 item actuarial instrument which assessed the risk of violent recidivism among those previously apprehended for criminal violence.  It estimates the likelihood that a released offender will commit at least one violent or contact sexual offence in a defined period of opportunity, where opportunity is defined by community access.[151]  The scale used includes a slightly broader range of violent offences than s 5 of the HRSO Act, and includes threatening with a weapon, assaulting a 'peace officer' and assault causing bodily harm.[152]

    [151] Book of Materials Vol 3, 892 [273].

    [152] Book of Materials Vol 3, 893 [275].

17. The respondent scored a total of 31 on the VRAG‑R which places him at the 95^th percentile and in the highest of the categories for re-offending risk.  For persons in this category, 76% will commit a further violent offence within 5 years and 87% will violently reoffend within 12 years.[153]  The expected rate of violent recidivism reduces by 10% for each violent offence‑free year at risk.[154]

    [153] Book of Materials Vol 3, 893 [276].

    [154] Book of Materials Vol 3, 893 [277].

18. Structured Professional Judgment (SPJ) has become the principal method for carrying out risk assessments.  In this method, assessors use all available information to assess aggravating and mitigating factors to categorise individuals as low, moderate or high risk.  It focuses on the prevention and management of future violence, rather than an exact probability of likely future violence.[155]

    [155] Book of Materials Vol 3, 894 [279].

19. The HCR-20v3, a set of clinical guidelines, provides an SPJ approach to violence risk assessment, measuring both static and dynamic factors that are associated with violent recidivism and includes a Historical scale, a Clinical scale and a Risk Management scale.[156]

    [156] Book of Materials Vol 3, 894 [280].

20. The respondent had a number of historical risk factors, including a history of problems with previous violence, other antisocial behaviour, relationships, employment, substance use, personality, traumatic experiences, violent attitudes, and treatment or supervision response.[157]  While he does not have a history of problems with major mental disorder, Dr Pyszora did consider him to be at risk of developing a major depressive order.[158]

    [157] Book of Materials Vol 3, 894 - 896 [282] - [292].

    [158] Book of Materials Vol 3, 895 [287].

21. On the clinical risk factor scale, recent problems with insight, violent ideation or intent, instability and treatment or supervision response are all partially present for the respondent.[159]

    [159] Book of Materials Vol 3, 896 - 897 [293] - [297].

22. The risk management factors of future problems with living situation, personal support, treatment or supervision response are partially present for the respondent, and the risk management factor of problems with stress or coping is present.[160]

    [160] Book of Materials Vol 3, 897 - 898 [299] - [305].

23. In Dr Pyszora's view, the respondent has an established pattern of offending behaviour, including serious offending within the meaning of s 5 of the HRSO Act, and significant outstanding criminogenic treatment needs including antisocial personality disorder, antisocial cognitions, antisocial companions, family and relationship stressors, substance abuse, lack of employment, relative lack of education and lack of prosocial leisure or recreational activities.[161]

    [161] Book of Materials Vol 3, 898 [306].

24. Dr Psyzora's opinion was that the respondent  presents a high risk of committing a serious offence if his risk factors are not managed.[162]

    [162] Book of Materials Vol 3, 898 [307].

25. In Dr Pyszora's view, the respondent is most likely to commit an armed robbery in the context of a carjacking to secure transport to complete a drug purchase or armed robbery of soft targets.  He would either be armed or pretending to be armed.  He is likely to threaten the owner of the vehicle, if they resist his attempts, and may use physical violence to gain compliance.  Offences of this type would be likely to cause severe and enduring psychological harm to the victims as well as possible physical harm.[163]

    [163] Book of Materials Vol 3, 898 - 899 [309].

26. This scenario is likely to arise if the respondent comes under severe financial stress, including financial stress as a result of relapse into drug dependency.  However, he may commit such offences even in the absence of financial stress, while he is under the influence of drugs or suffering from withdrawal.  Such offending would be impulsive and opportunistic.  If he steals a motor vehicle, he may drive it in a reckless manner.[164]  Such offending would be frequent and would continue until the respondent was apprehended.[165]

    [164] Book of Materials Vol 3, 899 [310].

    [165] Book of Materials Vol 3, 899 [311].

27. However, Dr Pyszora considered there to be no imminent risk of such offending if the respondent's risk factors are managed under a supervision order.  Warning signs would include relapse into drug use and/or association with antisocial and drug using peers.[166]

    [166] Book of Materials Vol 3, 899 [312].

1. Dr Pyszora recommended that an order include monitoring strategies, treatment of his outstanding criminogenic needs and consideration of his mental health needs, which is a vulnerable area.  She was also of the view that there should be appropriate restrictions on his community freedom, including a condition that he not associate with people using substances.[167]

   [167] Book of Materials Vol 3, 899 [314] - [319].

2. In evidence, Dr Pyszora was asked whether she considered a curfew to be necessary in the case of the respondent.  Dr Psyzora said that, as the respondent has been out of prison since April 2022 (except for two brief periods in custody), the curfew had served its purpose in terms of reintegration and structure.  Given the majority, if not all, of the respondent's offending had occurred during the day, she did not consider a curfew to be 'directly risk relevant'.[168]

   [168] ts 53.

3. In Dr Pyszora's opinion, the appropriate term of the supervision order would be 5 years, bearing in mind the substantial issues there have been since the respondent's release, his significant criminogenic treatment needs, and the need to embed the changes he needs to make.  She did acknowledge that if the respondent performed 'exceptionally well' on the order, he might achieve a 'good risk point' within 3 years, although if he performed badly, he could still be high risk in 5 years time.[169]

Report of Ms Julie Hasson, Forensic Psychologist, dated 23 September 2022

[169] ts 53.

1. Ms Hasson's report was tendered as part of the materials relied upon by the State.  Ms Hasson gave evidence and confirmed the contents of her report. 

2. The respondent acknowledged his offending history and told her that on almost all occasions he was struggling with drug addiction and various stressors.  He said he had difficulties reintegrating into society after his release from prison and then relapsed into substance abuse and antisocial peer associations.  He expressed regret for his offending and said that he never intended to hurt his victims or use the weapons he carried but was prepared to steal using threats and actual violence to get what he wanted. [170]

   [170] Book of Materials Vol 3, 914 [49].

3. Ms Hasson is of the view that structure and support are essential to manage the respondent's risk and that it would be important to balance his need for autonomy and control with what a supervision order requires by way of supervision, monitoring and seeking permission in order to optimise the respondent's compliance.[171] 

   [171] Book of Materials Vol 3, 908 [15].

4. In this regard, Ms Hasson notes the performance of the respondent on the interim supervision order (as reported by Ms Sullivan, the respondent's SCCO) raises some concerns about his motivation and willingness to substantively comply with his obligations to reduce his risk of reoffending.[172]

   [172] Book of Materials Vol 3, 918 [71].

5. Ms Hasson administered the PCL-R and obtained results consistent with those of Dr Psyzora.[173] 

   [173] Book of Materials Vol 3, 918 - 919 [73] - [76].

6. Ms Hasson also used the HCR-20v3 risk assessment tool.  As found by Dr Pyszora, the respondent had a number of historical factors present.  The respondent's offending history demonstrates a clear pattern of violence across a number of developmental stages with an escalation in his behaviour over time.  It also shows diversity in choice of weapon, type of victim, severity of violence and the motivation for the violence.[174]  His substance abuse is a major risk factor for him, and he does not appear to be at a stage where he is committed to remaining abstinent from drugs.[175]

   [174] Book of Materials Vol 3, 920 [79].

   [175] Book of Materials Vol 3, 921 [83].

7. Ms Hasson suggested that grief counselling may be of benefit to the respondent, who still feels ongoing distress and grief regarding his sister's death.[176]  The respondent will also require assistance to develop more coping skills with an emphasis on problem focused coping strategies, and emotion focused strategies such as socialising with supportive others and increasing involvement in prosocial activities.[177]

   [176] Book of Materials Vol 3, 921 [86].

   [177] Book of Materials Vol 3, 924 [100].

8. The risk scenarios posited by Ms Hasson are:

   (1)that the respondent will commit an armed robbery or robbery in order to support his drug use, to obtain alcohol or alleviate financial stress.  He is likely to have a weapon.  He may be alone or in company and is likely to target a small business or individual.  He may attempt to steal a car.  Brandishing a weapon, threats and, potentially, violence may be used to gain compliance from his victim.  He will likely be under the influence or withdrawing from illicit substances.  If he steals a car, he is likely to drive it recklessly.  The potential for harm is significant.[178]

   (2)the respondent may assault another individual (stranger, acquaintance, or family member, including his intimate partner) following an argument, perceived slight, in retaliation for perceived wrongdoing or because he is upset.  He will likely be intoxicated and a weapon, if readily accessible, may be used.[179]

   (3)the respondent will likely behave in a violent and/or aggressive manner towards a police officer or other individual carrying out their public duty.  Again, substance abuse and alcohol are likely to be relevant factors.[180]

   [178] Book of Materials Vol 3, 924 - 925 [101].

   [179] Book of Materials Vol 3, 925 [102].

   [180] Book of Materials Vol 3, 925 [103].

9. Ms Hasson is of the opinion that each scenario has the potential to cause significant physical or psychological harm to the victims, particularly if a weapon is used.[181] 

   [181] Book of Materials Vol 3, 925 [104].

10. Ms Hasson suggested that monitoring the respondent's connections and associations may be useful to manage his risk of reoffending, monitor his drug use and to obtain an accurate understanding of his psychosocial adjustment.[182]  Regular urinalysis will be required, as will ongoing counselling to develop motivation for change, build emotional regulation, self-management and coping skills, perspective taking ability, problem solving and consequential thinking skills.[183]  It will be important for him to maintain a stable emotional state and he will need support during times of stress.  An important goal of intervention will be increasing his sense of personal agency and control.[184]

    [182] Book of Materials Vol 3, 926 [108].

    [183] Book of Materials Vol 3, 926 [110].

    [184] Book of Materials Vol 3, 926 [110].

11. Ms Hasson gave evidence in which she confirmed her opinions as expressed in her report.  Like Dr Pyszora, Ms Hasson did not see the utility in a curfew in managing the respondent's risk of re‑offending.[185]

    [185] ts 67.

12. Ms Hasson assessed the respondent as presenting a high risk of serious offending if not subject to a restriction order.[186]  

    [186] ts 58; Book of Materials Vol 3, 927 [116].

13. In Ms Hasson's view, the 'bare minimum' period of any supervision order would be 2 years, and that would require a big commitment on the part of the respondent.  In her view, the maximum appropriate period was 7 years.  She considered that it was unlikely that any change or reduction in risk would eventuate until about the 5 year mark.[187]

Treatment Options Report dated 6 October 2022

[187] ts 62.

1. The respondent has attended individual psychological counselling sessions on 10 occasions since 30 June 2022 and the psychologist, Mr Summerton, has reported that the respondent engages in the sessions.[188]

   [188] Book of Materials Vol 3, 847 [6].

2. The respondent also attended an assessment interview with Wungening Aboriginal Corporation for substance abuse counselling on 27 September 2022.[189]

   [189] Book of Materials Vol 3, 847 [7].

3. Should the respondent be placed on a supervision order, both of these treatment options will continue. 

Community Supervision Assessment Report dated 26 October 2022

1. This report was authored by Jennifer Sullivan, a Senior Community Corrections Officer who has, for the majority of the interim supervision order's duration, been responsible for the supervision of the respondent.  In evidence, it appeared that Ms Sullivan did not seem to be fully aware of all of the contents of the report.  She suggested some parts had been changed by another party before she signed it, and she had not been made aware of those changes.[190]

   [190] ts 72.

2. Ms Sullivan noted that since July 1999, the respondent has spent 7,228 days in custody compared with 1,271 days in the community.  The longest continuous period he has spent in the community is 274 days.[191]

   [191] Book of Materials Vol 3, 930.

3. Ms Sullivan related the respondent's urinalysis history (as set out above) and made recommendations in relation to conditions, should a supervision order be made.[192]  He remains on the methadone program, but failed to engage with Next Step regarding substance abuse counselling and was considered to be unmotivated to engage.  He was referred to Wungening Drug and Alcohol Service but had failed to fully engage at the time of her report.[193]  Since then, the respondent has advised that he has attended the service, which was confirmed by GPS monitoring.[194]

   [192] Book of Materials Vol 3, 938 - 940.

   [193] Book of Materials Vol 3, 940.

   [194] ts 70.

4. The respondent has attended all scheduled sessions with a Senior Counselling Psychologist and is reported to have engaged well, although he has raised concerns about confidentiality.[195]

   [195] Book of Materials Vol 3, 940.

5. The respondent has not raised any specific concerns relating to his ability and willingness to comply with a supervision order under the HRSO Act.  He insists he has no intention of ever committing a violent offence again, citing his motivation as spending time with his mother and daughter.  However, Ms Sullivan noted that the respondent's ongoing illicit substance use and poor motivation to address it is likely to be problematic for him.[196]

   [196] Book of Materials Vol 3, 942.

6. The respondent has accommodation available to him with his partner and his 11‑year-old daughter.  His partner has prior criminal convictions, and has been the victim of violent incidents at the hands of the respondent.  However, the latter were more than 12 months ago, and the residence is considered suitable.[197]

   [197] Book of Materials Vol 3, 942.

7. The respondent has recently expressed interest in seeking employment, although had not yet engaged with the assistance on offer.[198] 

   [198] Book of Materials Vol 3, 942 - 943.

8. Ms Sullivan recommended conditions be imposed on the respondent to enable him to be directed to group intervention and specialist engagement.  She also recommended conditions to enable (but not require) monitoring of the respondent's movements and associations, in an attempt to monitor early warning signs of elevated risk.[199]

   [199] Book of Materials Vol 3, 944 - 945.

9. Ms O'Sullivan was asked if consideration had been given to easing the to the respondent's curfew, which had been set at between 7.00 pm and 7.00 am since his release on the interim supervision order.  She responded 'I don't believe it's standard practice to ease any restrictions during an interim order.  That would be during a continuing order.'[200]  It is unclear what rationale there is for such a position.

   [200] ts 78.

10. The ability to impose a curfew was recommended by Ms Sullivan, as a strategy to prevent elevated risk and detect early warning signs.[201]  This recommendation was maintained by Ms Sullivan in her evidence, despite the position Dr Pyszora and Ms Hasson took in relation to the imposition of a curfew.[202]

    [201] Book of Materials Vol 3, 945.

    [202] ts 88

11. If the respondent is made subject to a Supervision Order, Ms Sullivan proposed 32 conditions be imposed.[203] 

    [203] Book of Materials Vol 3, 946 - 948.

Is the respondent a high risk serious offender? 

1. The respondent concedes that he is a high risk serious offender.[204]  Notwithstanding his concession, it is necessary that I be satisfied to the required standard 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.

Factors set out in s 7(3)(a) – (j) of the HRSO Act

[204] ts 35.

1. As is required by s 7(3)(a), (b) and (g) of the HRSO Act, I have had regard to the reports prepared under s 74 for the hearing of the State's application, including the extent to which the respondent cooperated with the examinations of the experts, the materials produced by the State, and the respondent's antecedents and criminal history.  I have also considered the Treatment Options Report of Ms Thatcher and the Community Supervision Assessment report of Ms Sullivan.  Further, as I have already set out, I have considered previous reports and assessments in relation to the respondent. 

2. The reports demonstrate that the respondent continues to have significant outstanding treatment needs.  Most significantly, he remains ambivalent about abstaining from drug use, and has continued to use illicit drugs while on the interim supervision order. 

3. From the totality of the evidence, it is clear, in my view, that the respondent's ability to remain offence free is inextricably linked to his ability to substantially abstain from the use of illicit substances.  His lack of commitment to abstention reflects his lack of insight in relation to his offending, and his perception that he is justified in using substances when external factors create stressful situations for him.  In turn, this demonstrates his lack of coping and problem-solving skills. 

4. The respondent appears to have unwarranted confidence that his powers of self‑control alone will prevent a recurrence of his previous pattern of relapse into substance abuse followed by impulsive and dangerous offending.  In effect, he believes he can maintain a 'safe' level of illicit substance use and otherwise remain offence free.  Accordingly, he resists supervision and support and fails to engage appropriately in substance abuse treatment measures. 

5. The respondent also requires ongoing individual counselling to address the impacts of his previous traumatic experiences, including his experiences of violence in his childhood and the tragic death of his sister.

6. In my view, the respondent has a propensity, as that term was defined by Murray AJA in The State of Western Australia v Bellamy,[205] to commit serious offences in the future, as long as his treatment needs remain outstanding.  As I have indicated, his offending follows a clear pattern, involving relapse into significant levels of substance abuse, followed by offending to address his needs, whether they be transport or obtaining money to purchase more drugs.  That offending invariably involves threats and is likely to involve a weapon, increasing the likelihood of violence and serious injury. 

   [205] The State of Western Australia v Bellamy [2013] WASC 467 [70].

7. While the respondent has participated in numerous programs during his terms of imprisonment, he has made limited gains and has, in general, failed to demonstrate a capacity to put any skills developed into practice in the community.  There were signs that he had modified his behaviour in custody such that he was markedly less disruptive towards the end of his most recent term.  In some cases, his participation appeared to be less than complete, suggestive of a somewhat transactional approach to the program and its role in him securing early release rather than a genuine desire to make positive change.  He remains resistant to any residential drug rehabilitation program. 

8. Both Dr Pyszora and Ms Hasson are of the opinion that there is a high risk of the respondent committing a serious offence if he were not made subject to a restriction order.  In my view, their evidence is both acceptable and cogent, with their conclusions based on the available evidence and well explained.  Accordingly, I find that there is a high risk the respondent will commit a serious offence if not made subject to a restriction order.

9. The nature of the risk posed by the respondent is of serious threats or actual violence with the potential to seriously endanger the life, health and safety of others, and to cause significant physical and/or psychological harm.  His potential victims range from strangers to acquaintances and family members, including his intimate partner.  As such, there is a clear need to protect the community from the risk of the respondent committing a serious offence. 

Is the risk that the respondent will commit a serious offence unacceptable?

1. I have found that the risk of the respondent committing a serious offence if not subject to a restriction order is high.  The potential impact of the type of serious offence which the respondent is at risk of committing involves severe harm to members of the community at large.  Against that, I must balance the likely consequences to the respondent of finding that he constitutes an unacceptable risk, those consequences being considerable limits on his liberty regardless of the type of restriction order imposed.

2. As a result of the combination of level of risk and potential impact if that risk comes to pass, I am satisfied that the risk that the respondent will commit a serious offence unless subject to restriction is an unacceptable one.  I make that finding taking into account the fact that, while the consequences of such a finding are very significant, the respondent also has the capacity to substantially reduce the impact of such a finding upon him by embracing the support and assistance offered to him to help him reduce his reliance on illicit substances and to seek productive employment.

Is it necessary to make a restriction order to ensure adequate community protection against the unacceptable risk that the respondent will commit a serious offence?

1. In my view, the evidence adduced in this matter compels the conclusion that it is necessary to make a restriction order to ensure adequate community protection against the risk I have outlined. 

2. If the respondent is not supervised closely, and if he is not provided with the level of intensive support which is provided under a restriction order, the prospects of the respondent committing a serious offence are high.  The adequate protection of the community requires that he be carefully monitored and supervised to reduce that risk, and also provided with intensive support to enable him to develop the skills, community networks and attitudes which will reduce his risk further in the future. 

3. I am satisfied of that necessity to a high degree of probability.

Continuing detention order or supervision order? 

1. Both Dr Pyszora and Ms Hasson are of the opinion that the respondent's risk can be properly managed if he is made subject to a restriction order, in this case, a supervision order. 

2. The reports of Ms Thatcher and Ms Sullivan also support the conclusion that the respondent's risk of committing a serious offence is able to be sufficiently managed with the imposition of a supervision order with appropriate conditions.

3. The State concedes that a detention order is not necessary in this case.[206] 

   [206] ts 35, 93.

4. In my view a supervision order would provide the appropriate level of restriction in the case of the respondent.  However, it is necessary for the respondent to satisfy the court, on the balance of probabilities, that he will substantially comply with the standard conditions of a supervision order.[207]

Has the respondent satisfied the court on the balance of probabilities that he will substantially comply with the standard conditions? 

[207] HRSO Act s 29.

1. The respondent did not give or adduce evidence at the hearing.  However, there is evidence on the State case which enables me to determine this issue. 

2. In The State of Western Australia v Gorham[208] Archer J, citing Fiannaca J's observations in Hart, said:

   …his Honour made a number of other useful observations in relation to the assessment of prior contraventions, to the following effect:

   (1) self‑evidently from the statutory scheme, the fact that the respondent has contravened the conditions of a supervision order will not necessarily result in a continuing detention order;

   (2) given the onerous nature of supervision orders, missteps are to be expected; and

   (3)the frequency or regularity of contraventions might inform the question of whether the person will substantially comply.

   [208] The State of Western Australia v Gorham [2022] WASC 353 [31].

1. Having regard to the number of contraventions of which the respondent has been convicted while on the interim supervision order, those observations are of considerable relevance to this matter.

2. This is particularly so in light of the fact that the omission of a condition that the respondent not use prohibited drugs was instead the subject of a lawful written direction made by a CCO under condition 2 of the interim order, which meant that the respondent had breached a standard condition of the order on multiple occasions. 

3. The respondent has an entrenched substance abuse disorder which has always been part of his adult life.  While he has had more than a few 'missteps', in my view he continues to achieve, albeit slowly, a greater realisation of the contribution he needs to make to his own rehabilitation and ultimately a life free of restriction. 

4. I have formed this view because the respondent has attended all of his appointments, engaged with the psychologist, and is taking tentative steps towards seeking some of the vital supports which will result in positive progress. 

5. Further, since the imposition of the suspended imprisonment order upon the respondent on 6 October 2022, the respondent has managed to comply with all of the conditions of his order, including abstaining from illicit drugs.  While it has only been a short time, this is an additional indication that the respondent's asserted desire to stay out of custody is genuine and, to some extent, effective motivation.

6. Accordingly, I am satisfied that the respondent has proved, on the balance of probabilities, that he will substantially comply with the standard conditions of a supervision order. 

Conditions and duration of order

1. In my view, there is insufficient justification on the evidence to warrant the imposition of conditions enabling a curfew to be imposed on the respondent.  Neither expert was able to see any utility in the condition in the respondent's case.  Further, a curfew is a very significant measure, and it is, in my view, inappropriate to include conditions enabling a curfew to be imposed solely on the basis that at some point in the future it might be considered desirable.  While the State submitted that a curfew provides 'structure', Dr Pyszora was of the view that it had already served that purpose and was no longer relevant to the reduction of risk.

2. On behalf of the respondent, it was submitted that the condition regarding approval of employment by the CCO should be amended to enable the respondent to take up employment or volunteer work and to give the CCO a power to direct him to cease it if inappropriate.[209] 

   [209] ts 98.

3. It was not clear how the condition as framed, requiring as it does that the CCO give approval in advance, would substantially inhibit the respondent in his search for employment.  Indeed, at this stage there is no evidence that the respondent has seriously sought employment.  However, there is good reason for ensuring in advance that the respondent does not engage in inappropriate work activity or at inappropriate locations. 

4. Ms Sullivan gave evidence that, while the Risk Management Team would be required to be engaged to approve any employment or volunteer work, decision making in this regard would be expedited.[210] 

   [210] ts 79.

5. On balance, I am satisfied that the condition should remain as is.

6. The full set of conditions to be imposed is set out in the schedule to these reasons. 

7. After carefully considering the evidence of Dr Pyszora and Ms Hasson, I am satisfied that the appropriate term of the order is one of 4 years and 6 months. 

Conclusion

1. I am satisfied, to a high degree of probability, that it is necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence.  Accordingly, I am satisfied that the respondent is a high risk serious offender within the meaning of the HRSO Act. 

2. I am also satisfied that a supervision order is sufficient to adequately protect the community against the risk identified, and that a detention order is not necessary to do so.

3. I am also satisfied that the respondent has established, on the balance of probabilities, that he will substantially comply with the standard conditions of a supervision order. 

4. In my view, the appropriate term of the order is 4 years and 6 months and the appropriate conditions are as set out in the schedule to these reasons. 

SCHEDULE A

IN THE SUPREME COURT OF WESTERN AUSTRALIA

SO 5 of 2022

IN THE MATTER of the High Risk Serious Offenders Act 2020

THE STATE OF WESTERN AUSTRALIA  Applicant

-and-

DANIEL RALPH BROWN    Respondent

_________________________________________________________________________

SUPERVISION ORDER MADE BY THE HON JUSTICE FORRESTER
ON 21 NOVEMBER 2022
_________________________________________________________________________

Pursuant to section 48(1)(b) of the High Risk Serious Offenders Act 2020 (WA), the Court, having found that the Respondent is a high risk serious offender within the meaning of section 7(1) of the High Risk Serious Offenders Act 2020 (WA), makes a supervision order in relation to the Respondent, for a period of 4 years and 6 months from 22 November 2022, on the following conditions:

You, DANIEL RALPH BROWN, must:

STANDARD CONDITIONS REQUIRED BY THE HRSO ACT

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

1. Report to and receive visits from, a Community Corrections Officer as directed by the Court.

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

3. Be under the supervision of a Community Corrections Officer, which includes, comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32).

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

1. Not commit a serious offence during the period of the Order.

1. Be subject to electronic monitoring under section 31.

ADDITIONAL CONDITIONS
Residence

1. Take up residence at [address redacted] and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer (CCO) assigned to you.

Reporting to a CCO and supervision by a CCO

1. Be under the supervision of a CCO, and comply with the lawful orders and directions of a CCO.

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

Attendance at programs or treatment

1. Attend all appointments, receive visits, consult and engage with any medical practitioner, psychiatrist, psychologist, mentor, counsellor, support service and/or support person nominated by a CCO, as directed by a CCO.

1. Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious re-offending, as directed by a CCO.

Reporting to WA Police

1. Report to the Officer-in-Charge of the High Risk Serious Offender team at the Hatch Building, 144 Stirling Street, Perth WA 6000 within 48 hours of your release from custody, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the High Risk Serious Offender team or his/her delegate.

1. If requested, permit Police Officers to enter and search your person, residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this Order and allow the seizure of any such items that the Police Officers believes to contravene the conditions of the Order.

1. Remain at your premises and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the provisions of the High Risk Serious Offenders Act 2020.

Disclosure/Exchange of Information

1. Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, inclusion confidential information.

1. Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any partners, potential partners, associates or potential associates and, where appropriate to disclose to them confidential information including your offending history.

Restrictions on contact with Victims

1. Except with regard to [name redacted], have no contact, directly or indirectly, with the victims of your 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.

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

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

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 prescriber.

Prevention of high-risk situations

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

2. Provide a valid sample pursuant to Condition 22.

3. Not remain in the presence of any person who is affected by prohibited substances, or you ought to know are affected by prohibited substances, unless the identity of such person is approved in advance by the CCO.

4. Not remain in any place where prohibited drugs are being consumed, or if such place is your approved address, withdraw from that part of the residence in which such consumption is taking place, or exit that person from your residence.

5. 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.

1. Not to behave in an intimidatory, threatening or emotionally abusive manner towards [name redacted]

1. You must not assault, threaten, insult or use abusive language to a member of the departmental staff or an agent providing a service on behalf of the Department of Justice.

1. To disclose and provide reasonable details of your activities, movements and associations in the community, at the request of your CCO from time to time.

   _______________________________

   THE HON JUSTICE FORRESTER

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

Signed by the Respondent  _________________________________

DANIEL RALPH BROWN

In the presence of:      _________________________________

Name and address:       _________________________________

Date:     _________________________________

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

AT

Associate to the Honourable Justice Forrester

21 NOVEMBER 2022