The State of Western Australia v Brown [No 3] - [2024] WASC 479

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- BROWN [No 3] [2024] WASC 479
CORAM:   FIANNACA J
HEARD:   7 OCTOBER 2024, 22 NOVEMBER 2024 & 5 DECEMBER 2024
DELIVERED          :   13 DECEMBER 2024
PUBLISHED           :   16 DECEMBER 2024
FILE NO/S:   SO 5 of 2022
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
DANIEL RALPH BROWN
Respondent

Catchwords:

High risk serious offender - Contravention of Supervision Order - Turns on own facts

Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

Supervision order made on 21 November 2022 rescinded
Continuing detention order made

Representation:

Counsel:

Applicant	:	Ms T Hollaway
Respondent	:	Mr D Jones

Solicitors:

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

Cases referred to in decision:

Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393
Director of Public Prosecutions (WA) v Hart [2019] WASC 4
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206
The State of Western Australia v CF [No 2] [2022] WASC 424
The State of Western Australia v Daniel Ralph Brown [No 2] [2022] WASC 388
The State of Western Australia v Mills [No 4] [2024] WASC 348
The State of Western Australia v ZSJ [2020] WASC 330

FIANNACA J:

The application and its history

Until 16 October 2023, Daniel Ralph Brown (the respondent) was subject to a supervision order made under s 48(1) of the High Risk Serious Offenders Act 2020 (WA) (the Act). The order was made by Forrester J in the Supreme Court on 21 November 2022, having found that the respondent was a high risk serious offender under the Act.[1] The supervision order imposed conditions that restricted aspects of the respondent's freedom and placed obligations on him while he was in the community.
[1] The State of Western Australia v Daniel Ralph Brown [No 2] [2022] WASC 388 (Brown [No 2]).
On 12 October 2023, the State of Western Australia (the applicant) made an application, under s 53(2) of the Act, for an order under s 55 of the Act that the supervision order be rescinded, and that the court make a continuing detention order in respect of the respondent. In the alternative, the applicant sought an order under s 55(1)(b) that the supervision order be amended in such terms as the court sees fit.
The application was made on the basis that the respondent allegedly contravened conditions of the supervision order; alternatively, that he was likely to contravene a condition of the supervision order. In essence, the contraventions involved the respondent consuming prohibited drugs on three occasions, in January and September 2023, and failing to comply with the reasonable direction of a community corrections officer (CCO) in September 2023. However, the application was brought against a background of previous contraventions by the respondent of an interim supervision order that was in place prior to 22 November 2022, pending the determination of the restriction order application heard by Forrester J. Those contraventions had also involved the use of prohibited drugs.
Further, in relation to the contravention in January 2023, the respondent had pleaded guilty to an offence under s 80(1) of the Act (of contravening a condition of the supervision order), and had been sentenced for that offence in the Magistrates Court on 7 March 2023 to a term of 5 months' imprisonment. That sentence was affected by the fact that the contravention resulted in a breach of a suspended imprisonment sentence of 6 months and 1 day that had been imposed in the Magistrates Court on 6 October 2022 for a contravention of the interim supervision order, which also concerned the use of a prohibited drug. When he was sentenced on 7 March 2023, the respondent was required to serve 5 months of the term that had been suspended. He committed the contraventions in September 2023 within a period of two weeks after he had completed the term of imprisonment and had been released into the community subject again to the supervision order.
On the basis of both alleged and established conduct, the applicant contended that the respondent was likely to contravene a condition of the supervision order.
The applicant also sought an order pursuant to s 53(2)(b) of the Act that the respondent be detained in custody pending the determination of the application. Such an order may be made by the court under s 56(2)(b) of the Act. The basis for seeking that order was that the respondent's recent drug use, at that time, suggested that his risk of committing a serious offence was so elevated that the court could not be satisfied at that stage of the proceedings that the respondent would substantially comply with the standard condition of the supervision order that he must not commit a serious offence. The relevance of substantial compliance is discussed later in these reasons.
The application came before me for directions on 16 October 2023. At that stage, the respondent was in custody on remand for the charges under s 80(1) of the Act and other related charges. He had not been granted bail, but indicated at the hearing that he intended to apply for bail in the Magistrates Court at his next appearance.
The application was supported by an affidavit dated 12 October 2023 of Tanya‑Maree Hollaway, an Assistant State Solicitor employed in the State Solicitor's Office, who also appeared as counsel on the application, and an affidavit of Jennifer Sullivan, affirmed 12 October 2023. Ms Sullivan is a Senior Community Corrections Officer (SCCO) employed by the Department of Justice, Corrective Services division, within the Community Offender Monitoring Unit (COMU).
I was satisfied, on the materials in those affidavits, that the respondent was properly before the court under s 53(1)(b) of the Act as an offender who was charged with an offence under s 80(1) of the Act. Ordinarily, orders would have been made at the directions hearing, listing the application for hearing and requiring the respondent to undergo examination by one or more qualified experts for the purpose of preparing a report or reports in accordance with s 54 of the Act, and for the preparation of any report in accordance with s 75 of the Act. However, the applicant was unrepresented at that stage, and the directions hearing was adjourned to give the respondent time to obtain legal representation.
Although the directions hearing was adjourned, I was required to consider, pursuant to s 56 of the Act, whether the respondent should be detained in custody under the Act, pending the determination of the application, or whether I should make no order, in which case the respondent would be released subject to the supervision order if he succeeded in obtaining bail in the Magistrates Court. The question under s 56 was whether I considered a detention order to be necessary.
Ultimately, I was satisfied that it was necessary to make an order detaining the respondent in custody (the interim detention order), for reasons I gave extemporaneously.[2] However, as the respondent was not represented on 16 October 2023, I considered it appropriate to limit the duration of the order until the next hearing, so that I could receive submissions from the respondent's counsel, if one was to be appointed. To his credit, the respondent had made submissions that dealt with some matters relevant to the question I needed to determine (in part consisting of factual assertions), but I did not consider them to comprise the full argument that might be put on his behalf. I note that I made it clear in my reasons given on 16 October 2023 that, while I was satisfied at that point in time that the risk to the community of the respondent committing a serious violent offence if he was released was such as to justify a detention order for a short period, that said nothing about what conclusion the court might come to once it had the benefit of full argument in respect of the matter. Similarly, it is trite that a decision made in the course of procedural hearings, pending the hearing of the application, and before the respondent had been assessed by an expert for the purposes of the contravention proceedings, could not determine the outcome of those proceedings.
[2] ts 140 - 151, 16/10/23 (reproduced at pages 188 - 199 of Vol 1 of the Book of Materials tendered in the application on 7 October 2024).
At the next hearing on 20 October 2023, the applicant had not yet obtained legal representation. I again adjourned the directions hearing and extended the interim detention order to the next hearing.
At the next hearing, on 7 November 2023, the respondent was represented by Mr David Jones of counsel. Mr Jones submitted that the contravention charges pending in the Magistrates Court should be dealt with before the contravention application was heard. Mr Jones indicated that, while he could not consent to an extension of the interim detention order, he did not object, having regard to the circumstances. I extended the interim detention order accordingly. The usual programming orders were not made at that stage, as there was a preliminary matter that needed to be dealt with concerning disclosure of materials.
It is sufficient to note that, after 11 November 2023, there were a number of adjournments, until programming orders were made on 28 March 2024 for examination of the respondent by Ms Julie Hasson, a qualified psychologist who had previously prepared a report for the proceedings in 2022, and the preparation of reports. In the meantime, as a result of a minute consent orders filed by the parties, on 11 January 2024 I made an order that the respondent be detained in custody pursuant to s 56(2)(b) of the Act during any time that he is not lawfully in custody until the final determination of the application.
The contravention application was eventually heard by me on 7 October 2024. By that stage, the applicant had been dealt with in the Perth Magistrates Court in respect of the contravention offences. As will appear later, the prosecutions were resolved by the respondent pleading guilty to four of the charges, and the others being discontinued. Three of the charges were for contravention offences, one being for not complying with a reasonable direction, the other two being for consuming prohibited drugs. The fourth charge was for using a prohibited drug, being an offence under the Misuse of Drugs Act 1981 (WA), which was related to one of the contravention charges. The respondent was sentenced on 18 July 2024 by the imposition of a global fine of $1,000.
At that hearing on 7 October 2024, the applicant relied only on the charges to which the respondent had pleaded guilty as the contraventions supporting the application, although the respondent's past contraventions for which he had been sentenced in 2022 and 2023 remained relevant as part of the background context for the application.
The applicant tendered a Book of Materials (BOM) in two volumes, which included the report prepared by Ms Hasson for these proceedings. I will refer to the contents in more detail below. The applicant also called Ms Hasson and Ms Tracy Jane Lilly, a Senior CCO who had endorsed a performance report in respect of the respondent, to give oral evidence. The applicant had also intended to call Ms Chantelle Place, a forensic psychologist who is the Manager of the Forensic Psychology Assessment Team at the Department of Justice, who prepared a Treatment Options Report in respect of the respondent. Ms Place was unable to give evidence on 7 October 2024. The application was adjourned, therefore, part heard.
The hearing continued on 22 November 2024, when Ms Place gave evidence and the applicant tendered further documentary evidence. At the conclusion of the applicant's case, Mr Jones sought time to take instructions from the respondent as to whether he wished to give evidence or adduce other evidence. Upon resumption, Mr Jones informed the court that the respondent wished to adduce evidence on affidavit, but that Ms Hollaway had indicated the applicant would want to cross-examine the respondent on any affidavit he adduced. During the course of discussion about adjourning the hearing for those purposes, the respondent became unsettled, indicating that he no longer wished to adduce evidence, speaking in an aggressive tone and using coarse language. Ultimately, he said he was going through a mid-life crisis, and that he wanted to leave.[3] With the consent of his counsel, I stood the respondent down and continued further discussion in his absence. The matter was adjourned to 5 December 2024. I made orders in relation to the filing of an affidavit by the respondent.
[3] ts 276, 22/11/24.
The respondent did not file an affidavit. This was due to Mr Jones not being able to take instructions from the respondent in person because booked visits to the prison were cancelled by the prison as a result of staff shortages.[4]
[4] ts 282, 5/12/24.
On 5 December 2024, the respondent elected to give oral evidence and he was cross‑examined. At the conclusion of his evidence, I heard submissions from the parties. I then adjourned the application to 13 December 2024 for decision.
On the evidence adduced in the application, I am satisfied that the respondent has contravened the supervision order made by Forrester J on 22 November 2022. I am also satisfied that a supervision order would not provide adequate protection of the community at this time against the unacceptable risk that the respondent would commit a serious offence. In particular, I am not satisfied that the respondent would substantially comply with the standard conditions of a supervision order. Therefore, it will be necessary to rescind the supervision order made by Forrester J, and to make a continuing detention order in respect of the respondent.
These are my reasons for those conclusions.

Statutory provisions and legal principles

Section 55(1) of the Act relevantly provides:
(1)If, on the hearing of an application under section 53, the court is satisfied on the balance of probabilities that the offender to whom the application relates has contravened or is contravening a condition of a supervision order, the court must —
(a)rescind the supervision order and make a continuing detention order in relation to the offender; or
(b)except as provided in section 29, make an order amending the conditions of the supervision order, or extending the period for which the offender is to be subject to the supervision order, or both; or
(c)except as provided in section 29, make an order affirming the supervision order without amendment or extension.
…
(2)In deciding which order to make under subsection (1) or (2), the paramount consideration is to be the need to ensure adequate protection of the community.
In The State of Western Australia v CA [No 3] [2023] WASC 144 (CA [No 3]), I outlined the salient principles applicable to contravention proceedings, drawing on previous authorities, which I adopt for present purposes, as follows:[5]
[5] CA [No 3] [28] - [35]. See also Director of Public Prosecutions (WA) v Hart [2019] WASC 4 (Hart) [13] ‑ [21], where I had earlier identified the same principles in the context of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). As I noted in CA [No 3], I consider that the jurisprudence in this regard developed in respect of the DSO Act remains relevant in construing and applying the Act, with appropriate adaptation in cases involving non-sexual offences, for reasons I outlined in The State of Western Australia v ZSJ [2020] WASC 330 [30] - [34].
(1)Contravention proceedings are in respect of a person who was made subject to a supervision order, having been found to be a high risk serious offender on a restriction order application under s 35(1) of the Act.[6] That means that the court found it was 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.[7] In contravention proceedings, it is to be assumed that the respondent remains a high risk serious offender. The court is not required to make that determination again. That follows from the orders the court may make under s 55(1) of the Act.
(2)Relevantly for present purposes, the court is required only to determine, on the balance of probabilities, whether the respondent has contravened a condition of the supervision order and, if so, which order should be made from those listed in s 55(1),[8] bearing in mind that, by virtue of s 55(3), the paramount consideration is the need to ensure the adequate protection of the community.
(3)The first option under s 55(1) is for the court to rescind the supervision order and make a continuing detention order, which is an order that the offender be detained in custody for an indefinite term for control, care, or treatment.[9]
(4)For the purposes of the second option under s 55(1), being the amendment or extension of the supervision order, it is necessary to have regard to the statutory provisions relevant to a supervision order. It is an order that the offender, when not in custody, be subject to stated conditions that the court considers appropriate, in accordance with s 30 of the Act.[10] Section 30 stipulates standard conditions that the court must include in a supervision order, and otherwise provides for various other matters that may be included as terms of a supervision order, and the purposes for which terms may be included.
(5)The third option under s 55(1), which is to affirm the supervision order, would require the court to consider whether the conditions of the supervision order previously made are adequate to protect the community from the risk that the offender will commit a serious offence.
(6)When considering which order to make under s 55(1) of the Act, the court should choose the order that is least invasive of the respondent's right to be at liberty, provided the community will be adequately protected. If the court is not satisfied that the community could be adequately protected by releasing the respondent again on the supervision order, with or without amendment or extension (which includes the situation in which the court is simply left in doubt about that), it must rescind the supervision order and make a continuing detention order.[11]
(7)Moreover, the authority to amend or extend the supervision order, or to make an order affirming the supervision order without amendment or extension, is subject to s 29 of the Act. By s 29, the court cannot make, affirm or amend a supervision order unless itis satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of that supervision order. The onus of proof that he will substantially comply with the standard conditions of the supervision order is on the respondent.[12] The court must have regard to all evidence adduced in the proceedings when making that determination.[13] The court may reach satisfaction that the respondent will substantially comply on the basis of the evidence adduced by the applicant.
(8)The words 'will substantially comply with' should be given their ordinary meaning, consistent with the purposes of the legislation and the standard 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 offence.[14]
(9)Factors that are relevant to that assessment include the respondent's history of compliance and non‑compliance, his attitude to the conditions of the supervision order, his capacity to comply with the conditions, what measures are in place to ensure he substantially complies, 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.[15]
[6] Being an application by the State for either a continuing detention order or a supervision order on the basis that the respondent is a high-risk serious offender.
[7] The Act s 7(1).
[8] Hart [16].
[9] The Act s 26(1).
[10] The Act s 27(1).
[11] Hart [18]; Director of Public Prosecutions v Williams [2007] WASCA 206; (2007) 35 WAR 297, 319 [86] (Wheeler JA, Le Miere AJA agreeing) - in which the court was dealing with the DSO Act and the effect of s 17(2), which had the same effect as s 55(3) of the HRSO Act.
[12] The Act s 29(2).
[13] Hart [19].
[14] Hart [52].
[15] Hart [50].

Further factors that will be relevant to the assessment of whether the respondent will substantially comply with the standard conditions of a supervision order include: the offender's motivation to remain offence free and in the community; his willingness to participate in any relevant treatment program; abstinence from drugs, where that is a relevant risk factor; the respondent's conduct in prison; and demonstrated gains in treatment, self-management and life skills.[16]
[16] The State of Western Australia v CF [No 2] [2022] WASC 424 (Archer J) [52].
Ultimately, before the respondent can be released on a supervision order, 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 Act, which is the adequate protection of the community against the unacceptable risk that the respondent will commit a serious offence.[17]
[17] Hart [52(6)].
In deciding whether the supervision order will provide adequate protection of the community, the court must take into account the conditions of the supervision order and any rehabilitation of the respondent that is apparent in the evidence.[18] As Hall J noted in Griffiths:[19]
The Act does not require that there be no risk of re-offending. Such a requirement could never be met, and the effect would be that no person to whom the Act applies would ever be released. The requirement is that any risk be reduced to a reasonably acceptable level. This will always require a careful weighing of the nature and degree of risk in the context of methods for the management and reduction of that risk.
[18] Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 (Griffiths) (Hall J) [103].
[19] Griffiths [107].
However, it is also apt to note that if the court is left in doubt as to whether a supervision order, with proposed conditions addressing relevant risk factors, would adequately protect the community, then having regard to the paramount consideration of ensuring adequate protection of the community, it would be necessary to rescind the supervision order and make a continuing detention order.[20]
[20] See Director of Public Prosecutions (WA) v Williams [2007] WASCA 206 [86], in the context of the equivalent of a restriction order hearing under the DSO Act.

The evidence

As I noted earlier, at the hearing on 7 October 2024, the Applicant tendered the BOM in two volumes, being exhibits 1 and 2. The first volume contains materials divided into the following categories:
(1)Materials provided by the Department of Justice, which include:
a.The application;
b.A copy of the respondent's criminal record;
c.Brown [No 2];
d.The supervision order made by Forrester J;
e.Documents relating to the respondent's conduct, management, substance use testing, and medical history while in custody, including a record of prison charges brought against him;
f.The interim detention order made by me on 7 November 2023; and
g.Transcripts of the directions hearings in this court in October and November 2023;
(2)Contravention materials, consisting of the prosecution notices and statements of material facts for the offences relating to the alleged contraventions, as well as the sentencing transcripts of 7 March 2023 and 18 July 2024 for the offences dealt with on those occasions;
(3)Historical assessment reports and documents, including the reports of the experts who examined the respondent for the purposes of the restriction order application heard by Forrester J, and parole assessment reports;
(4)Respondent's documents, being:
a.A letter from Dr Matthew Poole of the Derbarl Yerrigan Health Service, dated 11 October 2023; and
b.a letter from the respondent's de facto partner, Ms Rebecca Edgill, which is undated, but described as being from October 2023;
(5)Affidavits, being Ms Sullivan's affidavit referred to above, and an affidavit of Ms Emily Anne Macleod, a Legal Assistant employed by the State Solicitor's Office. Ms Macleod's affidavit related primarily to telephone call records and transcripts of calls made by the respondent from prison. The relevance of those will be evident in due course.
I note that the contravention materials in the BOM include materials in respect of charges that were discontinued in the Magistrates Court on 18 July 2024. I have not had regard to those materials in determining the application. I have only had regard to the four contraventions the applicant relied on at the hearing.
The documents referred to at [29(4)] were provided on behalf of the respondent on or before 16 October 2023. The letter from Dr Poole conveyed information from the respondent's mother, Jennifer May Jones, to the effect that the respondent had provided her with practical support before his most recent incarceration, and her belief that her wellbeing would be improved if the respondent were able again to provide such support.[21] Further, Ms Jones had indicated an expectation that the respondent would apply to be her carer upon his release.
[21] BOM Vol 1, 398.
The letter from Ms Edgill was addressed to the Magistrates Court and was in support of an application by the respondent for bail in that court. Apart from indicating that the respondent had not been given adequate opportunities or support to rehabilitate, Ms Edgill referred to the daughter she has with the respondent, submitting that it was important for her to build her relationship with the respondent. Ms Edgill also referred to the respondent's mother, suggesting she needed the respondent to care for her, particularly as they were noticing symptoms of what they believed was the onset of dementia.[22]
[22] BOM Vol 1, 399 - 401.
The second volume of the BOM consists of:
(1)A treatment progress report of Mr David Summerton, dated 11 May 2023;
(2)Particulars of the contravention allegations, dated 30 September 2024;
(3)A treatment progress report of Ms Chantelle Place, dated 4 September 2024;
(4)A psychological report of Ms Hasson, dated 11 September 2024; and
(5)A performance report of Ms Tracy Lilly, a SCCO, dated 21 September 2024.
The evidence also consists of the oral evidence given by Ms Hasson and Ms Lilly on 7 October 2024, and Ms Place on 22 November 2024, all of whom were called by the applicant, and the oral evidence given by the respondent on 5 December 2024.
The evidence also includes emails from Ms Amy Goode, Team Leader with COMU, relating to accommodation available to the respondent in the community and a rehabilitation program for which the applicant had applied (exhibits 3, 5 and 7), and an affidavit of Mr Martin James Clacy‑Lowe, sworn 24 October 2024 (exhibit 4). Mr Lowe is the Executive manager of the Serious Offender Registry in the Western Australia Police Force, and his affidavit related to an accommodation assessment in respect of the home of the respondent's mother, to assist in the determination of the suitability of the home as a residence for the respondent should he be released on the supervision order.
Finally, the evidence includes a letter from the Department of Communities dated 14 November 2024, concerning the status of the respondent's application for public housing.
The narrative and findings that follow are based on various aspects of the evidence I have outlined above.

Background

In brief outline, the background to the application is as follows.

The restriction order application

On 3 March 2022, the State of Western Australia applied for a restriction order to be made in respect of the respondent, and that he be subject to an interim detention order until the final determination of the restriction order application. At the time of the application, the respondent was serving a sentence of 5 and a half years' imprisonment for a number of offences, including the offence of armed robbery, which is a serious offence under the Act.
On 22 April 2022, at the preliminary hearing of the application pursuant to s 46 of the Act, Derrick J was satisfied on the evidence in the supporting affidavit that there were reasonable grounds for believing that the court might find that the respondent is a high‑risk serious offender. The respondent had conceded that to be the case. Derrick J set a date for the hearing of the application, made programming orders and released the respondent on an interim supervision order: The State of Western Australia v Brown [2022] WASC 138.

The restriction order hearing and decision

The restriction order application was heard by Forrester J on 2 November 2022. Her Honour gave her decision on 21 November 2022: The State of Western Australia v Brown [No 2] [2022] WASC 388 (Brown [No 2]). In Brown [No 2], Forrester J found that the respondent is a high-risk serious offender, as defined in the Act, and that the appropriate restriction order was a supervision order for a period of four and a half years.
These reasons should be considered in conjunction with her Honour's decision in Brown [No 2]. I adopt her Honour's findings in respect of the respondent's criminal history, including the offending that constitutes serious offending for the purposes of the Act, his background and history more generally.[23]
[23] Brown [No 2] [10] - [24], [43] - [56].
As the respondent's offending history is particularly important in informing the risk of the respondent committing a serious offence, it is convenient to reproduce Forrester J's account of the respondent's offending:[24]
[24] Brown [No 2] [10] - [14].
Index offences
INS 293 of 2017
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.
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.
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.
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.
Offending history
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 Act]. The most significant offending is summarised below.
IND 896 of 2015
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. On 10 March 2016, he was sentenced to 17 months' imprisonment backdated to 23 October 2014.
IND 1147 of 2003
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 childcare 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. 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).
INS 92 of 2002
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. On 31 May 2002, he was sentenced to 6 years' imprisonment (reduced for totality) partly cumulative on the term he was then serving.
IND 153 of 2002 and IND 153A of 2002
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. On 22 January 2002, the respondent was sentenced to 3 years' imprisonment cumulative on the term he was then serving.
IND 727 of 2000
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.
Charge PE 50815/11
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.
Charge JOO 13585/16
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.
Other offences
On numerous other occasions the respondent has been convicted of burglaries and stealing motor vehicles, as well as driving offences including reckless driving.
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 Act].
The respondent's personal history included a disrupted childhood after his mother separated from his father and formed a de facto relationship with another man. He lived for a period with his grandmother and an aunt, and when he returned to live with his mother, her partner was a bad influence, introducing the respondent to cannabis at the age of 10 years and inflicting violence on the respondent and his mother. The respondent's father was supportive of the respondent when he saw him, but he died in 2020. In these proceedings, the respondent referred to his father on a number of occasions as an example of someone who used drugs regularly but was never imprisoned for any offence, suggesting that drug use need not lead to other offending.
Another matter referred to by Forrester J, and which was mentioned by the respondent in these proceedings, was that, 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. That sense of injustice was evident in the respondent's evidence in these proceedings.
Forrester J noted that the respondent has had one significant relationship, with the victim of the assault occasioning bodily harm. The respondent had claimed that their relationship had been most stable since his release from prison, and that they led a quiet life. The respondent has a daughter who was aged 12 at the time of the restriction order proceedings. He had said that she motivated him to remain offence free.[25]
[25] Brown [No 2] [47].
Her Honour described the respondent's history of drug use as follows:[26]
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. However, he identified heroin as his drug of choice and the one he has the most difficulties abstaining from.
[26] Brown [No 2] [52].
At the time of the restriction order hearing, the respondent was on the methadone program, and had been on the program since November 2017.[27]
[27] Brown [No 2] [53].
Her Honour noted inconsistencies in the respondent's accounts concerning his substance use:[28]
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.
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.
[28] Brown [No 2] [54] - [55].
Her Honour set out the findings and opinions of the expert witnesses in the restriction order hearing, Dr Pyszora, a consultant forensic psychiatrist, and Ms Hasson. Those findings and opinions dealt with the risk factors that place the respondent at risk of committing a serious offence.[29] Both experts assessed the level of that risk. I adopt her Honour's outline of that evidence as part of the history of assessments of the respondent's risk of offending, without repeating it. However, I note the following matters of significance.
[29] Brown [No 2] [107] - [136], [137] - [149].

Dr Pyszora was of the view that the respondent fulfils the criteria for a diagnosis of antisocial personality disorder, and that he also displays traits of paranoid personality, which result in a pervasive distrust and suspiciousness of others and interpretation of their motives as malevolent.[30] However, Dr Pyszora noted that, for people who have antisocial personality disorder, their antisocial traits will commonly improve when they are in their 40s, and, as the respondent was 42, there was a good chance that he would be less inclined to act in antisocial ways, but this was complicated by the respondent's paranoid traits.[31] In my opinion, the paranoid traits referred to by Dr Pyszora were evident in these proceedings.
[30] Brown [No 2] [114].
[31] Brown [No 2] [115].
Dr Pyszora also considered that the respondent fulfilled the criteria for a substance use disorder, which, in relation to heroin and amphetamine, was severe.[32]
[32] Brown [No 2] [116].
Dr Pyszora considered that the respondent's impulsive and antisocial behaviour had become entrenched, leading to him spending the majority of his life in prison, which in turn had led to him becoming institutionalised, and rapidly returning to drug use, antisocial peer groups and reoffending on previous releases.[33] Dr Pyszora was of the view that the respondent had justified and minimised the seriousness of his previous offences, and that his antisocial cognitions, impaired judgment in the context of severe drug dependency and withdrawal, and lack of victim empathy, had enabled him to undertake robberies which the victims would have found extremely traumatic.[34] She found that the respondent had struggled to implement any gains from his treatment programs after his releases from prison, which reflected 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.[35] However, she considered that it was a positive that the respondent had engaged well with his SCCO and his psychologist on the interim supervision order.[36]
[33] Brown [No 2] [117].
[34] Brown [No 2] [118].
[35] Brown [No 2] [119].
[36] Brown [No 2] [119].
Dr Pyszora identified a number of risk factors upon assessing the respondent using an actuarial instrument and clinical guidelines. She was of the opinion that the respondent presents a high risk of committing a serious offence if his risk factors are not managed.[37] However, she considered there to be no imminent risk of such offending if the respondent's risk factors are managed under a supervision order.[38] She noted that warning signs would include relapse into drug use and/or association with antisocial and drug‑using peers.[39]
[37] Brown [No 2] [130].
[38] Brown [No 2] [133].
[39] Brown [No 2] [133].
Ms Hasson also used a risk assessment tool and clinical judgment. She was of the opinion that the respondent presents a high risk of serious offending if not subject to a restriction order.[40] Ms Hasson was of the view that the respondent's substance abuse is a major risk factor for him, and the respondent did not appear at that time to be at a stage where he was committed to remaining abstinent from drugs.[41] Forrester J also noted the following views expressed by Ms Hasson, which, in my view, continue to have relevance:[42]
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. 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.
[40] Brown [No 2] [148].
[41] Brown [No 2] [142].
[42] Brown [No 2] [143].
It is clear from the things said by the respondent to the expert witnesses for the restriction order hearing that he had difficulties reintegrating into society after his release from prison, which had resulted in his relapsing into substance abuse and associating with antisocial peers.[43]
[43] Brown [No 2] [138].
In concluding that the respondent is a high risk serious offender, Forrester J noted that there had been a pattern in the respondent's offending, involving a relapse into substance use, followed by impulsive and dangerous offending aimed at addressing his needs.[44] Sometimes those needs were to obtain transport.[45] I would interpose that this accounts for the fact that he has a large number of convictions for stealing motor vehicles and reckless driving. Further, it is apparent that, on occasions, such transport was required by the respondent to purchase drugs. On other occasions, when he did not steal a motor vehicle, his motivation appeared to be to obtain money so he could purchase more drugs[46] to maintain his drug habit, which included illicit drugs such as methylamphetamine and heroin. Heroin was identified to be the respondent's drug of choice, but he had also used methylamphetamine and other illicit drugs in the past.
[44] Brown [No 2] [170].
[45] Brown [No 2] [170].
[46] Brown [No 2] [170].
Forrester J considered, consistent with the opinions that had been expressed by the experts, that the respondent's lack of commitment to abstinence, his justification for using substances when faced with external stressors, his lack of coping skills and problem solving skills, and his unwarranted confidence in his ability to use self-control alone to keep him from relapsing, were all matters that indicated he could not be relied upon, without external controls, to manage his risk of committing serious offences in the future.[47] Of particular concern was that the respondent had a perception that he is justified in using substances when external factors create stressful situations for him.[48] Forrester J noted that the respondent remained ambivalent about abstaining from drug use, and he had continued to use drugs while on the interim supervision order.[49]
[47] Brown [No 2] [166] - [172].
[48] Brown [No 2] [167].
[49] Brown [No 2] [166].
There were also concerns that the respondent had been resistant to supervision and support, and that he had failed to engage appropriately in substance abuse treatment measures in the past. Her Honour noted that, despite participating in numerous programs, particularly during his imprisonment, the respondent had made limited gains.[50] Nevertheless, her Honour ultimately was satisfied, having regard to the opinions of Dr Pyszora and Ms Hasson, that, while the respondent posed a high risk of committing a serious offence if he was not subject to a restriction order, that risk could be adequately managed at that point in time in the community if he were subject to a supervision order. Both Dr Pyszora and Ms Hasson had expressed the opinion that the respondent's risk could be adequately managed under a supervision order if appropriate conditions were in place. The State conceded that a detention order was not necessary and that appropriate conditions could be imposed in a supervision order to manage the risk.
[50] Brown [No 2] [171].
Her Honour noted that the respondent has an entrenched substance abuse disorder, which has always been part of his adult life, and that, although there had been missteps in addressing his substance abuse, the respondent had made some progress in that regard.[51] At the time of the hearing before her Honour, the respondent had attended appointments addressing the issue.[52] He had engaged with a psychologist and had taken tentative steps towards obtaining support within the community.[53]
[51] Brown [No 2] [187].
[52] Brown [No 2] [188].
[53] Brown [No 2] [188].
Her Honour had regard to the fact that the respondent had returned positive urinalysis results for illicit substances when he had been on the interim supervision order that had been imposed by Derrick J. However, she observed that there had been no condition prohibiting the use of illicit substances at that time, although there had been a written lawful instruction issued by his CCO prohibiting his use of illicit substances.[54] On one hand, that was problematic for the respondent, because the requirement that the respondent comply with a lawful direction of a CCO is a standard condition of a supervision order.[55] Therefore, it was a matter that her Honour had to take into account in determining whether the respondent would substantially comply with the standard conditions of a supervision order, a matter that her Honour had to be satisfied about under s 29 of the Act. However, her Honour noted that, as at the time of the hearing, the respondent had complied with the conditions of the suspended imprisonment order imposed on 6 October 2022, including abstaining from illicit substances. Her Honour considered that such conduct indicated a desire, at that point in time, to stay out of custody, despite it having been for only a short period of time.[56] Of course, the respondent subsequently breached the suspended imprisonment order in January 2023.
[54] Brown [No 2] [186].
[55] Brown [No 2] [186].
[56] Brown [No 2] [189].
However, on the basis that there was some indication that the respondent would comply with conditions, in that he would abstain from drug use, Forrester J decided that his risk could be adequately managed in the community under a supervision order that contained 29 conditions. Notably, the conditions included the standard condition (condition 9) that required the respondent to be under the supervision of a CCO and comply with the lawful orders and directions of a CCO, and the following conditions relevant to drug use. Condition 21 was a condition that the respondent must not possess, consume or use any prohibited drugs, plants or other substances, to which the Misuse of Drugs Act applies. Condition 22 required the respondent to attend for and submit to urinalysis or other testing for alcohol or prohibited drugs as directed by his CCO or by a police officer. Finally, condition 23 required him to provide a valid sample pursuant to condition 22.

The respondent's contraventions

While he was in the community and subject to the supervision order, the respondent was required to provide urine samples in accordance with the conditions of that order, and he did so. Three of the contraventions that provide the foundation for the application involve drug use that was detected by the urinalysis testing.
As I stated above, the applicant ultimately relied on four contraventions that were set out in BOM Vol 2, although the significance of those contraventions needs to be assessed having regard to the respondent's previous contraventions and his general performance while subject to the supervision order.
The contraventions were as follows.

Contravention 1 (PE 3543/2023)

Condition 21 of the supervision order provides that the respondent must:
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 [him] by a person duly authorised under the Medicines and Poisons Act 2014, and [his] use is in accordance with the instructions of the prescriber.
On 13 January 2023, the respondent was directed to attend urinalysis testing on 16 January 2023 at PathWest at Royal Perth Hospital. The respondent attended and provided a sample as directed.
On 18 January 2023, the sample returned a positive result for methylamphetamine with a concentration of above 5000 ug/L, with the cut off being 150 ug/L. The result provided evidence that the respondent had used methylamphetamine.
On 19 January 2023, WA Police were notified, and the respondent was arrested.
On 27 March 2023, the Respondent pleaded guilty to the contravention charge and was sentenced to 5 months' imprisonment. I have referred to the circumstances of that sentence earlier in these reasons. By committing the offence, the respondent breached a suspended imprisonment order that had been imposed on 6 October 2024 for his contravention of the interim supervision order on 14 September 2024, by using heroin.[57]

Contravention 2 (PE 49181/2023)

[57] BOM Vol 1, 4.

Condition 4 of the supervision order provides that the respondent must:
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 [of the Act]).
On 18 September 2023, the respondent was issued a written lawful instruction to contact COMU every Monday, Wednesday and Friday, before 10.00 am.
On 20 September 2023, the respondent failed to make contact with COMU, as directed by his written lawful instruction.
The respondent was arrested on a charge under s 80(1) of the Act in respect of this contravention on 2 October 2023.[58] He was also arrested in respect of other charges, including the charge of using a prohibited drug, for which he was also sentenced on 18 July 2024.
[58] BOM Vol 1, 260.
On 18 July 2024, the respondent plead guilty to the contravention charge and was fined $100.

Contravention 3 (PE 49471/2023)

On 27 September 2023, the respondent was directed to attended PathWest Goderick Street Clinic, Perth for urinalysis testing. The respondent attended and provided a sample as directed.
On 2 October 2023, the sample returned a positive result for amphetamine (the concentration being above 5000 ug/L) and for methylamphetamine (the concentration being above 5000 ug/L). Again, the result provided evidence that the respondent had used amphetamine and methylamphetamine, which was a contravention of Condition 21 of the supervision order.
On 18 July 2024, the Respondent pleaded guilty to the contravention charge and was fined $100.

Contravention 4 (PE 49784/2023)

On 29 September 2023, the respondent was directed to attend East Perth Community Corrections Centre for urinalysis testing. The respondent attended and provided a sample as requested.
On 4 October 2023, the sample returned a positive result for amphetamine (with a concentration of 2707 ug/L), methylamphetamine (with a concentration of 5000 ug/L), morphine (with a concentration of 21,507 ug/L) and cannabis (with a concentration of 336 ug/L). Again, the result provided evidence that the respondent had used those drugs, which was a contravention of condition 21 of the supervision order. In fact, the respondent was also charged and convicted on his plea of guilty of an offence of using a prohibited drug in relation to this incident.
On 18 July 2024, the Respondent pleaded guilty to the contravention charge and was fined $100.

Circumstances of the contraventions

After he was sentenced to the term of 5 months' imprisonment on 27 March 2023, the respondent served the full term of the sentence. He was denied parole on 8 May 2023, because the Prisoners Review Board considered that the respondent had ongoing treatment needs in respect of substance abuse and poor consequential thinking, which was said to be evidenced by the respondent's 'current offences and [his] criminal history.[59] The Board also noted that, while the respondent had 'an extensive history of intensive programmatic intervention in custody', it was 'with little engagement'.[60] The Board also cited the respondent's poor response to prior community supervision orders, and considered he was unlikely to comply with parole requirements at that time.[61]
[59] BOM Vol 1, 71.
[60] BOM Vol 1, 71.
[61] BOM Vol 1, 71.
The respondent's sentence expired on 6 August 2023. At the end of that sentence, it appears that he remained in custody on remand in respect of another offence, the charge for which was subsequently dismissed for want of prosecution. It follows that the latter charge has no relevance other than that it accounted for the respondent being in custody for a period of time after the completion of that sentence. He was released on 18 September 2023.
He commenced to use prohibited drugs within two weeks of his release. This is evident from the fact that the charge of using a prohibited drug, for which he was sentenced on 18 July 2024, was based on the result of the urinalysis test conducted on 29 September 2023.[62] Given the variety of drugs in the test results, it is apparent the respondent used drugs on more than one occasions by the time he was arrested on 2 October 2023.
[62] BOM Vol 1, 272, 278. This was charge PE 49785/2023.
It is also appropriate to note at this stage that, when the respondent was released on the supervision order, he had accommodation available, which had been considered to be suitable for the management of his risk within the community. That accommodation was with his mother.
During the time that he was in custody in August 2023, his CCO became aware of telephone calls that had been made by the respondent from prison, including a telephone call on 6 August 2023. I will deal later with the significance of the calls, in terms of what they reveal of the respondent's antisocial attitudes. It is sufficient to note at this stage that it appeared the respondent was saying at one stage that he intended to set fire to vehicles possessed by a person against whom he had a grievance, because a vehicle in which he had an interest had been sold to that person. However, he also indicated that he would be deterred from doing so in his current circumstances, which may properly be understood to be a reference to the fact that, if he was released into the community, he would be subject to the supervision order.
In any event, Ms Sullivan and those responsible for the management of the respondent at COMU determined that it was not appropriate that he return to his mother's accommodation, because it was in an area that was relatively proximate to the location of the vehicles that the respondent was speaking about in the telephone call.
After it was determined that his mother's address was no longer suitable, the respondent was placed in emergency accommodation, and a GPS exclusion zone was put in place, covering the areas that were of concern. So, the contraventions occurred while the respondent was in the emergency accommodation.

Respondent's performance on the supervision order generally

Before turning to the assessment of the respondent's risk made for the contravention proceedings, it is appropriate to consider his performance while subject to the supervision order more generally. This was dealt with in Ms Lilly's report of 21 September 2024[63] and in her evidence at the hearing. Ms Lilly has managed the respondent since 22 September 2023, other than during periods of leave, when a COMU Team Leader was assigned to deal with him. It is evident that Ms Lilly has relied on records of the Department of Justice to relate matters that occurred when she was not managing the respondent.
[63] BOM Vol 2, pp 610 - 623.
The respondent was subject to weekly sessions with his CCO whilst on his HRSO supervision order from the commencement of that order on 22 November 2022. Ms Lilly has described the respondent's presentation during those sessions as argumentative, aggressive, avoidant and superficial.[64] The respondent expressed aversion to the supervision order at most sessions. He refused to discuss certain topics and presented with his own agenda, limiting discussions to areas in which he believes he should be assisted or supported. He was also difficult to contact by telephone.
[64] BOM Vol 2, p 611.
Ms Lilly reported that when the respondent was released into the community on 18 September 2023, after serving the 5-month sentence and being on remand for a period, he presented as aggressive, hostile and abusive to his SCCO, which resulted in a new CCO being assigned.[65] Ms Lilly said that the respondent was resistant to complying with his supervision order, and engaged in problematic behaviour such as entering exclusion zones, failing to return to his accommodation and using illicit substances. He was then transferred to Ms Lilly for supervision, but he continued to be aggressive and argumentative.
[65] BOM Vol 2, p 611.

I pause to note that these were characteristics replicated by the respondent during these proceedings. On occasions when he appeared by video link it was necessary to mute his microphone, as he was interjecting inappropriately, speaking over me and adopting an aggressive and argumentative tone. While a court will make allowance for the stress that such proceedings may cause a respondent, particularly where the respondent considers that the process is not just, the respondent's conduct in this case simply confirmed the assessments made by the CCOs who have supervised him, and I have no difficulty accepting the evidence of Ms Lilly as being cogent in that regard.
Ms Lilly noted that the respondent engaged in 19 counselling sessions with the Departmental Psychologist, Mr Summerton, between 29 June 2022 and 18 January 2023, at which time counselling was cancelled as a result of the respondent being returned to custody.[66] I will deal later with Mr Summerton's report.
[66] BOM Vol 2, p 612.
Following his release on 18 September 2023, he was offered the opportunity to be referred again for counselling by a Departmental psychologist. That occurred at a supervision session on 19 September 2023. The respondent declined such support at that stage, saying he did not need to talk about his problems. He was again offered the opportunity on 29 September 2023, after he had admitted using heroin. An appointment was scheduled with Mr Summerton for 4 October 2023, but the respondent was arrested on 2 October 2023 and has been in custody since then.[67]
[67] BOM Vol 2, p 612.
On two occasions after 18 September 2023, the respondent was also offered a referral for substance abuse counselling, but he declined both times.[68] In respect of one of the services, Next Step Drug and Alcohol Services, the respondent said that while that service was prescribing him methadone, he did not believe he needed additional support from the service.[69] In declining the offer for referral to the other service, Wungening Aboriginal Corporation, the respondent is reported to have said, 'You can continue arresting me for using, but I will not offend.'[70] I note that this reflects an attitude expressed by the respondent from time to time during these proceedings, when he said that he was arrested and kept in custody for using drugs, not for committing any serious offence or being at risk of committing such an offence.
[68] BOM Vol 2, p612.
[69] BOM Vol 2, p612.
[70] BOM Vol 2, p 612.
Ms Lilly noted that, during the period when the respondent was subject to the interim supervision order, he was charged with 13 contravention offences relating to illicit substance use, using a deceptive device and abusive behaviour towards phlebotomists during the collection of urinalysis samples.[71]
[71] BOM Vol 2, p 613
During the period that the respondent was in the community subject to the supervision order, he underwent urinalysis testing 17 times. Of the 17 samples taken, 11 samples tested negative for illicit drugs, whilst the six remaining samples were either positive for illicit drugs or void samples due to low creatinine levels.[72]
[72] BOM Vol 2, p 613.

Family and community supports

In terms of family and other community supports, Ms Lilly noted that the respondent remains in a relationship with his long-term partner Ms Edgill, with whom he has a 12-year-old daughter. However, it has been a fraught relationship over the years.
In 2016, the respondent was convicted of an aggravated assault occasioning bodily harm committed against Ms Edgill, which was said to have occurred in front of his daughter who was then four years old. He was sentenced to imprisonment for 7 months for that offence.
In February 2023, while the respondent was in the community, subject to the supervision order, Ms Edgill contacted COMU, saying she was in fear for her safety, as the respondent and disclosed that he had been using illicit substances.[73] She subsequently described an incident to police that resulted in the respondent being charged with an offence of aggravated common assault. That was the offence for which he remained on remand for a period after he completed the sentence of 5 months' imprisonment imposed on 7 March 2023. The charge was dismissed on 18 September 2023 for want of prosecution due to Ms Edgill's absence from court.
[73] BOM Vol 2, p 614.
While no adverse conclusion can be drawn against the respondent from Ms Edgill's complaint to the police, the fact of the complaint was symptomatic of a dysfunctional relationship. After the respondent was charged with the offence, Ms Edgill moved into her mother's house as a safety precaution, and COMU placed exclusion zones over Ms Edgill and her mother's address, which prevented the respondent from approaching her or the address. When the respondent was released from custody on 18 September 2023, he was placed in emergency motel accommodation funded by the Department of Justice. However, due to the respondent's abusive and threatening behaviour, the motel refused to extend the respondent's booking. The respondent was returned to custody before alternative accommodation could be sought.[74]
[74] BOM Vol 2, p 614.
Ms Lilly reported that the respondent has also displayed coercive and controlling behaviour towards his mother at times. During telephone calls from prison, the respondent has told his mother that he needed a medical diagnosis in respect of his mother's condition that would support his application to be released from prison, suggesting that he might otherwise have to attend her funeral from gaol.[75]
[75] BOM Vol 2, p 619.
Despite these difficulties in his relationships with Ms Edgill and his mother, Mr Summerton reported in May 2023 that the respondent has 'consistently portrayed his partner, daughter, and his mother as being the centre of his world, and this included a heightened protectiveness toward them'.[76] Mr Summerton said that the respondent identified substantial guilt at his sustained absence from his mother's life, indicating that he found her age-related health issues to be highly confronting.[77]
[76] BOM Vol 2, p 566.
[77] BOM Vol 2, p 566.
Ms Lilly noted that the respondent has limited community supports beyond his immediate family. In his report, Mr Summerton said the respondent described 'moderately positive connections with his siblings and extended family', although he also described circumstances in which the family dynamics could become antagonistic.[78]
[78] BOM Vol 2, p 566.

The respondent's conduct in prison

Prison incidents

Ms Lilly reported that, since the respondent had been in Casuarina Prison, five prison incidents had been recorded in relation to him, from November 2023 to May 2024, involving abuse and aggression towards staff and refusing to obey orders, and an incident of returning a positive urinalysis result for prescription drugs that were not lawfully issued to him.[79]

Telephone calls from prison

[79] BOM Vol 2, p 618.

Ms Lilly refers to telephone calls made by the respondent from prison which are relevant in at least two respects. Transcripts of the calls are at pp 436 - 561 of BOM Vol 2. Although the respondent suggested that the content of the transcript of one of the calls put to him in cross-examination was not correct, it was subsequently clarified in further questioning by his counsel that he accepted that the transcript was accurate, and that his earlier answer was the result of remembering another part of the conversation that occurred later. In any event, in submissions that followed, no issue was taken with the accuracy of the transcript. As I noted earlier, the BOM had been tendered without objection.
The first matter of relevance in the calls is that the respondent at times referred to Ms Edgill in derogatory and abusive terms when speaking about her with his daughter. An example is in a call on 6 August 2023, when the respondent was speaking with his daughter while Ms Edgill was out. He referred to Ms Edgill as a 'dumb dog', a 'fuckin' idiot', a 'fuckin' useless cunt' and a 'fuckin' piece of shit'.[80] Contrary to a submission made by counsel for the respondent at one point, the context in which the language was used was not jocular. Nor can the language be explained as the 'lingua franca' of prisoners. As the counsel for the applicant properly submitted, the respondent's conduct during that call indicates a concerning attitude towards Ms Edgill and towards what is appropriate behaviour towards his 12-year-old daughter. While I accept that his devotion to her is genuine, his potential influence upon her, including poisoning her relationship with her mother, is troubling. This is relevant in terms of one of his claimed motivations for staying out of prison, namely his desire to be a part of his daughter's life and provide support to her. In my opinion, the respondent needs to reconsider what is appropriate nurturing support, and it is something he should address in counselling.
[80] BOM Vol 1, pp 477 - 478.
The second matter of relevance from the calls is the discussion in relation to setting cars on fire. This was in a conversation with his sister on 6 August 2023.[81] It appears from the context that Ms Edgill (although she is not referred to by name) had sold a vehicle to a third party, and the respondent was upset about that. During the conversation, the respondent's sister refered to the vehicle as the respondent's vehicle. When his sister said that she had driven past the house where the vehicle was, the respondent told her she should have pulled up and told the person, who appears to have been related, that he should not give 'her' (a reference I understand to be to Ms Edgill) too much money, because the respondent would be coming for the vehicle when he gets out. The respondent then referred to another vehicle and said that he would set them all on fire, and they would have no cars.[82] He then told his sister that 'if it wasn't for certain situations, [he] wouldn't even hesitate on that'.[83] In context, the respondent was referring to the supervision order. That was made clear soon after when he said:[84]
Cause if it wasn't for one thing that's just keeping me on, on, on, on, two things in one way, it's keeping me on the edge with this order scenario. And if it wasn't for dat there I tell ya now. That little black one, the BMW and the green one would go up in smoke.
[81] BOM Vol 1, pp 480 - 488.
[82] BOM Vol 1, p 482.
[83] BOM Vol 1, p 482.
[84] BOM Vol 1, p 483.
In his evidence, the respondent suggested, in essence, that this was bluster, or letting off steam, and that he had no intention of doing what he described. While I accept that the respondent would have been deterred from carrying out what he was describing because of the supervision order, I do not consider that he was credible in suggesting it was just bluster. In making that assessment, I have had regard both to the content of the respondent's answers and his demeanour.
I am satisfied from the context that what the respondent said was indicative of persistent criminal attitudes about the way in which to resolve conflict, including disputes about property. His approach is not one of reasonable negotiation. In my opinion, his threats that he would commit arson, if not for his circumstances, also speak to the respondent's aggression and volatility more generally.

The respondent's attitude towards the supervision order and rehabilitation since he has been in custody

Ms Lilly noted that the respondent's inability to accept his status as a high risk serious offender and the limitations that places on him has been an impediment to meaningful engagement whilst he has been subject to the supervision order. She said that the respondent's conduct during her most recent contact with him, on 9 August 2024, demonstrated this to be an enduring behaviour and will make him challenging to manage in the community.[85]
[85] BOM Vol 2, p 622.
However, there have been some indications along the way that suggest a degree of insight on the respondent's part, and a willingness to engage in programs to address the criminogenic factors relevant to his risk of committing a serious offence. Ms Lilly noted that during a prison visit in May 2024, the respondent acknowledged the concerns raised by COMU in relation to his contravening behaviours, and he expressed his willingness to comply with the conditions of the supervision order. He disclosed the need to be independent, and he reflected on his dependence on both his partner and his mother. He voluntarily suggested he engage with the Solid Steps Program at the Mallee Rehabilitation Unit within Casuarina Prison. After a request was initiated with the unit, they conducted an interview with the respondent on 19 August 2024.
Ms Lilly noted that the respondent 'appeared to provide some information indicating insight regarding his violent behaviour and requested support to engage in [a particular residential program]'.[86] However, after an assessment, the residential program provider informed Ms Lilly that they had not accepted the respondent for a number of reasons (provided on 20 September 2024), including his refusal to reduce his Methadone dose, his minimisation of his violence, the fact that he was said to have blamed his partner for his drug use, presenting himself as the victim, and displaying no empathy.[87]
[86] BOM Vol 2, p 618.
[87] BOM Vol 2, p 619.
Therefore, despite the earlier positive indications of insight, it would appear that the respondent has not demonstrated any enduring change in his attitudes. In fact, as Ms Lilly noted, what appears to be enduring is the respondent's inability to accept that he has been found to be a high risk serious offender and the limitations that brings. When Ms Lilly telephoned the respondent on 9 August 2024 to discuss the positive strategies he had put in place for his potential release, he said he was addressing 'your' concerns, not his.[88] He was focussed on getting an address to be able to get out of prison and said he had other things to worry about.[89]
[88] BOM Vol 2, p 619.
[89] BOM Vol 2, p 619.
Ms Lilly recommended three additional conditions for the supervision order, should the respondent be released into the community on his supervision order. She indicated that, if the respondent is placed on a continuing detention order, he would be reviewed for placement in the Mallee Rehabilitation Unit at Casuarina Prison.[90] She explained that the Mallee Program offers a 'trauma informed model of care to treat the root course of addiction and offending behaviour and is based on a culturally safe, modified therapeutic community model.[91]
[90] BOM Vol 2, p 622.
[91] BOM Vol 2, p 620.

Psychological treatment

It is appropriate to deal next with the respondent's psychological treatment since he was made subject to the supervision order in 2022. Ms Place gave evidence about that, having prepared the Treatment Progress Report. However, as I have already noted, there is in evidence also a report directly from Mr Summerton. The respondent commenced psychological counselling with Mr Summerton on 29 June 2022 when he was on the interim supervision order. He participated in 19 counselling sessions, most of which were before he was found to be a high risk serious offender. He participated in four further sessions after he was subject to the supervision order made by Forrester J. Counselling ceased when the respondent was arrested.
Before turning to Ms Place's summary of Mr Summerton's report, I note the following matters from that report. While the respondent's engagement in treatment was problematic, especially in the early stages, as will appear below, Mr Summerton reported that:[92]
… on the whole apart from some sporadic instances of belligerence, Mr Brown appeared relatively motivated to participate in counselling. Despite issues of confidentiality being explained to him at the outset, he expressed some disgruntlement with respect to the expert witnesses having consulted with me for his final hearing assessments. He pulled back to some degree for a couple of sessions but generally participated and used the sessions as well as might be expected for someone of his psychological makeup …
[92] BOM Vol 2, p 565.
Mr Summerton also noted that the respondent's preparedness for domestic and general community life was clearly affected by his long-term incarceration. Mr Summerton said the respondent impressed as having the beginnings of insight into this factor and he frequently commented that expectations of him were unrealistic given his lack of lived experience in the community. This included an assumption that he ought to be able to manage his drug use.[93] Mr Summerton further noted:[94]
It became increasingly apparent that he had difficulty talking through issues with various parties including his partner and child. He typically appears quite confident, dominating, and forthright in his expression and he has strong views about how things should be or how others should behave, but with very limited insight into the experiences of others. Such issues were addressed delicately, and he was typically open to suggestion.
[93] BOM Vol 2, p 566.
[94] BOM Vol 2, p 566.
That example and others referred to by Mr Summerton about discussions concerning the respondent's difficulties with social situations and relationships reveals the vacuousness of the respondent's evidence in these proceedings that, in essence, all he spoke about with Mr Summerton was the gardening. It may have something to say about the respondent's capacity to assimilate information in a therapeutic counselling setting, and it tends to suggest that a more intensive form of therapeutic program, especially in relation to substance use, is necessary at this stage of the respondent's rehabilitation.
Mr Summerton further noted:[95]
Ironically in the final session ahead of Mr Brown's arrest he observed that he had been preoccupied by bitterness and resentment over much of his adult life at perceived mistreatment by the judicial system that he believed had severely impacted his life - he suggested that he was 'beginning to wise up and needed to let these things go' in order to make something of his current life. He consistently asserted that violence was a thing of the past although it is apparent that his most recent arrest had involved a degree of aggression towards his partner. Further, there is clearly a quite controlling aspect to his ways of interacting with others although at this stage he has developed limited appreciation of this dynamic.
[95] BOM Vol 2, p 568.
Mr Summerton summarised the respondent's engagement in counselling as follows:[96]
Overall, Mr Brown engaged in counselling beyond what might have been anticipated but it is a process that is quite foreign or unfamiliar to him. The impression is that he has previously participated in programmatic intervention strategically, specifically to achieve release. And he implied that he had essentially been going through the motions. He was disparaging about such intervention in the current instance and attempts to revisit skills that he might have developed were met with resistance and there was limited evidence of meaningful retention of what he had addressed. As such skills such as mindfulness, problem solving, and effective communication were approached as if for the first time. While he appeared to make some tentative progress, this was off a very low base related to sustained imprisonment and drug use over almost the entirety of his adult years. Problems across various domains remain present - very limited self-efficacy and commensurate limitations in self-esteem remain hurdles to Mr Brown increasing his level of social integration in a pro-social direction. His lack of psychological mindedness and absence from the community have obvious implications for his capacity to sustain intimate/domestic relationships in a meaningful reciprocating way. Managing his drug [addiction] remains an ongoing problem for him.
[96] BOM Vol 2, pp 568 - 569.

The respondent said that one reason he needs to be in the community is to assist his sister, who is dealing with medical issues associated with their mother. He said he speaks to his family regularly, and that his daughter is his priority. Although Ms Edgill does most of the parenting for their daughter, he still considers himself to be her father figure.[174]
[174] ts 298.
The respondent agreed that his release will be a struggle for him without proper support and further interventions and strategies.[175]
[175] ts 298 - 299.
The respondent's cross-examination was marked by a failure on his part to engage properly with questions. At times he was belligerent. He also tended to deviate from the question asked to speak about matters that he claimed to be important. Whether he was deliberately being evasive, or was simply unable to properly consider the questions and answer them directly was difficult to assess. However, his presentation echoed descriptions of his behaviour to which I have referred above, particularly from Ms Lilly and Ms Place. In some respects, I did not find his evidence to be cogent or acceptable.
Notwithstanding, the respondent's difficult approach, the following evidence emerged.
The respondent acknowledged that he was using methylamphetamine and heroin when he committed the various robbery offences on his criminal record.
He also acknowledged that when he was released on his supervision order he again used methylamphetamine and heroin. He agreed that it has been difficult for him to abstain from drugs in the past.
The respondent denied that he has used a device before to subvert urinalysis testing, and he said he does not remember if when police arrested him he was in possession of such a device.[176] I reject the respondent's denial, in light of the evidence of Ms Place that he admitted doing so. I found Ms Place's evidence to be credible and reliable, and I prefer her evidence over that of the respondent. Further, Ms Place was not challenged in cross-examination about the admission made to her by the respondent.
[176] ts 302.
The respondent said he has not committed to doing the Reset program because he needs to be released to do so.[177]
[177] ts 302.
He said he felt that psychological counselling with Mr Summerton was a waste of time, as towards the end they did not have much to talk about. In fact, he claimed they would just talk about the gardening.[178]
[178] ts 302.
He denied that he was offered any drug counselling while he was in the community. He said he commenced on the methadone program whilst in prison, and he continued on the program when he was in the community. He admitted that, the methadone had not prevented him from relapsing into illicit drug use.
The respondent said that Ms Edgill is also a drug user, and that at some stage she exchanged her car for drugs.[179] This appears to be the explanation for the telephone call in respect of the cars.
[179] ts 307.
The respondent agreed that he and his partner do not have positive communication skills. He agreed that he has called his partner a 'fucking cunt' and 'fucking maggot' when speaking to his daughter over the phone from prison.[180]
[180] ts 308 - 309.
When it was put to the respondent that he uses violence to solve problems, he said that he was brought up witnessing his mother being assaulted every week.[181] However, in relation to the call where he was speaking about committing arson, he said that saying he would do something is different from actually doing it.[182]
[181] ts 312.
[182] ts 312.
In re-examination, the respondent said he did not fully appreciate that he would be returned to custody if he breached the supervision order. He agreed that the last 14 months in custody has been sobering for him.[183]
[183] ts 326.

Accommodation

In respect of accommodation to which the respondent could be released, it is sufficient to note that, on the basis of the documents tendered in the proceedings, there is no accommodation available to the respondent at this stage other than with his mother. While he has reached his turn in respect of public housing, he cannot be allocated a house unless he is in the community. This creates a Catch-22, because it would not be appropriate to release the respondent on the supervision order unless he has suitable accommodation already available to him, as stable and suitably located accommodation is a necessary element of ensuring the conditions of the supervision order can be administered effectively, and in mitigating the respondent's risk.
As for the respondent's mother's home, I am not satisfied that would provide the stability required. On the evidence presented at the hearing, I am satisfied that persons who are at risk of using drugs and committing other offences are likely to be co-occupants or visitors to the house. Given the respondent's demonstrated vulnerability to relapsing into drug use soon after release from custody, I accept the assessment that has been made of the respondent's mother's house that it is not suitable accommodation, at least at this stage.
However, the unavailability of suitable accommodation is not the only relevant factor affecting my decision in this case.

The applicant's submissions

The applicant's submission is that the respondent's contraventions demonstrate his inability to avoid relapsing into drugs, even when he has had counselling available to him to assist him to deal with that issue. Drug use has been demonstrated in the respondent's case to be linked to his violent offending, in terms of both the effect of intoxication and the fact that he has been motivated to commit robberies to fund his drug addiction. The use of drugs was previously identified as a factor that would significantly elevate the respondent's risk of committing a violent offence. It is evident he has not yet adequately addressed his drug addiction, and the weight of the expert evidence favours the conclusion that he needs to engage in programs addressing his drug use and criminogenic factors if his risk is to be adequately mitigated in the community while subject to a supervision order, so as to provide adequate protection of the community against the unacceptable risk that the respondent will commit a serious violent offence.
The applicant's submissions delved into the details of the reasons why the court can be satisfied that, at this stage, the appropriate order is a continuing detention order. It is not necessary to descend into those details, but a significant matter, in the applicant's submission is that the court could not be satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of a supervision order.

The respondent's submissions

Counsel for the respondent submitted that the respondent's frustrations and difficulties are demonstrative of a degree of insight, and that he has found some perspective. That perspective in particular is that he risks being detained indefinitely because of his status as a high risk serious offender if he returns to drug use. It was submitted that the court should accept the respondent's evidence that he did not fully appreciate the consequences previously, which is also evident in things he has said to the authors of the reports.
It was submitted that Ms Hasson's evidence seemed to suggest that the respondent has retained much of what he learned in past programs, but he has not been able to implement what he has learned, in part because he has not had very much opportunity in the community since being released from the sentence for the index offences. I would note that those circumstances are the respondent's doing, in that he has repeatedly returned to drug use, and such conduct could not be tolerated within the community, given the significant risk factor it poses for violent offending in his case. Further, Ms Hasson's evidence was somewhat more qualified, and the preponderance of evidence I have described above indicates that the respondent has not retained much of what he was taught in programs in the past.
Nevertheless, I have regard to the fact that there has been limited opportunity for the respondent to change whilst in the community.
The respondent also referred to the distinction drawn by Ms Hasson between lapses and relapses, the argument being that the respondent's use of drugs while he was on the supervision order might be regarded as lapses, or missteps, rather than a relapse. With respect, I cannot accept that submission. It is not only that the respondent's persistent resort to drugs shows an entrenched addiction re-emerging, but his expressed attitudes to his use of drugs, regarding them as recreational and not having any link to his violent offending, has indicated a lack of motivation to avoid using illicit drugs.
The respondent submitted that the respondent requires support to avoid using drugs, and that can be provided in the community, including the possibility of residential rehabilitation, which would need to be organised after he is released.
The respondent also submitted that Ms Hasson's evidence supports the conclusion that not every use of drugs by the respondent would put him at risk of committing a violent offence. With respect, that does not preclude a finding that the respondent's use of drugs significantly increases his risk of committing a violent offence. In any event, my interpretation of the passage to which counsel referred differs from counsel's interpretation. In my view, Ms Hasson was saying that not every occasion on which the respondent has engaged in violent offending has necessarily involved him being affected by drugs. The fact that he may have committed offences when not intoxicated does not diminish the force of the argument that, if he is unable to avoid relapsing into drug use, he will be at increased risk of committing a violent offence.
It was also submitted on the respondent's behalf, that his difficulty in avoiding relapsing into drug use must considered in the context of his background and the entrenched exposure to drugs from an early age.
It was submitted also that the respondent has demonstrated he is motivated more than ever now to avoid drug use and to take advantage of the interventions that may be made available to him.
In broad terms, the respondent's submission was that the strict conditions of the supervision order would provide adequate protection of the community, as they have done so far, in that, if the respondent were to relapse, it would be detected at an early stage. The respondent notes that he had generally been compliant with directions to submit to urinalysis testing.

Conclusions

The respondent has contravened the supervision order

I am satisfied on the balance of probabilities, on the basis of cogent and acceptable evidence set out above in respect of the contraventions, that the respondent has contravened the conditions of the supervision order concerning drug use and complying with the reasonable directions of his CCO, the latter of which is a standard condition. That is proved by his convictions for the offences under s 80(1) of the Act. The fact of contravention was not in issue in the proceedings.
I turn to determining the appropriate order to make.

Whether to rescind the supervision order and make a continuing detention order

To a large extent, I have expressed conclusions about various matters relevant to the determination of the appropriate order in the course of these reasons above.
The respondent's return to drug use was significant because, as Forrester J found, and as the experts had indicated in their opinions, the respondent's use of drugs has been inextricably linked to the respondent's violent offending in the past. Although Ms Hasson indicated that some of his past offending might have occurred when he was not affected by drugs, I am satisfied on all the evidence, including Ms Hasson's evidence, that the use of illicit drugs is the most significant risk factor for violent offending in the respondent's case.
Although the respondent's risk of committing a serious violent offence was considered not to be imminent at the time of the hearing before Forrester J, that was on the basis that he had not returned positive urinalysis results for a period of time, and there was some indication that he was prepared to engage in rehabilitation in respect of his drug use. The evidence presented in these proceedings establishes that the reasonable expectation at that time that the respondent would abstain from drug use has not been met. His apparent capacity for change turned out to be illusory.
The respondent's superficial engagement in counselling, based on his account of what he gained from it, means that he did not use the resources available to him to strengthen his resolve to abstain from drug use. It is also clear from the evidence that he has sought out and engaged with antisocial peers who also put him at risk of lapsing into behaviours that have led to violent offending.
I am also satisfied that the respondent's conduct in the telephone call in which he spoke about arson shows he continues to harbour criminal attitudes. While I accept the statements were qualified, as discussed above, they nevertheless cause disquiet that the respondent continues to regard violent behaviour as a means of resolving conflict.
The assessments of Ms Hasson and Ms Place satisfy me that, in light of the respondents conduct while in the community subject to the supervision order, the respondent is in need of criminogenic programs to deal with his substance use and his antisocial attitudes. There is a need to reset the baseline from which he can be released into the community in the knowledge that he will be internally motivated to change and will have the personal resources to engage meaningfully with counselling and with supervision. I am satisfied that this needs to occur in custody before the respondent can be considered for release on a supervision order again, and that he needs to have demonstrated a capacity for change.
I am further satisfied that, if the respondent is starting to shed the antagonistic, belligerent and paranoid attitudes that have created obstacles to meaningful and effective engagement in supervision in the past, it is at an early stage. It needs to be demonstrated over an extended period and through behaviour, not just words.
While I have no doubt that the respondent's relationship with his daughter, and his desire to contribute to the care of his mother are genuine, those factors have always been there, and they did not deter him from relapsing into drug use and putting himself at risk of relapsing into violent offending on the several opportunities he has been given since early 2022.
The evidence leaves me in considerable doubt that the respondent would comply with the conditions of the supervision order prohibiting him from using drugs, or that the conditions of the order as a whole would provide adequate protection of the community against the unacceptable risk that continues to exist that he would commit a serious offence. While the constraints are significant, the respondent has previously admitted that he has used deceptive measures to defeat the efficacy of urinalysis testing. GPS monitoring will provide information about the respondent's whereabouts, but not as to who he may be meeting or what he may be doing. His concerns about information being shared between his counsellor and his CCO and the police, and statements made by him indicating a wariness about being completely frank about his behaviour, raise the real possibility that he may not engage with treatment and supervision in a manner that will allow for effective management of his risk. There is a real possibility that red flags that the respondent is descending into behaviour that may lead to violent offending will be missed.
Obviously, the potential harm to members of the community in the event that the respondent were to commit a serious violent offence in the future, of the types he has committed previously, would be significant.

Whether the respondent would substantially comply with the standard conditions of the supervision order

In any event, I am not satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions of the supervision order.
I have had regard to the respondent's evidence, in which he said that he now realises he needs to take a different approach to the supervision order and to his compliance with directions from his CCO, and that he is strongly motivated to avoid being in custody, such that the risk of returning to custody will provide a significant deterrent from relapsing into illicit drug use. However, I do not consider I can place any significant reliance on the respondent's assertions in respect of those matters.
In The State of Western Australia v Mills [No 4] [2024] WASC 348 (Mills), Musikanth J noted that:[184]
… it would seem contrary to the statutory scheme for a combination of words and hope to be permitted to prevail over experience when it comes to determining the prospect of substantial compliance with the standard conditions of a supervision order.
At least that would appear so where, as here, the breaches have been recent, numerous and frequent, where no gains in treatment including for long-standing substance abuse have yet been demonstrated, and where any relapse into illicit substance abuse will substantially increase the imminence of the risk of violent offending.
[184] Mills [No 4] [210] - [211].
I respectfully agree with his Honour's observations regarding the circumstances of that case apply equally in this case.
I am not satisfied that the respondent's evidence concerning his motivation and changed attitude can prevail over the evidence of his actions and expressed attitudes while he was subject to the supervision order, his apparent lack of treatment gains in respect of his drug use, his previously expressed views that his drug use is recreational, without properly appreciating the risk factor it poses for future violent offending, and his misplaced confidence in his ability to avoid relapsing into illicit drug use without first completing a treatment program.
The respondent has a particularly poor history of compliance. I agree with Ms Hasson's opinion that, due to the respondent's history of failures with supervision and his personality and behaviour, there is a reasonable likelihood of further compliance difficulties with supervision, especially so if he disagrees with or does not see the relevance of certain restrictions, or if he is getting pressure from peers.

Summary

On the evidence adduced in the application, I am satisfied that the respondent has contravened the supervision order made by Forrester J on 22 November 2022. I am also satisfied that a supervision order would not provide adequate protection of the community at this time against the unacceptable risk that the respondent would commit a serious violent offence, in light of the respondent's contraventions, his demonstrated inability to abstain from illicit drug use in the community, the significant risk that a relapse into illicit drug use presents for the respondent to engage in serious violent offending in the future, and his outstanding treatment needs in relation to those matters. In particular, I am not satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of a supervision order.
It will be necessary for the authorities to make available to the respondent criminogenic programs of the kind discussed above, and arrange for referral of the respondent to the Solid Steps program as soon as possible, as well as individual counselling, so as to provide the respondent with the best opportunity to engage in rehabilitation with a view to demonstrating the changes I have identified are necessary.

Orders

I rescind the supervision order made by the Hon Justice Forrester on 21 November 2022.

I make an order that the respondent be detained in custody for an indefinite term for control, care, or treatment.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LD
Associate to the Hon Justice Fiannaca
16 DECEMBER 2024