The State of Western Australia v CA [No 3]

[2023] WASC 144

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- CA [No 3] [2023] WASC 144

CORAM:   FIANNACA J

HEARD:   3 MARCH 2023

DELIVERED          :   28 MARCH 2023

PUBLISHED           :   8 MAY 2023

FILE NO/S:   SO 5 of 2020

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

CA

Respondent

Catchwords:

High risk serious offender - Contravention proceedings - Application under s 53(2) and s 55 of the High Risk Serious Offenders Act 2020 (WA) for amended supervision order - Discretion to suspend electronic monitoring pursuant to s 31(4) of the High Risk Serious Offenders Act 2020 (WA)

Legislation:

Community Protection (Offender Reporting) Act 2004 (WA)
Dangerous Sexual Offenders Act2006 (WA)

High Risk Serious Offenders Act 2020 (WA)

Result:

Supervision order amended

Representation:

Counsel:

Applicant	:	Mr B D Meertens
Respondent	:	Mr T Hager

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Geoffrey Miller Chambers

Cases referred to in decision:

Director of Public Prosecutions (WA) v Hart [2019] WASC 4

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

The State of Western Australia v ACW [No 2] [2020] WASC 480 [6]; and The State of Western Australia v Pindan [No 5] [2021] WASC 72

The State of Western Australia v ACW [No 4] [2023] WASC 14

The State of Western Australia v CA [2020] WASC 164

The State of western Australia v CA [No 2] [2021] WASC 491

The State of Western Australia v MBW [No 7] [2020] WASC 404

The State of Western Australia v Narrier [No 6] [2020] WASC 349

The State of Western Australia v Quartermaine [No 3] [2023] WASC 50

The State of Western Australia v Quartermaine [No 4] [2023] WASC 66

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

Table of Contents

Introduction

The application and its history

Statutory framework and legal principles

Background

Introduction

Offending history leading to restriction order

Findings in CA [No 2] in respect of propensity and pattern of offending

The interim supervision order made 18 May 2020

Contraventions of interim supervision order

Prior to restriction order hearing

After restriction order hearing

Findings in the restriction order proceedings

Evidence in the contravention application

The applicant contravened conditions of the supervision order

Making factual findings in respect of the contraventions

Circumstances of the contraventions

Respondent's acknowledgement of his obligations upon release

The conditions that were contravened

Facts of the contraventions

Circumstances referred to in the Magistrates Court proceedings

Context in which the contraventions occurred

Respondent's account of contraventions

Assessment of the respondent's explanations

Respondent's reflections on the consequences of the contraventions

Evidence of Dr Yewers

Respondent's view of his supervision order

Treatment since being subject to current supervision order

Assessment of risk

Results from application of risk-assessment instruments

Conclusions as to risk

If the respondent is released on a supervision order

Dr Yewers' opinion in respect of duration and overview of conditions

Response to supervision

Dr Yewers' opinions as to supervision strategies and the appropriateness of various conditions

If continuing detention order is made

Mr Carmichael's evidence

Submissions

Conclusions

The respondent contravened conditions of the supervision order

The respondent's risk factors and level of risk

The appropriate order under s 55 of the HRSO Act

Amendments to the conditions of the supervision order

Duration of the amended supervision order

Recommendation for further management of the respondent

Comments to respondent

Orders

ANNEXURE 'A'

FIANNACA J:

Introduction

1. This application was heard on 3 March 2023.  For reasons that appear below, it was necessary to give a decision in the application before 31 March 2023.  On 28 March 2023, I gave my decision and made the orders that appear at the end of these reasons.  I gave oral reasons that reflected the key aspects of the case and my decision, with detailed written reasons to follow.  These are my reasons for the orders made that day.  They incorporate the contents of my oral reasons.

The application and its history

1. This is an application by the State of Western Australia (the applicant) under s 53 the High Risk Serious Offenders Act 2020 (WA) (the HRSO Act) for an order under s 55 of that Act in respect of the respondent ('the contravention application'). Such an application may be brought in respect of a person who has been found to be a high risk serious offender under the HRSO Act ('the offender'), is subject to a supervision order made under that Act, and has contravened a condition, or conditions, of the supervision order. The orders that the court may make under s 55 are to: rescind the supervision order and make a continuing detention order (CDO) in relation to the offender; make an order amending the conditions of the supervision order or extending the duration of the supervision order; or affirm the supervision order without amendment or extension.[1]

   [1] The HRSO Act, s 55(1)(a) - (c).

2. On 15 October 2021, the respondent was found by the court to be a high risk serious offender and was made subject to a supervision order under s 48(1) of the HRSO Act for a period of four years from that date ('the supervision order').[2]  The supervision order contained 53 conditions.  The contravention application has been brought on the basis that the respondent has contravened three conditions of the supervision order. 

   [2] The State of western Australia v CA [No 2] [2021] WASC 491 (CA [No 2]).

3. On 13 March 2022, the respondent was charged with three offences of contravening a requirement of the supervision order without reasonable excuse, contrary to s 80 of the HRSO Act ('the contravention charges'). The alleged contraventions were that, on that day, the respondent:

   (a)breached the condition that he be subject to electronic monitoring under s 31 of the HRSO Act, by removing his electronic monitoring device;

   (b)breached the condition that he was not to leave a specified town (where he was residing) without first seeking and obtaining approval in advance from his Community Corrections Officer (CCO), by travelling outside the town by car, without prior approval, after he had removed the monitoring device;

   (c)breached the condition prohibiting him from possessing or using any prohibited drugs, by using amphetamines.

4. The respondent was also charged with an offence under s 33(3) of the HRSO Act in respect of the removal of the electronic monitoring device without reasonable excuse and in such a way as to prevent or impede monitoring of his location. He was also charged with an offence under s 444 of the Criminal Code (WA) of wilfully and unlawfully damaging that electronic monitoring device, which was the property of the Department of Justice (the Department).

5. In essence, on 13 March 2022, the respondent used amphetamines, cut the strap of the electronic monitoring device to remove it from his ankle, and drove out of the town without approval, with the intention of going to the home of an associate in another town.  While driving, he crashed his vehicle, about 23 kilometres out of the town where he was required to remain.  It appears he fell asleep at the wheel.  He was seriously injured.  He was located at the crash site by police and was taken to hospital for treatment.  He was subsequently charged with the offences I have outlined.

6. The respondent was not granted bail in respect of the charges.  Therefore, upon his release from hospital, on 1 April 2022, he was remanded in custody. 

7. On 9 May 2022, the respondent pleaded guilty in the Magistrates Court to all the charges I have outlined. He was sentenced to imprisonment for a total term of 12 months, backdated to commence on 1 April 2022 to take into account the time he had been in custody on remand in respect of the offences. By s 33(4) of the HRSO Act, 12 months was the mandatory minimum term the magistrate was required to impose for the offence under s 33(3) of that Act. The sentences of imprisonment imposed for the other offences, including a term of 12 months' imprisonment for the first contravention offence described above, were made concurrent with the sentence for the s 33(3) offence. The magistrate made an order that the respondent be eligible for parole.

8. The respondent was eligible for release on parole on 1 October 2022.  By letter dated 8 September 2022, the Prisoners Review Board informed the respondent that it had decided to deny him release on parole.  The respondent did not make any application for parole after that.  He will have served the full term of his sentence, and be entitled to be released, on 31 March 2023. 

9. The applicant commenced the proceedings by application under s 53 of the HRSO Act ('the contravention proceedings') on 6 September 2022.

10. Section 53 states:

    53.State may seek orders

    (1)This section applies to —

    (a)an offender who is brought before the Supreme Court under a warrant issued under section 51(3) or 56(7)(d); and

    (b)an offender who is charged with an offence under section 80(1).

    (2)In relation to the offender, the State may apply for —

    (a)an order under section 55; and

    (b)an order for the offender to be detained in custody while proceedings on the application for an order under section 55 are pending.

    (3)The application must state what order is sought under section 55.

11. The applicant initially purported to rely on s 53(1)(b) as the basis on which it was authorised to bring the application. As will appear below, the correctness of that approach, and, therefore, the court's jurisdiction to hear the application, were brought into question subsequently, after the decision in The State of Western Australia v ACW.[3]

    [3] The State of Western Australia v ACW [No 4] [2023] WASC 14 (ACW).

12. In the meantime, the matter came before the court on 13 October 2022, for directions in respect of the proceedings, with the intention that the application be listed for hearing. No jurisdictional issue was raised at that stage. A relevant question was whether a detention order should be made under s 53(2)(b) of the HRSO Act. That would only be necessary if the respondent was to be released on parole before the application was heard. Counsel appearing for the respondent at that time indicated that it was unlikely the respondent would reapply for parole.[4] Therefore, it was not necessary to make any order for the respondent's detention under the HRSO Act, assuming such an order would otherwise be appropriate. The only orders made were to adjourn the hearing of the contravention proceedings to a date to be fixed, and for the filing of a minute of consent orders for the purposes of programming the matter to a hearing.

    [4] ts 284.

13. On 21 October 2022, the court made orders administratively in accordance with a minute of proposed programming orders, to which the parties consented.  The first order was that the contravention proceedings were to be listed for final hearing on 10 February 2023.

14. On 1 February 2023, in ACW, Allanson J held, relevantly, that, where a person has contravened conditions of a supervision order under the HRSO Act, and has been charged with an offence or offences under s 80(1) of that Act, and has been convicted of, and sentenced for, the offence or offences, then the person is no longer 'an offender charged with an offence under s 80(1)' for the purposes of s 53(1)(b), as a person ceases to be 'charged', once they are convicted. Consequently, his Honour dismissed the contravention proceedings in that case, which had been brought on the basis of s 53(1)(b), as the respondent had been convicted of the relevant offences under s 80(1) before the application was made, and was not an offender charged with such an offence at that time. Therefore, the State's application under s 53(2) was not competent, and the court did not have jurisdiction. The decision in ACW has since been followed by McGrath J in The State of Western Australia v Quartermaine [No 3].[5]

    [5] The State of Western Australia v Quartermaine [No 3] [2023] WASC 50.

15. The circumstances of the present case were the same as in ACW in relation to the jurisdictional issue.  In light of the decision in ACW, the applicant initially sought to adjourn the contravention proceedings, pending the outcome of an appeal against the decision in ACW. However, at the hearing on 10 February 2023, after discussion between the bench and counsel, the applicant decided that it would obtain a warrant under s 51(3) of the HRSO Act, so that the respondent could be brought before the court under s 53(1)(a), and would commence a fresh application, thereby avoiding the issue under s 53(1)(b) in respect of the original application.[6] The matter was adjourned, without objection from the respondent, until 3 March 2023 for hearing of the proposed new contravention application. If the original application had been dismissed for want of jurisdiction on 10 February 2023, it would have been open to the applicant to obtain a warrant under s 51(3) and recommence the contravention proceedings on the basis of s 53(1)(a) in any event.[7]

    [6] ts 313 - 314.

    [7] The State of Western Australia v Quartermaine [No 4] [2023] WASC 66 [16].

16. Section 51(1) of the HRSO Act provides:

    51.Warrant because of contravention

    (1)A police officer or community corrections officer who reasonably suspects that an offender who is subject to a supervision order is likely to contravene, is contravening, or has contravened, a condition of the order may apply to a magistrate for —

    (a)the issue of a warrant under subsection (3) …

17. The effect of subsections (3), (4) and (5) of s 51 is that, provided that the application for the warrant is supported by evidence on oath, if the magistrate is satisfied that there are reasonable grounds for the suspicion described in subsection (1), the magistrate must issue a warrant in the approved form that states the suspected or anticipated contravention, and directs police officers to arrest the offender who is subject to the supervision order and bring him before the Supreme Court for consideration of the suspected or anticipated contravention.

18. On 2 March 2023, a warrant issued under s 51(1)(a) for the respondent's arrest on the basis that he had both contravened conditions of the supervision order and was likely to contravene a condition or conditions of the supervision order. The applicant then filed a fresh contravention application, on 3 March 2023, for orders under s 55(1) in the following terms:

    (1)Upon the Court being satisfied that the respondent has contravened a condition of the supervision order made on 15 October 2021, an order that the supervision order be amended in such terms as the Court thinks fit;

    (2)Subject to an order in terms of (1), the amended supervision order take effect from 31 March 2023.

19. It can be seen that the basis on which the applicant now relies is that the respondent has contravened a condition of the supervision order, rather than any anticipated contravention.

20. I heard the contravention application on 3 March 2023, when the respondent was brought before the court pursuant to the warrant.  The proceedings on the original application were discontinued. 

21. It was not in issue at the hearing that the respondent had contravened the conditions of the supervision order referred to above.  The applicant relied on the respondent's convictions in respect of the contravention offences, and on materials setting out the factual circumstances of those offences.  The applicant also relied on expert evidence concerning the respondent's circumstances at the time of the contraventions and since then.  The respondent did not adduce evidence.

22. The issue at the hearing was which order should be made under s 55(1) of the HRSO Act. Although, at the time of filing the discontinued application, the applicant had sought a continuing detention order, with other orders under s 55(1) listed as alternatives, the new application sought an amendment of the supervision order made on 15 October 2021, as indicated above. Both parties submitted that amending the conditions of the supervision order was the appropriate order under s 55(1) in the circumstances of this case. The appropriate amendments were the subject of evidence, submissions, and discussion with the bench. The applicant did not seek an extension of the duration of the supervision order.

23. For the reasons set out below, I have decided that the appropriate order under s 55 is an order amending the supervision order made on 15 October 2021, as submitted by the parties. I am satisfied that, notwithstanding the respondent's contraventions, the community would be adequately protected against the risk that he will commit a serious offence, if, at the conclusion of his sentence, the respondent is released subject to the amended supervision order annexed to these reasons.

Statutory framework and legal principles

1. In considering the legal principles applicable on an application under s 53 of the HRSO Act, I proceed on the basis that the jurisprudence established in respect of the repealed Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) remains relevant in construing and applying the HRSO Act, with appropriate adaptation in cases involving non‑sexual offences, for reasons I outlined in The State of Western Australia v ZSJ.[8]

   [8] The State of Western Australia v ZSJ [2020] WASC 330 (ZSJ) [30] - [34]. See also The State of Western Australia v Narrier [No 6] [2020] WASC 349 [4], [29] ‑ [30]; The State of Western Australia v MBW [No 7] [2020] WASC 404 [29] ‑ [30]; The State of Western Australia v ACW [No 2] [2020] WASC 480 [6]; and The State of Western Australia v Pindan [No 5] [2021] WASC 72 [25].

2. The wording of s 55 of the HRSO Act is almost identical to s 23 of the DSO Act, being the equivalent provision in that Act that dealt with contravention proceedings.

3. I outlined the law relating to contravention proceedings under the DSO Act, referring to relevant authorities, in Director of Public Prosecutions (WA) v Hart.[9] In my opinion, those principles apply to contravention proceedings under the HRSO Act. I adopt what I said in Hart and will not repeat those reasons here. The salient principles can be distilled as follows, as adapted to reflect the language of the HRSO Act.

   [9] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 (Hart) [13] - [21].

4. 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 HRSO Act.[10]  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.[11] 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 HRSO Act, which are set out at [2] above. 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),[12] bearing in mind that, by virtue of s 55(3), the paramount consideration is the need to ensure the adequate protection of the community.

   [10] Being an application by the State for either a CDO or a supervision order on the basis that the respondent is a high risk serious offender.

   [11] HRSO Act, s 7(1).

   [12] Hart [16].

1. The first option under s 55(1) is for the court to rescind the supervision order and make a CDO, which is an order that the offender be detained in custody for an indefinite term for control, care, or treatment.[13] 

   [13] HRSO Act, s 26(1).

2. 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 HRSO Act.[14] 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. I will deal later with s 31, which is concerned with the requirement for electronic monitoring while an offender is subject to a supervision order.

   [14] HRSO Act, s 27(1).

3. 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.

4. When considering which order to make under s 55(1) of the HRSO 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 CDO.[15]

   [15] 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.

5. 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 HRSO Act. By s 29, the court cannot make, affirm or amend a supervision order unless it is 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.[16]  The court must have regard to all evidence adduced in the proceedings when making that determination.[17]  The court may reach satisfaction that the respondent will substantially comply on the basis of the evidence adduced by the applicant. 

   [16] HRSO Act, s 29(2).

   [17] Hart [19].

6. 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.[18]

   [18] Hart [52].

7. 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.[19]

   [19] Hart [50].

8. Finally, in the context of dealing with the statutory framework, it is appropriate to note that one of the standard conditions in s 30 of the HRSO Act is that the offender be subject to electronic monitoring under s 31 of that Act.[20] Section 31(2) provides that the purpose of electronic monitoring of an offender subject to a supervision order is to enable the location of the offender to be monitored. Section 31(3) empowers a CCO to give two specified directions and 'any other reasonable direction' to an offender to facilitate electronic monitoring. Section 31(4) provides:

   (4)A community corrections officer may suspend the electronic monitoring of an offender subject to a supervision order —

   (a)while satisfied that it is not practicable to subject the offender to electronic monitoring; or

   (b)while satisfied that it is not necessary for the offender to be subject to electronic monitoring.

   [20] HRSO Act, s 30(2)(g).

9. I will return to the relevance of that provision in dealing with issues concerning the future management of the respondent under the supervision order.

Background

Introduction

1. Before turning to the circumstances of the contraventions, it is appropriate to provide some background.

2. The respondent's history and the circumstances in which he was found to be a high risk serious offender are set out in detail in The State of Western Australia v CA[21] and CA [No 2].  These reasons are to be read in conjunction with the reasons in those decisions.  What follows is a summary of some key aspects of the respondent's offending history and my findings in CA [No 2].

Offending history leading to restriction order

[21] The State of Western Australia v CA [2020] WASC 164 (CA).

1. The restriction order application that resulted in the finding that the respondent was a high risk serious offender was brought in April 2020, during the last year of a sentence of 10 years' imprisonment which the respondent was serving in respect of offences of which he was convicted after trial in the District Court on 23 November 2012.  The sentence was imposed on 8 March 2013, and was backdated to commence on 19 May 2012.  The offences for which he was serving the sentence had been committed on 3 April 2011 against a woman, Ms L, who was living at the respondent's home, but who did not consider herself to be in a domestic relationship with the respondent, although they had been sexually intimate on two occasions.  The offences comprised one count of unlawfully detaining Ms L, one count of making a threat to unlawfully kill Ms L, four counts of sexually penetrating Ms L without her consent, and one count of sexually penetrating Ms L without her consent in circumstances of aggravation, being that the respondent did an act which was likely to seriously and substantially degrade Ms L.  The offences were committed by the respondent while he was intoxicated with alcohol and in circumstances in which he was jealous of Ms L's relationship with another man, and angry that she had refused his requests for sex. 

2. Previously, in December 2007, the respondent had been convicted after trial in the District Court of offences of aggravated grievous bodily harm and aggravated assault occasioning bodily harm, committed on 29 December 2004 against his then girlfriend, Ms A.  He was sentenced to a total effective term of 2 years' imprisonment for those offences.  As with the later offences against Ms L, the offences against Ms A were committed in circumstances in which the applicant had consumed a large amount of alcohol and was angry because she refused to have sex with him.

3. The respondent had also been convicted in the District Court in July 2009 of two counts of aggravated indecent assault committed on 2 June 2007 on a young woman, Ms C, who had accepted a lift with the respondent and his male friend.  Ms C was intoxicated and vulnerable.  The respondent and his co-offender indecently assaulted her in an isolated car park while she was passed out.  The circumstance of aggravation was that the respondent was in company with his co-offender.

Findings in CA [No 2] in respect of propensity and pattern of offending

1. In CA [No 2], after considering the expert evidence in respect of the respondent's propensity to commit serious offences and his pattern of offending adduced at the hearing of the restriction order application, I expressed the following conclusions:[22]

   Ultimately, in respect of the issues of propensity and pattern of offending, I consider that the evidence of Dr Wojnarowska and Ms Hasson tends to confirm the conclusions I reached, on a preliminary basis, in CA, which I adopt as my findings for present purposes: 

   I am satisfied that the respondent's past offending discloses a propensity to engage in sexual violence of an extreme nature when he is intoxicated and angry because he is jealous and his sexual advances have been rebuffed by a woman who is known to him or with whom he is in a relationship.  He has demonstrated a capacity to impose himself on such a woman in a violent manner, with complete disregard for her feelings and the severe adverse emotional impact his behaviour may have on her.  Even when his violence against his partner was not sexual in nature, it was triggered by her refusal to have sex with him.  A matter of particular concern, and which may properly be regarded as a pattern of offending, has been the respondent's tendency to grab his victims by the throat and strangle them until they have either passed out or nearly passed out. 

   I would add that the respondent's propensity for violence in the context described in that paragraph includes a propensity to commit a non-sexual serious offence such as grievous bodily harm, as occurred in 2004.  It is an identifiable characteristic of the respondent, something in his make up or personality, that he will resort to the use of significant violence, capable of causing serious injury, in the context I have described. 

   In addition, I am of the opinion, as I was in CA, that the aggravated indecent assaults committed in 2007 were also part of a pattern of treating women as sexual objects, without regard to the need for consent, and that those offences also revealed a variation in the respondent's offending, in that they demonstrated a preparedness to take advantage of a woman who was in a vulnerable state.  

   Although I noted in CA, in the context of dealing with a preliminary hearing under the DSO Act, that the 2007 offences were not serious sexual offences, they are serious offences under the HRSO Act and are therefore directly relevant to the question of whether the respondent has a propensity to commit serious offences in the future.

   Finally, I also find, as I did in CA, that it has been a pattern in all of the offending I have outlined that the respondent was heavily intoxicated. 

The interim supervision order made 18 May 2020

[22] CA [No 2] [136] - [140] (citations omitted).

1. I note that, at the time of the hearing of the restriction order application, the respondent had been on an interim supervision order from 18 May 2020, after I had determined at a preliminary hearing (under the DSO Act at that stage) that there were reasonable grounds for believing that the court might find that the respondent was a serious danger to the community (the test applicable under the DSO Act, corresponding to the designation 'high risk serious offender' under the HRSO Act, although not identical to that designation).[23]  My reasons for making the interim supervision order at that time were set out at [183] - [192] of CA.  In light of the respondent's contraventions since that time, it is appropriate to outline the key points of my reasons, as summarised in CA [No 2]:[24]

   First, having found that there were reasonable grounds for believing that the court might find that the respondent was a serious danger to the community, it was appropriate to place constraints on the respondent's liberty, to ensure adequate protection of the community against that putative risk.  The options were an interim detention order under s 14(2)(b) of the DSO Act or an ISO. 

   I accepted that, in light of the respondent's history, it was necessary for the court to take a cautious approach in determining whether he was likely to substantially comply with the standard conditions of an ISO.  That history included the respondent sexually offending while on bail in 2007 and absconding during his trial in 2012 in respect of the 2011 offences.  However, I noted that the respondent was significantly older and, generally, had demonstrated an increased level of maturity and insight.  A considerable period of time had transpired since he committed, and was tried for, the relevant offences.  Although he had expressed objections initially to some of the proposed conditions of the ISO, I was prepared to accept that, on the materials filed in the preliminary hearing, those objections did not reflect a resistance by the respondent that would be likely to result in non-compliance with the conditions.  I considered the respondent's circumstances to be different from those that existed in 2007 and 2012.  I was of the view, on the materials then available, that the respondent had made gains in the rehabilitation programmes he had undertaken while in custody, including accepting responsibility and gaining insight into his offending behaviour.  Although he had outstanding treatment needs, they related to consolidation of the gains he had made, so as to achieve lasting change. 

   The fact that the respondent had been granted parole was also a relevant factor, as it would be expected that it would provide him with incentive to comply with the conditions of an ISO, to avoid returning to prison and to improve his prospects of being released on a supervision order in the event the court were to find at the div 2 hearing that he was a serious danger to the community. 

   The conditions of the ISO had been agreed after discussion with counsel and largely reflected the conditions that were likely to be imposed if the respondent were found to be a serious danger to the community.  They placed significant restrictions on his activities in the community, as well as obligations, including obligations to participate in further counselling and to refrain from alcohol and illicit drug use, as substance use had been a factor in his offending. 

   Given the subsequent developments concerning the respondent's conduct while on the ISO, which will be discussed later in these reasons, it is apt to reproduce here the following conclusions in CA that underpinned my decision to make an ISO:

   Overall, the impression from the evidence in these proceedings is that the respondent has behaved well while in custody, particularly in more recent times, and is likely to comply with conditions imposed by the court.  He has undertaken employment in prison and is keen to undertake employment with his father once he is released.  That will provide a protective measure against reoffending, in addition to the social support of his father and the constraints and monitoring that will be in place under a supervision order. 

   …

   I am satisfied that the very significant constraints that will be placed on the respondent's liberty and the activities in which he can engage, and the very substantial obligations that will be placed upon him by the conditions of the proposed interim supervision order, will sufficiently mitigate the putative risk that he poses of committing a serious sexual offence as to make it appropriate to release him subject to such an order.  On balance, I am satisfied that the respondent would comply with the standard conditions as well as the other conditions of the proposed interim supervision order.  The consequences of non-compliance are well known to the respondent in light of what was said during the course of the proceedings, and he will understand that if he breaches any of the conditions, he can expect to be brought back before the court and would then be subject to an interim detention order pending the div 2 hearing. 

   [23] See CA.

   [24] CA [No 2] [15] - [19] (citations omitted). References to an 'ISO' are to an interim supervision order.

2. It will be apparent that I was satisfied the interim supervision order was appropriate, despite some reservations. 

Contraventions of interim supervision order

Prior to restriction order hearing

1. The restriction order application was subsequently heard by me on 31 August 2020 and 3 September 2020.  The respondent had not committed any sexual or violent offence while in the community subject to the interim supervision order.  However, he had contravened some of the conditions of that order.[25]  Those contraventions were not such as to bring into question the respondent's capacity to substantially comply with the conditions of a supervision order, if such an order was made in the restriction order proceedings, although, as I indicated in CA [No 2], at least one of the contraventions (referred to as 'non-compliance', because he was not charged with a contravention offence) involved the respondent testing the boundaries of compliance, which was relevant to the issue of whether he would substantially comply.[26]

After restriction order hearing

[25] CA [No 2] [306] - [316].

[26] CA [No 2] [316].

1. At the conclusion of proceedings on 3 September 2020, I reserved my decision in relation to the restriction order application.  The respondent subsequently contravened conditions of the interim supervision order on four occasions, being on 15 October 2020, 1 March 2021, 21 March 2021 and on or about 20 June 2021.  Full details of the contraventions are set out in [317] to [337] of CA [No 2].  The following summary is sufficient for present purposes. 

2. The respondent was not charged with contravention offences in respect of the first two instances (referred to in CA [No 2] as incidents of 'non-compliance'), which involved travelling outside an 'inclusion zone' (designated by his CCO) while undertaking a work-related delivery, and breaching the curfew requirement in the supervision order.  Written warnings were issued to the respondent by his CCO in respect of those incidents.

3. The respondent was charged with contravention offences in respect of the next two contraventions.  The first involved attending a friend's place to assist him to move residence, knowing that his friend's female partner lived there.  Before doing so, he was required by his conditions to obtain authority from his CCO.  He failed to do so, and also failed to record the event in his diary, as required by his supervision order.  The respondent pleaded guilty to the contravention offence and was fined $800, which appears to have reflected that there were some mitigating circumstances, including the fact that the respondent disclosed the contravention to his CCO.

4. The second contravention was more serious.  When charged with that contravention on 30 June 2021, the respondent was remanded in custody.  That led to an incident, after he pleaded guilty in the Magistrates Court and was again remanded in custody, in which he appears to have taken an overdose of medication as a coping mechanism, resulting in the respondent being hospitalised after he fainted.[27] 

   [27] CA [No 2] [332] - [337].

5. As a consequence of those developments, the restriction order was relisted for the court to receive and consider evidence in relation to the contraventions and the respondent's circumstances more generally since the commencement of the interim supervision order, including his progress in treatment, notwithstanding that the evidence had concluded and I had reserved my decision on 3 September 2020.  A treatment progress report and updated Community Assessment Report were ordered at a directions hearing in July 2021.  There was some delay in the preparation of the treatment progress report, but the matter eventually proceeded to a further hearing on 16 September 2021.  At that stage, the respondent had not yet been sentenced in the Magistrates Court in respect of the second contravention.  That occurred on 20 September 2021, when the respondent was fined $2,000.  Having spent nearly three months in custody, he was then again released subject to the interim supervision order until I gave my decision in the restriction order proceedings on 15 October 2015.

1. The circumstances of the second contravention offence are particularly relevant as background for the contraventions the subject of these proceedings.  They were summarised in CA [No 2] as follows:[28]

   The ISO contained the following conditions:

   32.On the next occasion you report to your CCO, report the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship by you with any person. 

   33.Maintain a daily diary of your movements, activities and associations if and as directed by the CCO and present this diary to the CCO and Police Officer upon request. 

   On 29 June 2021, the respondent disclosed, initially to his psychologist and then to his CCO, that, on 20 June 2021, he had consensual sexual intercourse with an adult female at a beach and failed to document the incident in his diary.  The respondent contravened condition 32 of the ISO because he did not report the incident on the next occasion he reported to his CCO, which was on 22 June 2021.  He contravened condition 33 by failing to enter any details of his interaction with the woman in his diary. 

   On 30 June 2021, the respondent attended the local Detectives Office, where he was arrested in relation to the contraventions.  He participated in an interview, during which he admitted the offending.

   [28] CA [No 2] [329] - [331].

2. I will refer below to the significance I placed on that contravention in my findings in the restriction order proceedings.

Findings in the restriction order proceedings

1. For the purposes of the restriction order application, the respondent was examined by two court-appointed experts, a consultant forensic psychiatrist, Dr Wojnarowska, and a qualified forensic psychologist, Ms Hasson, both of whom prepared reports and gave evidence at the hearing.  Evidence was also given by Dr Poli, a Senior Forensic Psychologist with Forensic Psychological Services in the Department, who reviewed the respondent's treatment to date and assessed his outstanding treatment needs and how they may be met.  Evidence was also given by the Senior CCO who was managing the respondent's case. 

2. Although the respondent had engaged in rehabilitation programmes, including programmes specifically addressing sexual offending, he was found by Dr Wojnarowska and Ms Hasson to still have a number of dynamic risk factors for committing a further serious sexual offence involving violence, which, when combined with historical risk factors, led the experts to find that he was at above average or high risk of sexual reoffending if not subject to a CDO or supervision order.  The risk factors included the respondent's alcohol and substance use, and deficits in his coping skills when under stress.

3. However, the respondent had made progress in individual counselling, demonstrating insight into his offending and his risk factors, including his use of alcohol and methylamphetamine.  Both experts considered that his risk could be managed in the community, if he were subject to the supervision order that had been proposed by the Community Offender Monitoring Unit (COMU) and if he continued with psychological counselling, which remained available to him.

4. At the further hearing on 16 September 2021, I received in evidence an updated treatment progress report from Dr Riordan,[29] which set out developments in the respondent's treatment with the psychologist, Ms Hamlett-Waller, after 11 September 2020, including the respondent's own reflections on treatment.  It revealed that, despite the setback of the respondent's contravention that resulted in his incarceration on 30 June 2021, he had retained insights in relation to his offending over a significant period of time, had gained further insights in the most recent period of counselling, and had implemented strategies to deal with risk-related factors.[30]  It also indicated that the respondent had reflected on the consequences of his second contravention of the interim supervision order.[31]  However, there were issues that needed to be addressed in further treatment and were relevant to the management of his risk under a supervision order.  As those issues have persisted, it is appropriate to set out again Dr Riordan's opinion and my comments in relation to the issues:[32]

   Dr Riordan expressed the following views about further treatment, particularly in the context of difficulties faced by the respondent in forming an intimate relationship in the context of the constraints of a supervision order:

   Given that [the respondent's] index offending behaviour occurred within the context of an intimate partner relationship, treatment goals around interpersonal relationships remain particularly pertinent.  An ideal therapeutic situation would be where [the respondent] is able to establish an intimate partner relationship concurrent to therapeutic intervention in the community.  Such a situation would provide the appropriate context within which [the respondent] could apply and extend upon the skills that he has developed in this area and provide a context within which any relationship difficulties could be problem solved appropriately.  It would appear as though his current order requirements stifle incidental contact with age appropriate woman and consequently limit further development of treatment goals in this area.  Indeed, [the respondent's] recent mutually consensual sexual encounter and the associated contravention proceedings has induced a sense of shame, guilt and embarrassment that has reduced his motivation to seek out or commence an intimate relationship. 

   I am mindful of the tension between the desirability of the respondent developing a healthy intimate relationship at a time when he has counselling support to assist him to deal with problems, and the need to have protective measures in place for potential partners, including disclosure requirements, which may stifle the development of such a relationship and limit progress in treatment goals.  However, if the respondent is found to be a high risk serious offender, then the paramount consideration in formulating the appropriate restriction order is the adequate protection of the community, which most pertinently includes any such partners. 

   Similar considerations apply to the tension between encouraging the respondent to engage in recreational activities, which he uses to lift his mood and reduce stress, and the need for restrictions in a supervision order that tend to restrict or prohibit his participation in such activities, which the respondent identified as a source of frustration.  As I discuss below, there is a need for those responsible for supervising the respondent to endeavour to accommodate his desire to engage in such activities, if possible, within the parameters of the GPS monitoring constraints.

   [29] In CA [No 2], at [290], I incorrectly referred to having received oral evidence from Dr Riordan, in addition to her report. As appears at [166] - [175] of that decision, the only evidence from Dr Riordan was her report, dated 19 August 2021.

   [30] CA [No 2] [174].

   [31] CA [No 2] [174].

   [32] CA [No 2] [292] - [294] (citations omitted).

5. Having regard to all of the evidence in the contravention proceedings, including the additional evidence received on 16 September 2021, I was satisfied that the respondent was a high risk serious offender for reasons set out at [398] and [399] of CA [No 2], which I set out below for convenience:[33]

   Based on the evidence, which I find to be cogent and persuasive, I am satisfied to a high degree of probability that it is necessary to make a restriction order to ensure adequate protection of the community from an unacceptable risk that the respondent will commit a serious offence. 

   In particular, having regard to the respondent's offending history, his outstanding treatment needs, and the opinions of Dr Wojnarowska and Ms Hasson that the respondent poses an above average or high risk of serious reoffending (which has been substantially unchallenged), I am satisfied that the respondent's likelihood of reoffending is such that the community could not be adequately protected unless a restriction order is made.  The risk is unacceptable because of the level of the risk and the potential harm to any victim of such offending, which was outlined in the risk scenarios.  The fact that the risk has not materialised while the respondent has been in the community for an extended period must be considered in the context that he has been subject to the strict conditions of the ISO.  I am satisfied that, given the respondent's outstanding treatment needs, the community would not be adequately protected against the risk in the absence of a restriction order.  As I have explained, I am not satisfied that the Parole Order would provide adequate protection.

   [33] References to 'the ISO' are to the interim supervision order.

6. In determining whether I was satisfied that the respondent would substantially comply with the standard conditions of a supervision order, and whether such an order was otherwise appropriate, I took into account the respondent's prior contraventions of the interim supervision order and the fact that, at times, he had expressed frustration and negative views about some of the conditions.  I made the following remarks and findings:[34]

   At the time of the preliminary hearing, I was satisfied that the respondent would comply with the standard conditions as well as the other conditions of the ISO.  There has been no further evidence at this hearing that would dissuade me generally from that view, except for the respondent's non-compliance with the ISO on the occasion when he was charged with the second contravention offence.  Before that, there had been conduct that could properly be regarded as a pattern of failing to follow record-keeping and disclosure conditions in ways that were relatively minor.  However, the second contravention offence involved a failure by the respondent to disclose, at the first practical opportunity after it had occurred, a sexual encounter with a female associate with whom he had been associating for a short period.  He was obliged to make such disclosure under the ISO to ensure that he would have appropriate support in the event that he was developing an intimate relationship with the female associate.  It is in the context of an intimate relationship, or one that is perceived by the respondent as such, that he is most at risk of committing a further serious offence. 

   However, as I said in Hart, allowance can properly be made for missteps by a person who is subject to a supervision order.  The question is whether a misstep, or a series of missteps, indicates that the person is not going to substantially comply with a supervision order, or whether it should be regarded as part of the process of adjustment under the order, a process by which the person comes to appreciate the consequences of failing to comply with the order, as occurred in this instance, which resulted in the respondent being arrested and spending a period of time in custody before eventually being sentenced for the contravention, by way of a fine. 

   The fact that the respondent was fined for the contravention is a relevant consideration when determining the weight I should give to it, in assessing his capacity to substantially comply with the standard conditions of a supervision order. 

   Further, in making that assessment, I have had regard to the evidence in relation to the respondent's ongoing counselling, initially with Mr Roberts and then with Ms Hamlett-Waller, which, for the most part, has been positive and has demonstrated that he is taking steps in the right direction towards consolidating his treatment gains.  The evidence in relation to those sessions also supports the conclusion that the respondent has demonstrated a willingness to substantially comply with the standard conditions of a supervision order.

   [34] CA [No 2] [403] - [406] (citations omitted).

7. I then expressed the following conclusions in relation to the issues of substantial compliance and the capacity of the proposed supervision order to provide adequate protection of the community:[35]

   Having regard to the whole of the evidence, I am satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of a supervision order. 

   It is appropriate to note, however, that the respondent needs to appreciate that the conditions of a supervision order are implemented for reasons I have discussed in detail above, and strict compliance is required.  The respondent has expressed frustration and distrust in the justice system, believing that, up to this point, it has not done much for him.  This is an unhelpful viewpoint, which will not assist him in his future progress.  He will need to commit himself to engaging with the treatment, his supervising team and the requirements of the supervision order, including making appropriate disclosure.  As I indicated to the respondent during the proceedings, one can understand that he may feel embarrassed in a scenario such as that with which he was confronted, in which he was required to disclose to his supervising team his sexual encounter with a woman, but such disclosure is an important part of his reintegration into the community under conditions imposed to protect the community. 

   Notwithstanding the frustration and distrust occasionally expressed by the respondent, I am satisfied that his return to custody has impressed on him the importance of compliance with the conditions of a supervision order. 

   Of course, the respondent's conduct after the Magistrates Court hearing, when it appears he took an overdose of medication, which resulted in his hospitalisation, demonstrates continuing deficits in his coping skills, and is a matter of concern.  In particular, it raises a concern that he may resort to substance use to cope with significant stress in the future.  However, I am satisfied on the basis of Dr Riordan's report, that the respondent has a strong network of support in the community, both formal and informal, and he will be well supported to continue building his coping skills, while still being closely monitored. 

   In light of my finding that the respondent will substantially comply with the standard conditions of a supervision order, I am satisfied that the conditions of the supervision order annexed to these reasons will provide adequate protection of the community against the unacceptable risk that the respondent would commit a serious offence.  Those conditions are substantially as proposed by the applicant, with an amendment in relation to medical treatment, as I discussed above.  The conditions were considered to be appropriate by Dr Wojnarowska and Ms Hasson.

   [35] CA [No 2] [407] - [411].

8. In making the remarks concerning the respondent's attitude and what was required of him in terms of engagement with his supervising team, the court's expectation was that the respondent would derive some guidance from them to avoid future contraventions.  There is a risk such remarks will be regarded as platitudes, but I had formed the view from the treatment progress report that the respondent had demonstrated a preparedness to change and receive advice.

9. I went on, in CA [No 2], to express the following conclusions, and an expectation, in relation to the conditions of the proposed supervision order:[36]

   In my opinion, having regard to the whole of the evidence before me, the conditions set out in the Annexure to these reasons are appropriate, and no more than is necessary, to provide adequate protection of the community from the risk that the respondent will commit a serious sexual and/or violent offence.  The rationale for some of the conditions was discussed in the context of dealing with the evidence of Dr Wojnarowska and Ms Hasson about those matters.  I accept the views expressed by them. 

   …

   The use that will be made of those conditions to require the respondent to make his electronic devices available for inspection, will depend on assessments made by those who are supervising him.  It may be that, over time, it becomes apparent that they are not required to be enforced to the same extent as they might in the early stages of the supervision order.  It is nevertheless appropriate, for the respondent's benefit, that I indicate the reasons why I think those conditions are appropriate, as I have done. 

   Finally, in relation to the conditions of the supervision order, I reiterate the expectation that those responsible for the supervision of the respondent will accommodate, as much as possible, within the parameters of the supervision order, his desire to participate in recreational activities such as snorkelling and swimming, for reasons I explained above.

   [36] CA [No 2] [414], [416] - [417].

10. As will appear below, the respondent's ability to participate in ocean-based recreational activities has continued to be an issue.

Evidence in the contravention application

1. The evidence in these proceedings consists of a Book of Materials (BOM) comprising two volumes, dated 7 December 2022 (Exhibit 1) and 7 February 2023 (Exhibit 2),[37] tendered by the applicant, and the oral evidence of:

   (1)Dr Yewers, who examined the respondent and prepared an independent report in accordance with s 74 of the HRSO Act; and

   (2)Mr Luke Matthew Carmichael, a Senior CCO and Acting Team Leader in COMU, who prepared a report in respect of the respondent's performance while subject to the supervision order.

   [37] Exhibit 2, being Volume 2 of the BOM, should have commenced at page 533, but was incorrectly paginated to commence at p 433.  As the pagination was not corrected in the proceedings, references to parts of the BOM will be to the page number/s of the relevant exhibit, as paginated. 

2. The reports prepared by Dr Yewers and Mr Carmichael are in the BOM.[38]  Mr Carmichael's report included proposed amendments to the supervision order.

   [38] Exhibit 2, 436 - 483 (Dr Yewers), 484 - 504 (Mr Carmichael).

3. Section 74(2) of the HRSO Act required Dr Yewers to assess the level of the risk that, without a restriction order, the respondent will commit a serious offence. Section 54 of the HRSO Act authorises the court to order a respondent to undergo examination by a qualified expert for that purpose. As I indicated in dealing with the statutory framework, in contravention proceedings the court is not required to determine again whether the respondent is a high risk serious offender. However, the assessment of risk by the qualified expert will be relevant to which order is appropriate, if satisfied that there has been a contravention. Dr Yewers' report and oral evidence addressed matters relevant to that issue. In particular, she assessed the circumstances of the respondent's contraventions, the subject of this application, and the respondent's current risk, reviewed his progress in counselling, and made recommendations for future management of the respondent's risk.

4. The BOM also includes a Treatment Progress Report dated 27 January 2023, by Ms Catherine Korda, a Senior Forensic Psychologist with the Forensic Psychological Assessment Team in the Department.[39]  Ms Korda reviewed the respondent's progress in treatment since the supervision order was made, including his own perception of that progress, and discussed ongoing treatment options.

   [39] Exhibit 2, 505 - 517.

5. It is not necessary to particularise further the contents of the BOM, which contained historical materials as well as materials specific to the contraventions the subject of this application and the respondent's circumstances since the contraventions.  Where necessary, I will identify relevant materials in the context of specific issues.

The applicant contravened conditions of the supervision order

1. As I have already stated, it was not in issue at the hearing that the respondent contravened the conditions of the supervision order.  The convictions in the Magistrates Court, on the respondent's pleas of guilty, in respect of the three contravention offences were sufficient proof of the contraventions.  The respondent also admitted the contraventions to Dr Yewers, Mr Carmichael and Ms Korda.  Finally, they were admitted by the respondent in the course of these proceedings, through his counsel.  The particulars of the contraventions are set out in a document in the BOM, the title of which may be shortened to 'Particulars of Contravention Allegations'.[40]

   [40] Exhibit 1, 296 - 298.

1. Having regard to the convictions, the respondent's admissions, and the Particulars of Contravention Allegations, I am satisfied on the balance of probabilities that the respondent has contravened conditions 7, 9 and 29 of the supervision order, which are set out below. 

2. It follows that I must make one of the orders stipulated in s 55(1) of the HRSO Act. In determining the appropriate order, it will be necessary to have regard to the respondent's contraventions of the conditions of the supervision order, and his history of compliance or non-compliance with the conditions of the supervision order more generally. Those matters will be relevant to whether, from the time of the hearing of the contravention application, the respondent's risk of committing a serious offence can be adequately managed and sufficiently mitigated under a supervision order, and, if so, whether there is a need to amend the supervision order to ensure adequate protection of the community. That will require me to make findings about the circumstances of the contraventions, the respondent's level of compliance with the supervision order more broadly, his attitude towards the supervision order, his engagement with treatment, and his manageability, having regard to his interactions with officers who have been responsible for supervising him and monitoring his conduct. I must also have regard to Dr Yewers' opinion in relation to the respondent's current level of risk, having regard to her examination of the respondent and her assessment of the circumstances of his contraventions.

Making factual findings in respect of the contraventions

1. As the charges for the contravention offences were dealt with in the Magistrates Court, it is necessary to make findings of fact in respect of the contraventions that were the subject of the charges.[41]  The pleas of guilty constituted admissions of the essential facts of the relevant contraventions as particularised in the prosecution notices.  In addition, each plea was entered on the basis of a statement of material facts prepared by the police in respect of the relevant contravention.  Consequently, those facts were not in dispute in these proceedings.  The prosecution notices and statements of material facts are in evidence in the BOM, as are the Particulars of Contravention Allegations, to which I referred above.  In outlining the circumstances of the contraventions, I will also refer to other evidence in the BOM, including the respondent's explanations, where provided.

   [41] If the charges for the contravention offences had been dealt with in the Supreme Court, pursuant to s 81 of the HRSO Act, I could have relied in these proceedings on any findings of fact made by the court in the criminal proceedings: HRSO Act, s 81(4)(d).

Circumstances of the contraventions

1. The circumstances of the contraventions are as follows.

Respondent's acknowledgement of his obligations upon release

1. At the time the respondent was released on 15 October 2021, subject to the supervision order, he signed the original order below an acknowledgement on the last page that he had received a copy of the order, that the effect of the order and what may happen to him if he contravened it had been explained to him, and that he understood those things.[42]  It appears he was also required to read the conditions, and that he initialled all 53 conditions to acknowledge that fact on the copy of the supervision order he received.[43]  There is no dispute about the fact that the respondent was aware of his obligations under the order.

The conditions that were contravened

[42] Exhibit 1, 213, 300.

[43] Exhibit 1, 300 (Statement of Material Facts).

1. Although other conditions provide context for each of the conditions contravened by the respondent, it is appropriate to set out the conditions he contravened, for the purpose of assessing the significance of the contraventions. 

2. Condition 7 provided that the respondent:

   Be subject to electronic monitoring under section 31 of the High Risk Serious Offenders Act.

3. Condition 9 provided that the respondent was:

   Not to leave [the town where he was to reside] without first seeking and obtaining approval in advance from your CCO.

4. Condition 29 provided that the respondent must:

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

Facts of the contraventions

1. The respondent was monitored and managed in the community by CCOs from the Department and police officers from the WA Police High Risk Serious Offenders Team.

2. In accordance with condition 7 of the supervision order, the respondent's movements were monitored by a Global Positioning System (GPS) tracking device affixed to his ankle and monitored by COMU.

3. At about 2.30 pm on 13 March 2022, the Department received a 'strap tamper' notification.  This is an indicator that the GPS tracking device attached to the respondent was being tampered with, and possibly had been removed.  The last GPS positioning of the monitoring device was at a location opposite a carpark in a suburb of the town where he was required to reside.  Immediate inquiries determined that the respondent had cut the strap of the GPS monitoring device and removed it.  The device was recovered and handed to police. 

4. The removal of the GPS monitoring device by the respondent, so that he was no longer subject to monitoring under s 31 of the HRSO Act, in breach of Condition 7, was the first contravention offence.

5. The respondent then drove south from the town where he was required to reside, leaving the area that had been approved by his CCO for the purposes of the supervision order as the area within which he was allowed to travel.  The respondent drove 23 kilometres outside the designated area.  In doing so, he contravened Condition 9 of the supervision order, as he did not seek approval, and approval was not given, for him to travel outside the designated area.  That was the second contravention offence.

6. Upon being notified on 13 March 2022 that the respondent had tampered with his GPS monitoring device, police began an investigation and an extensive search for the respondent.  He was located the same afternoon, soon after, on a highway south of the town where he was required to reside.  He had been involved in a road traffic accident and was seriously injured.  He was taken to hospital at about 4.30 pm.

7. The statements of material facts and Particulars of Contravention Allegations provide no further details in respect of the accident.  Other information in the BOM, from prison medical records, indicates that the respondent suffered amnesia in relation to the time immediately before and during impact.[44]  However, those medical records also indicate that the motor vehicle accident occurred at more than 100 kilometres per hour, although the source for that information is not identified.[45]

   [44] Exhibit 1, 286.

   [45] Exhibit 1, 293.

8. At the hospital, the respondent provided a urine sample for analysis.  When tested, the sample returned a positive result for amphetamines.  It follows, and has been admitted by the respondent, that he had been in possession of, and used, a prohibited drug containing amphetamine, which was not prescribed to him.  That was a contravention of Condition 29 of the supervision order, and was the third contravention offence.

9. The materials in the BOM do not include the analyst's certificate in respect of the urinalysis test.  However, Mr Carmichael's Adult Community Corrections Performance Report, dated 25 January 2023,[46] refers to the results of analysis of a blood sample taken from the respondent while he was in hospital, as follows:[47]

   The analysis returned a positive result for several substances including amphetamine/methylamphetamine, morphine, anti-depressant type substances, anaesthetics (including Ketamine) and other mental health type substances including benzodiazepines and anti-anxiety medications.  Given [the respondent] was receiving medical intervention at the time of the test, due to his motor vehicle accident, the majority of these substances are likely to have resulted from his treatment.  The positive analysis for amphetamine and methylamphetamine was however consistent with the urinalysis sample obtained on the day of the accident.

   [46] Exhibit 2, 484 - 504.

   [47] Exhibit 2, 486.

10. The significance of that information is that it indicates methylamphetamine was detected, as well as amphetamine.  Those results may be related.  They tend to confirm the respondent's subsequent accounts that he used methylamphetamine, a prohibited drug he had used previously.

11. As well as being charged with the contravention offences, the offence under s 31(3) of the HRSO Act and the offence of wilfully and unlawfully damaging property under s 444 of the Criminal Code, the respondent was also charged with an offence of driving while impaired by drugs.[48]

    [48] Exhibit 2, 486.

12. As appears above, the particulars of the contravention offences indicate that the respondent was seriously injured in the motor vehicle accident.  The only details in respect of his injuries are in the prison medical records contained in the BOM, which refer to information received from the regional hospital where the respondent was taken initially, and from Royal Perth Hospital (RPH), to which he was transferred and where he was intubated in the Intensive Care Unit (ICU) while unconscious.[49]  The regional hospital had indicated the respondent had life-threatening injuries, and his condition in the ICU at RPH was reported on 14 March 2022 as being critical, but stable.[50]  Later that day, it was reported that he was taking a long time to wake up, and that he was possibly under the influence of illicit drugs.[51]  However, subsequent entries in the prison medical records indicate that the respondent did not suffer any fractures or internal injuries.[52]  Further, although he was diagnosed as having suffered a closed head injury, also referred to as a cerebral injury, no intracranial bleeding was detected in scans.[53]  On 16 March 2022, he was discharged from hospital and was reported to have made an excellent recovery.[54]  On 18 March 2023, a doctor at the prison observed swelling and mild bruising of the back of the respondent's head.[55]  When examined on 23 March 2022, he was not found to have any abnormal neurological signs, but reported 'headache, amnesia and insomnia'.[56]

    [49] Exhibit 1, 293.

    [50] Exhibit 1, 293.

    [51] Exhibit 1, 293.

    [52] Exhibit 1, 291, 292.

    [53] Exhibit 1, 292.

    [54] Exhibit 1, 292.

    [55] Exhibit 1, 285.

    [56] Exhibit 1, 284.

13. That medical history is part of the consequences of the respondent's contraventions.  Although he was described as having been seriously injured, which no doubt encapsulates the fact that he suffered a non-specified closed head injury and was rendered unconscious, he was fortunate not to have suffered any significant physical injuries.  However, the potential for a high speed motor vehicle accident to result in catastrophic consequences is obvious.  From his subsequent accounts, the respondent appears to be cognisant of that potential and the risk he created by driving while affected by drugs.  For instance, he told Ms Korda that 'through his lapse, he had "almost lost everything", which he described to include his life, remaining family supports and freedom'.[57]  His reference to almost losing his life would appear to relate to his conduct in driving his vehicle while affected by drugs. 

    [57] Exhibit 2, 511 [22].

14. However, it is also apparent from what the respondent said to Ms Korda, and from other statements I will discuss below, that he has a broader appreciation of the consequences of contravening the supervision order in the manner he did on this occasion, including loss of his freedom.  His description of his conduct as a 'lapse' is concerning, and inapt, having regard to the surrounding circumstances, to which I will refer in more detail below.  One also needs to have regard to the respondent's prior assertions that he had learnt his lesson from earlier contraventions, which did not prevent his conduct on 13 March 2022.  Nevertheless, the consequences, both actual and potential, were far greater for the respondent on this occasion, and might be expected to have a greater deterrent effect.

Circumstances referred to in the Magistrates Court proceedings

1. At the sentencing proceedings in the Magistrates Court on 9 May 2022, the respondent's counsel informed the court that the contraventions occurred in the context of the respondent experiencing numerous stressors, including the anniversary of his mother's death and work-related issues.[58]  It was submitted that the respondent was struggling to cope with those stressors and the general pressures of an onerous supervision order.[59]  The incident occurred on a Sunday.[60]  It was submitted that and the respondent was not able to contact his CCO or 'get in to see his [psychologist]',[61] who were his key supports, that he was 'freaking out'[62] and used amphetamine as a 'self-medicating mechanism',[63] and that he left town because he wanted to see a friend.[64] It was submitted that the respondent's use of amphetamine was 'for no other reason than to try and deal with the vicissitudes of life on a daily basis'.[65]

   [58] Exhibit 1, 315.

   [59] Exhibit 1, 315 - 316.

   [60] Exhibit 1, 319.

   [61] Exhibit 1, 315 - 316.

   [62] Exhibit 1, 315.

   [63] Exhibit 1, 315

   [64] Exhibit 1, 316.

   [65] Exhibit 1, 317.

2. The prosecutor noted that, while it was accepted that the respondent would have had difficulty contacting his CCO or psychologist, because the incident occurred on a Sunday, the respondent could have attended the emergency department of the regional hospital for assistance.[66]  Further, any issues arising from the respondent's employment were likely to have built up over a period of time, which begged the question why the respondent had not sought assistance earlier, during the week, when his supports were more likely to be available.[67]  In response, it was submitted on the respondent's behalf that his behaviour needed to be considered through the prism of someone with mental health issues, who was not able to exercise judgment in a calm and rational way.[68]

   [66] Exhibit 1, 319.

   [67] Exhibit 1, 319 - 320.

   [68] Exhibit 1, 320.

3. It was submitted on behalf of the respondent that, in all the circumstances in which the offences came to be committed, it would be unjust to impose the mandatory minimum sentence for the offence under s 31(3) of the HRSO Act.[69]  The learned magistrate disagreed, noting that the factors on which the respondent relied were all matters that were relevant to the need for supervision, and in respect of which the respondent was being monitored, including the fact that he was 'prone to perhaps self-medicate'.[70]  His Honour also noted that the respondent's conduct in removing the monitoring device and avoiding detection involved significant effort, and it was not simply a case of the respondent wanting to speak with a friend and going outside his 'exclusion zone', having 'self-medicated with some substance'.[71]

Context in which the contraventions occurred

[69] Exhibit 1, 317.

[70] Exhibit 1, 321.

[71] Exhibit 1, 322.

1. Insight into the respondent's circumstances that led to the contraventions may be gleaned from:

   (1)the case notes made by the respondent's CCO at the time, Ms Perovic, who is a Senior CCO (SCCO), in the Department's Community Business Information System (CBIS);[72]

   (2)the reports of the respondent's counselling psychologist, Ms Hamlett-Waller, dated 20 April 2022, 29 August 2022 and 6 December 2022;[73]

   (3)Dr Yewers' outline of the relevant events, derived from Ms Perovic's notes and other materials, including Ms Hamlett‑Waller's reports;[74]

   (4)Mr Carmichael's report;[75] and

   (5)Ms Korda's report.[76]

   [72] Exhibit 1, 513 - 519.

   [73] Exhibit 1, 503 - 512, 520 - 525, 528 - 532.

   [74] Exhibit 2, 454 - 455 [84] - [87].

   [75] Exhibit 2, 488 - 489.

   [76] Exhibit 2, 510 [19] - [20].

2. By the time of the contraventions of 13 March 2022, the respondent had engaged in 52 counselling sessions with Ms Hamlett-Waller, commencing on 11 September 2020.[77]  As the respondent was in a regional location, the sessions were conducted by videoconference.[78]  Sessions varied in duration, between 30 minutes and an hour, although on occasions they lasted longer than an hour.[79]

   [77] Exhibit 1, 503 [4].

   [78] Exhibit 1, 503 [4].

   [79] Exhibit 1, 503 [4].

3. By way of overview, although the respondent had reported to his CCO on a weekly basis and had engaged in treatment with Ms Hamlett‑Waller, as required, he had voiced frustrations regarding what he considered to be the restrictive nature of the supervision order, particularly in respect of the inclusion zone and the curfew requirements.[80]  He had expressed the view that the order constituted further punishment, and that he was being restricted from progressing with various aspects of his life.[81]

   [80] Exhibit 2, 489.

   [81] Exhibit 2, 489.

4. In her report dated 20 April 2022, Ms Hamlett-Waller provided the following summary of the intervention that had taken place prior to the contraventions on 13 March 2022 (references to 'contravention convictions' are to the earlier contraventions in June 2021):[82]

   [The respondent's] engagement whilst subject to his Interim Order was considered appropriate and, although apprehensive at times, he began to discuss topics which he reported were difficult to discuss.  However, his focus began to shift once his Supervision Order was imposed on 15/10/2021, shortly after his release from a period of custody.  Following [the respondent's] contravention convictions, he reported feeling betrayed by the Department of Justice (DoJ).  Although he did not explicitly direct blame to the author, it was considered this series of events resulted in distrust and tension with DoJ staff, including in the therapeutic relationship.  After his declaration, [the respondent] continue[d] to bring the discussions back to his order conditions and how they were stifling his quality of life and ability to self-regulate.  Sessions occasionally ran over time to ensure [the respondent] was regulated and motivated to comply with his conditions.  Sessions often became focussed on processing, reframing and allowing [the respondent] space to ventilate his grievances and to seek general support.  Although seen as essential to manage the potential for imminent risk and assist with emotional regulation, this was often at the expense of exploring underlying criminogenic needs.

   [82] Exhibit 1, 504 - 505 [8].

5. The respondent previously had a short-lived relationship with Ms R, the woman who was the subject of the incident referred to at [52] above. The respondent told Dr Yewers that the relationship had 'deteriorated after Police visited her home and conspicuously informed her of [his] offending, causing her embarrassment', and it had ended when he was returned to prison for the June 2021 contravention.[83] 

   [83] Exhibit 2, 443 [43].

6. After becoming subject to the supervision order, the respondent formed a relationship with another woman, Ms CA.  He informed Ms Hamlett-Waller in February 2022 that he had met a potential partner with whom he wanted to engage in a relationship.[84]  This was shortly after a counselling session in which he had told Ms Hamlett-Waller that he would consider being in a relationship.[85]  After telling Ms Hamlett-Waller that he wanted to have a relationship with the potential partner (Ms CA), the respondent's mood deteriorated, and he 'presented as highly anxious about being arrested and returned to custody due to his earlier experience related to reporting his sexual association with Ms R in June 2021'.[86] 

   [84] Exhibit 1, 504 [6] (Intervention Progress Report, 20 April 2022, of Ms Hamlett-Waller); Exhibit 2, 454 [85] (Dr Yewers' report).

   [85] Exhibit 1, 509 [27].

   [86] Exhibit 2, 454 [85] (Dr Yewers' report); Exhibit 1, 504 [6], 509 [27] (Intervention Progress Report, 20 April 2022, of Ms Hamlett-Waller).

1. However, the evidence indicates that, for the most part, prior to the contraventions of 13 March 2022, the respondent had complied with the conditions of his supervision order in a manner that could be regarded as substantial compliance.  It is significant that he has not committed a serious offence, whether a sexual offence or a violent offence, at any time during the period that he has been subject to the interim supervision order or the supervision order.

2. I have taken into account my findings at [128] to [137] above in respect of the circumstances in which the contraventions were committed.  As I indicated in those findings, there are questions about the respondent's reliability in the various accounts he has given about those circumstances.  However, I have accepted that the respondent was beset by confused thinking, internal conflicts and stress concerning his relationship with Ms CA, and that the anniversary of his mother's death added emotional issues that he found difficult to deal with.  I am also satisfied that the factors that led to his offending on this occasion included stress from circumstances related to the enforcement of the conditions of the supervision order.  There was nothing improper about the way in which the conditions of the supervision order were being enforced.  The matter that appears to have caused most stress was the police visit to Ms CA when the respondent was not aware that it would occur, which appears to have been the result of a miscommunication between COMU and the police.  However, the respondent had also found it difficult to cope with the fact that he is not able to engage in some of the recreational activities he enjoys, such as diving, because he is required to wear an electronic monitoring device that cannot be submerged in water.  That restriction deprived him, to some extent at least, of a means by which he might reduce or manage his stress, and thereby cope better with the pressures that come with being subject to a supervision order that imposes significant constraints on his freedom.

3. All of this is in the context that the respondent's risk factors include poor coping skills and resorting to substance use when he does not cope well.  I have found that he succumbed to the use of methylamphetamine in those circumstances, after a night of negative ruminations, and that the methylamphetamine then contributed to his impaired judgment when he cut off the tracking device and left town.  I have also accepted that, at the time of the motor vehicle accident, the respondent had decided to turn back and return to the town where he was required to reside.  That suggests that he realised he could not persist with his wrongdoing, and he was prepared to face the consequences of that wrongdoing.

4. As I stated earlier, the circumstances provide some mitigation in respect of the contraventions, when considering whether a supervision order remains suitable to provide adequate protection of the community against the otherwise unacceptable risk that the respondent would commit a serious offence.

5. Further, as I have outlined in these reasons, it is evident that the respondent has learnt the consequences of contravening the conditions of the supervision order in a serious way, as he has been imprisoned for a period of 12 months in relation to the offending.  He has indicated an appreciation that it is preferable to be subject to constraints in the community than to be in custody.  Although one might have hoped he had learned that lesson when he contravened the conditions of the interim supervision order, the circumstances were different, in that he was not sentenced to imprisonment for that contravention, and the period he was in custody on remand was relatively short.  Further, the respondent has also learnt the risks to himself of engaging in conduct of the kind that occurred on 13 March 2022, as he was seriously injured (in the manner I explained above) as a result of using an illicit substance and falling asleep at the wheel of his car.  These considerations provide me with some confidence that it is unlikely he would contravene the supervision order in the same way again, that is, by using illicit drugs, removing the electronic monitoring device and leaving the inclusion zone within which he is required to remain.

6. The respondent has expressed a renewed resolve to comply with the conditions of the supervision order and to tolerate the restrictions on what he considers to be a normal life.  He has expressed similar sentiments in the past, yet he has since contravened various conditions of the supervision order.  While I do not doubt his resolve, the question is whether it will withstand the kinds of stresses that led to his contraventions on 13 March 2022.  I consider that he should be given another opportunity to demonstrate that he can comply with the conditions of a supervision order, to ensure adequate protection of the community.  He will do so in circumstances in which he will continue to receive treatment in counselling.

7. On balance, having regard to all of the circumstances I have outlined, I am satisfied that the respondent will substantially comply with the conditions of the supervision order, which will be amended.  In coming to that conclusion, I have had regard to the factors that are relevant to the assessment of whether a person would substantially comply with a supervision order, as discussed in Hart.[282]

   [282] See [35] above.

8. Based on the whole of the evidence presented in these proceedings, including the evidence of Dr Yewers and Mr Carmichael, and having regard to the parties' submissions, I am also satisfied that there are amendments that should be made to the supervision order of 15 October 2021.  The assessment of the respondent's risk does not warrant the amendment of the supervision order so as to impose further obligations on the respondent or further constraints on his liberty.  The amendments do not do those things.  To the extent that they go beyond administrative matters, they should have the effect, to some extent, of reducing pressures on the respondent.

Amendments to the conditions of the supervision order

1. Amendments will be made to conditions 1 and 16 of the supervision order to provide for a time by which the respondent must report to a CCO after his release from prison.

2. I am satisfied that condition 17 should be deleted, as the respondent is not subject to the provisions of the Community Protection (Offender Reporting) Act 2004.

3. I am satisfied that condition 32 should be amended to delete the word 'curtilage' and to substitute the words 'front yard', so as to make it clear that the respondent is required to present himself at the front door or the front yard of the approved address, when police attend his address for a curfew check.

4. I am satisfied on the evidence of Dr Yewers and Mr Carmichael that condition 39 should be amended by inserting the words 'with the exception of cafes, restaurants and sporting clubs' with respect to the prohibition on the respondent attending or remaining at any licensed premises.  I accept that, given his previous compliance with that condition, some relaxation is appropriate at this stage (without requiring the permission of the respondent's supervising CCO) to give the respondent some greater freedom in relation to the places he can attend to socialise, which will provide an outlet for stress and will enhance his ability to lead a pro-social life.

5. I am also satisfied, on balance, having regard to the evidence of Dr Yewers, that condition 48 should be deleted, as it is not a condition that is necessary to address a known risk factor for the respondent.  Access to pornographic material has not been found to be a risk factor for him, having regard to his history of serious sexual offending.  It may be that having access to such material would be a means for him to deal with stresses in his life, if that is what he chose to do.  If the respondent were to access material that might be considered relevant to his risk, the conditions concerning electronic devices provide a means by which that could be identified, and it could then be addressed in treatment and supervision sessions.  If an amendment to include a condition relevant to such material was then considered necessary, an application could be made to this court for that purpose.[283]

   [283] HRSO Act s 49.

6. I am also satisfied that it is appropriate to amend the supervision order to include a condition requiring the respondent to sign a written authority to police officers from the Western Australia Police to access his internet accounts and do things necessary to gain such access and inspect the accounts, as described above.  The respondent did not object to the inclusion of the condition.  This will ensure there is ongoing authority for the police officers to do so and will avoid any issues that might arise concerning the granting of such authority.  It will mean that the police can proceed on the basis that they have authority, rather than leaving room for argument about whether, in any particular situation, they were authorised to take the specified approach to accessing data.  That condition will be added as condition 54.

7. I am satisfied that each of the amendments is necessary and appropriate to improve the efficacy of the supervision order and the ability of the authorities to monitor the respondent's conduct, and to relax some of the constraints that have applied to date, enabling the respondent to better reintegrate into the community and better manage his risk factors.  I am satisfied that the amendments that relax the conditions do not compromise the effectiveness of the supervision order to ensure adequate protection of the community.

8. Accordingly, I have decided that the appropriate order under s 55 is an order amending the supervision order made on 15 October 2021, as outlined above.

Duration of the amended supervision order

1. As I noted at the outset, the applicant did not apply for an extension of the period of the supervision order.  The period will be extended from the commencement date of 15 October 2021 by the period of 12 months the respondent was in custody serving his sentence.  Dr Yewers considered that the remaining period, which will be approximately 3 years and 9 months, will be sufficient to determine whether the respondent's risk has abated sufficiently to no longer be significant in the absence of a restriction order.  If an assessment is made by the authorities within the last year of the period of the amended supervision order that the respondent's risk of committing a serious offence remains unacceptable, the applicant can apply for a further supervision order.[284]  The court would then be required to determine whether the respondent is a high risk serious offender at that time, and if so, what order is appropriate.

   [284] HRSO Act s 36.

Recommendation for further management of the respondent

1. I would add, finally, that, consistent with my discussion with Mr Carmichael when he gave evidence, consideration should be given to the respondent's CCO exercising their discretion under s 31(4) of the HRSO Act to suspend electronic monitoring for fixed periods, where it is considered appropriate to do so, to enable the respondent to engage in water sports or other recreational activities that would require the respondent to be submerged in water, if that is practicable. The respondent would need to give sufficient notice of his intention to engage in such activity, indicating when and where he intends to engage in such activity. Obviously, this could only be done if it would not compromise the integrity of the tracking device.

2. There is no suggestion that any of the respondent's offending was in any way related to water activities, whether on a boat or in the water.  The evidence supports the conclusion that such activities may well assist the respondent to return to a normal pro-social life in which he is less stressed and better able to comply with his supervision order for the balance of the term of that order. 

3. I appreciate there may be practical difficulties with what is proposed. What is harder to understand is why it should be necessary for the decision whether to exercise the discretion to be escalated up the management line anytime the respondent may wish his CCO to consider suspending electronic monitoring. Section 31(4) specifically empowers a CCO to exercise the discretion. It may be accepted that the exercise of that power can be subject to policy considerations or guidelines, which might include the need for approval at a higher level. However, the supervising CCO would ordinarily be best placed to assess whether the exercise of the discretion would create an unacceptable risk. That would seem unlikely in the respondent's case, for the reasons I have given. The respondent's participation in recreational activities of the kind under consideration should be regarded as part of his rehabilitation.

4. If it is not practicable to achieve this desired goal with the current tracking device, consideration should be given to finding tracking devices that can be submerged in water without compromising their integrity, or that can be removed and replaced readily, to enable the respondent to engage in such activities for specific periods. 

5. These are not matters upon which the court can give any direction, because the monitoring and management of risk is the responsibility of the Department and the Western Australia Police, and the court may not be aware of matters known to the authorities that may affect the appropriateness of enabling the respondent to engage in activities in the way that I have indicated.  However, I have made the above recommendations in the hope that the respondent may be given opportunities in the future consistent with what was described by Dr Yewers in her evidence.

Comments to respondent

1. At the time of giving my decision, I directed comments to the respondent indicating that it was important that he now appreciates that he has been given a further opportunity on the supervision order, and that he may not receive a further opportunity in the future to remain on a supervision order, with amendments or otherwise, if he contravenes the conditions of the amended supervision order in a serious way, because the court will then have to consider whether his risk has increased in such a way that it is necessary to impose a continuing detention order.  I indicated that it is important, therefore, for him to bear in mind the risk of returning to custody if he were to contravene the conditions of the supervision order in a serious way.

Orders

1. On the basis of these reasons, on 28 March 2023, I made the following orders:

   1.Pursuant to section 55(1)(b) of the High Risk Serious Offenders Act 2020, the conditions of the supervision order made by me on 15 October 2021 are amended as marked on Annexure 'A' (the supervision order).

   2.The supervision order is to take effect on 28 March 2023. 

ANNEXURE 'A'

IN THE SUPREME COURT OF WESTERN AUSTRALIA

SO 5 of 2020

IN THE MATTER of the High Risk Serious Offenders Act 2020

THE STATE OF WESTERN AUSTRALIA  Applicant

-and-

CA  Respondent

_______________________________________________________________________

SUPERVISION ORDER MADE BY THE HON JUSTICE FIANNACA
ON 15 OCTOBER 2021 AS AMENDED BY THE HON JUSTICE FIANNACA
ON 28 MARCH 2023

_______________________________________________________________________

Pursuant to section 48(1)(a) of the High Risk Serious Offenders Act 2020 (WA) (High Risk Serious Offenders Act), having found that the Respondent is a high risk serious offender within the meaning of section 7(1) of the High Risk Serious Offenders Act, the Court orders that the Respondent be subject to a supervision order for a period of 4 years from 15 October 2021, on the following conditions:

You, CA, must: 

STANDARD CONDITIONS REQUIRED BY THE ACT

1. Report to a Community Corrections Officer (CCO) at [redacted] by 4:00pm, on Monday 18 October 2021 and within 48 hours of your release from custody after the commencement of this Order as amended and advise the officer of your current name and address.

2. Report to and receive visits from, a CCO assigned to you (your CCO) in accordance with this Order.

3. Notify your CCO of every change of your name, place of residence, or place of employment at least 2 business days before the change happens.

4. Be under the supervision of your CCO, which includes complying with any reasonable direction of the officer, including a direction for the purposes of section 31 or 32 of the High Risk Serious Offenders Act.

5. Not leave or stay out of the State of Western Australia without the permission of your CCO.

6. Not commit a serious offence as defined in the High Risk Serious Offenders Act (serious offence) during the period of the Order.

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

ADDITIONAL CONDITIONS

Residence

1. Take up residence at [redacted] and spend each night at that address or at a different address only if such different address is approved in advance by your CCO.

2. Not to leave [redacted] without first seeking and obtaining approval in advance from your CCO.

Reporting to a CCO and supervision by a CCO

1. Be under the supervision of your CCO, report to and receive visits from your CCO at times and places as directed by your CCO, and comply with the lawful orders and directions of your CCO.

2. Not commence or change paid or unpaid employment, education, training or volunteer work without the prior approval of your CCO.  Should your pre-approved employment require you to work at different locations, you are required to notify your CCO of any change of location where you are working, during working hours on the day you are working at the new location, or as otherwise directed by your CCO.

Treatment programmes and mental health

1. Consult and engage with any psychiatrist, psychologist or counselling service or medical practitioner as directed by your CCO to address issues arising from your past offending and your risk of committing a serious offence, including issues with respect of your mental health.

2. Comply with the requirements of all programmes designed to address your past offending behaviour and your risk of committing a serious offence, as directed by your CCO.

3. Comply fully with all treatment prescribed by any psychiatrist, psychologist or medical practitioner consulted by your pursuant to condition 12, including mental health treatment, EXCEPT that you are not required to take Selective Serotonin Reupdate Inhibitor medication or antilibidinal/anti-testosterone medication unless you consent to do so.

4. Permit any psychiatrist, psychologist, counsellor or medical practitioner, to disclose to the Department of Justice, any details of psychiatrist, psychological or medical treatment and any opinions relating to your level of committing a serious offence and your compliance with treatment.

Reporting to WA Police

1. Report to the Officer-in-Charge of the [redacted] Detectives Office situated at [redacted] by 4:00pm on Monday, 18 October 2021 and within 48 hours of your release from custody after the commencement of this Order as amended, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of [redacted] Detectives Office or his/her delegate.

2. [Deleted]. 

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

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

5. When requested, advise Police of the names of all of your internet service providers, all mobile or landline telephone services used by you and all internet user names or identities used by you.

Disclosure/Exchange of Information

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

2. Allow your CCO, WA Police, or other person or agencies approved by your CCO, to interview any of your associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history.

Restrictions on contact with Victims

1. Have no contact, directly or indirectly, with the victims of any of your sexual offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-Offender Mediation Unit of the Department of Justice.

2. Unless contact with victims is permitted pursuant to condition 23, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of the victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times.

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

4. Not breach any provision or, or commit any offence under, the Restraining Orders Act 1997 (WA).

Criminal conduct

1. Not commit any offence contrary to section 202, section 203 or section 204 of the Criminal Code 1913 (WA).

2. Not commit any criminal offence where the maximum penalty for which includes imprisonment, and which involves violence, threats of violence, or the possession of weapons or offensive instruments.

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

4. Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA).

Curfew

1. Be subject to a curfew on the same terms as set out in section 32 of the High Risk Serious Offenders Act, such that you are to remain at and not leave your approved address as directed by your CCO from time to time.

2. When subject to the curfew under this order, present yourself for inspection at the front door or curtilage front yard of the approved address, or speak on the telephone to any CCO or Police Officer or their agent monitoring your compliance with the curfew.

3. When subject to the curfew under this order, to ensure that all those people present in the residence who may answer the telephone or door are aware as to your obligations, and to request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring compliance with the curfew.

Prevention of high-risk situations

1. On the next occasion you report to your CCO, report any relationship you have formed with any person if the relationship is a friendship or a relationship of a domestic, romantic, sexual or otherwise intimate nature. 

2. Maintain a daily diary of your movements, activities and associations as directed by your CCO and present this diary to your CCO and/or Police Officer upon request.

3. As directed by your CCO, make full disclosure regarding your past offending and this order to anyone with whom you commence a friendship or a relationship of a domestic, romantic, sexual or otherwise intimate nature, which disclosure can be confirmed by your CCO or a Police Officer. 

4. Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by your CCO.

5. Not possess, consume, purchase, or use alcohol, unless approved in advance by your CCO.

6. Not go to or remain at any licensed premises with the exception of cafés, restaurants and sporting clubs unless permitted or required to do so for the following reasons:

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

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

   (c)On the order of your CCO or Police Officer.

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

8. Provide a valid sample for testing pursuant to condition 40.

9. Not to remain in the presence of any person who you know or ought to know to be affected by a prohibited drug.

10. Not to remain in the presence of any female who you know or ought to know to be affected by alcohol, unless the identity of that person is approved in advance by your CCO.

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

12. With the exception of public transport, not enter in or go on any vehicle with any female (other than [redacted]) or where any female (other than [redacted]) is present (whether that vehicle is under your control or not), unless the identity of such person is approved in advance by your CCO.

13. Not enter any residential address in which a female (other than [redacted]) resides or is known to reside, unless authorised in advance by your CCO or as a consequence of your employment, provided that, if the purpose for entering the residence is as a consequence of your employment, you may enter and remain in the residence ONLY IF [redacted] or a work colleague is also present. 

14. Not permit any female (other than [redacted]) to enter any residential address in which you reside, unless the identity of such person is approved in advance by your CCO.  If you are in any other residential address and a female enters, you must remove yourself from that residential address immediately and you must inform your CCO and a Police Officer at your next scheduled meeting.

15. [Deleted].

16. Advise your CCO of every computer, telecommunication and/or electronic device (which includes apparatus such as Smart TVs) capable of storing digital data or information possessed or used by you, whether or not it is capable of being connected to the internet, and the location of that device.

17. Not allow any person other than your CCO or a Police officer access to any computer, telecommunication and/or electronic device referred to in condition 49, without prior approval of your CCO.

18. Enable device locking or password access of your computer, telecommunication and/or electronic devices; not provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device referred to in condition 49 or any online accounts, to any person other than you CCO or a Police Officer.

19. Upon request, permit your CCO or a Police Officer at any location nominated by them to access any computer, telecommunication and/or device capable of storing digital data, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and provide to your CCO or a Police Officer upon request any passwords or any other means used to unlock or access the device; should any other entity be required to access a device for instances such as technical advice, approval must be sought in advice from your CCO.

20. Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised by another person, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunications and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by your CCO or a Police Officer.

21. Sign a written authority to police officers from the Western Australia Police Force (WA Police Force) to:

    (a)access any cloud-based platforms or services associated with the devices you use, and examine the internet accounts at any time for the purposes of monitoring your online behaviour (absent any investigation for any offence); and

    (b)use passwords or tokens located within your devices to access any cloud-based platforms and services and that a password may not be required; and

    (c)     change the password(s) to these accounts so you will no longer have access.

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

AJ

Associate to the Honourable Justice Fiannaca

8 MAY 2023