The State of Western Australia v CA [No 5]

[2024] WASC 414

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- CA [No 5] [2024] WASC 414

CORAM:   FORRESTER J

HEARD:   20 JUNE & 31 OCTOBER 2024

DELIVERED          :   11 NOVEMBER 2024

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 and s 55 of the High Risk Serious Offenders Act 2020 (WA) - Whether respondent proved on balance of probabilities to have contravened the supervision order - Whether the supervision order should be rescinded, affirmed, amended or extended

Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

Supervision order rescinded

Continuing detention order made

Category:    B

Representation:

Counsel:

Applicant	:	Mr D S McDonnell
Respondent	:	Mr T Hager

Solicitors:

Applicant	:	State Solicitor's Office (WA)
Respondent	:	George Giudice Law Chambers

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

Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4

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

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

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 CA [No 3] [2023] WASC 144

The State of Western Australia v CA [No 4] [2024] WASC 28

The State of Western Australia v Corbett [No 5] [2017] WASC 115

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

FORRESTER J:

Introduction

1. This is a contravention application in respect of the respondent, pursuant to s 55 of the High Risk Serious Offenders Act 2020 (WA) (Act).

2. As at the date of the application, the respondent was subject to a 4 year supervision order (SO), which commenced on 15 October 2021 and was amended on 28 March 2023.

3. The matters I must decide are:

   (1)whether, on the balance of probabilities, the respondent has contravened, or is likely to contravene, the SO; and if so

   (2)whether the SO should be rescinded and a continuing detention order made or whether the respondent should be permitted to remain on the supervision order with or without amendment or extension.

4. For the reasons which follow:

   (1)I am satisfied that the respondent has contravened the SO; and

   (2)the SO should be rescinded and a continuing detention order made, on the basis that there are no conditions which can presently be imposed which will adequately protect the community.

Background

1. The history of these proceedings and the circumstances in which the respondent was found to be a high risk serious offender are set out in detail in The State of Western Australia v CA,[1] The State of Western Australia v CA [No 2],[2] and The State of Western Australia v CA [No 3].[3]  These reasons are to be read in conjunction with the reasons in those decisions.  It is useful, however, to repeat the summary given by Fiannaca J in CA [No 2][4] of some key aspects of the respondent's offending history:

   In relation to the offending in 2004, Ms A was the respondent's partner and the offences occurred in their home.  He became angry and violent towards her when she refused to have sex with him.  He had consumed a large amount of alcohol.  The violence included pushing Ms A into a wall and strangling her to the point that she almost passed out.  She suffered a bloodied nose from that initial attack.  Subsequently, when Ms A again refused to have sex with him, the respondent threw a knife at her, which lodged in her head causing grievous bodily harm, of a life‑threatening nature.

   In relation to the offences in 2007, the respondent indecently assaulted a young woman, Ms C, who had accepted a lift with him 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.

   In relation to the offending in 2011, Ms L was a foreign national who was in Australia on a visa and was staying at the respondent's home.  They had been sexually intimate on two occasions, but she had resisted the respondent's further persistent advances and did not consider herself to be in a sexual or romantic relationship with him.  He became jealous towards her.  On the night of the offending, the respondent became angry and aggressive towards Ms L after they had been to a party.  He was intoxicated.  He locked Ms L in his house and refused to let her leave, physically restraining her when she attempted to escape, and ignoring the fact that she was distressed and crying.  At one stage he held a knife close to her face and threatened to kill her if she tried to leave.  He then sexually penetrated Ms L without her consent on five occasions, four times in the bedroom and once in the shower.  The bedroom incidents involved sexual intercourse while Ms L was screaming for help.  On two occasions, the respondent grabbed Ms L by the throat.  On the first occasion, he did so until she had difficulty breathing and passed out.  On another occasion he put a pillow over her face to stifle her screams, making it difficult for her to breath.  The last act of sexual penetration included an act of degradation and humiliation.

   The judge who sentenced the respondent for the 2011 offences, Deane QC DCJ, noted that it was not only a humiliating experience for Ms L, but an 'utterly terrifying experience', and that her terror and distress were evident to a witness who saw Ms L fleeing from the scene, and to a police officer who dealt with Ms L shortly after.  Her Honour accepted that Ms L genuinely believed she was going to die.  The offending involved a gross breach of trust and had a devastating impact on Ms L's life.  Her Honour had regard to the fact that Ms L was very vulnerable as a foreign national in Australia on a visa, as she did not have an extensive network of family and friends.

   Apart from the serious offences, the respondent was also convicted of a common assault in 2005, for which he received a modest fine.

   The respondent has no other significant offending history that is relevant to this application.

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

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

   [3]The State of Western Australia v CA [No 3] [2023] WASC 144.

   [4] CA [No 2] [92] ‑ [97].

2. The procedural history was summarised by McGrath J in The State of Western Australia v CA [No 4],[5] which I respectfully adopt:

   On 15 April 2020, the State filed an application for orders under s 14 and s 18 of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). On 8 May 2020, Fiannaca J heard the preliminary hearing and determined that there were reasonable grounds for believing that a court might find that the respondent is a high risk serious offender pursuant to s 7 of the DSO Act. His Honour made an interim supervision order (ISO) pursuant to s 27A releasing the respondent into the community pending the final determination of the application.

   Whilst subject to the ISO, the respondent committed two breaches contrary to s 80 of the HRSO Act.  One breach involved undisclosed consensual sexual intercourse with an adult female.  Consequently, his parole was suspended on 2 July 2021. The respondent returned to custody.  

   On 15 October 2021, Fiannaca J heard the final hearing and determined that the respondent was a high risk serious offender and that he should be released on a supervision order.  Therefore, the respondent commenced living in the community subject to the stringent conditions of the supervision order.  

   Between 15 October 2021 and 13 March 2022, the respondent was charged with offences of contravening his supervision order contrary to s 80 of the HRSO Act.  The contraventions comprised the removal of his GPS monitoring device on 13 March 2022, causing damage to the device, and further being involved in a road traffic collision some 23 km outside of his designated inclusion zone, and returning a positive urinalysis test to amphetamines.  On 9 May 2022, the respondent was sentenced to a total effective sentence of 12 months immediate imprisonment.  The respondent was made eligible for parole.  

   Subsequently, the State commenced contravention proceedings.  

   On 3 March 2023, Fiannaca J determined the contravention proceedings.  His Honour ordered that the respondent be released pursuant to an amended supervision order.  On 28 March 2023, the respondent was released from custody.

   [5] The State of Western Australia v CA [No 4] [2024] WASC 28 [3] ‑ [8] (citations omitted).

3. The State made this application on 6 February 2024.  On 7 February 2024, McGrath J made orders for reports to be produced, and ordered that the respondent be detained in custody until the final determination of the application, pursuant to s 56(2)(b) of the Act.

Evidence adduced at the contravention hearing

1. Pursuant to s 84 of the Act, a court hearing an application pursuant to s 55 of the Act is required to hear admissible evidence called by the State and, if the respondent elects to adduce evidence, evidence called by the respondent. The ordinary rules of evidence apply, as modified by s 84(5), which make certain additional material admissible.

2. The State produced a Book of Materials comprised of three volumes,[6] containing the criminal history of the respondent, statements of material facts and transcripts relating to the contravention offences, the respondent's recent custodial history, reports prepared for the original restriction order hearing, and reports prepared for this contravention hearing, specifically:

   (1)Forensic Psychological Intervention Team End of Treatment Report of Ms Hamlett‑Waller, dated 23 May 2024;

   (2)the report of Dr Tara Yewers, Counselling Psychologist, dated 30 May 2024;

   (3)HRSO Treatment Progress Report of Chantal Spiccia, Counselling Psychology Registrar, dated 7 June 2024;

   (4)Performance Report of Julie Dabala, Senior Community Corrections Officer, dated 12 June 2024; and

   (5)Desktop Spatial Analysis dated 20 June 2024.

   [6] Exhibit 1, Book of Materials for the Contravention Proceedings on 20 June 2024 (Book of Materials).  

3. In written submissions and at the hearing, the State indicated that certain parts of the Books of Material were not relied upon,[7] and I have not taken any of those materials into account.

   [7] ts 426.

4. At the hearing on 20 June 2024, the State called Dr Tara Yewers, Chantal Spiccia and Julie Dabala to give evidence at the hearing, and they were cross‑examined. 

5. After the evidence was heard, an adjournment was granted to the respondent.  Orders were made for additional reports to be provided.  On resumption of the proceedings on 31 October 2024, the State adduced the following reports in volume 4 of the Book of Materials:[8]

   (1)Psychiatric report of Dr Gosia Wojnarowska dated 26 August 2024, and addendum dated 27 September 2024;

   (2)Supplementary report of Dr Tara Yewers dated 10 October 2024;

   (3)Addendum Treatment Progress Report of Chantal Spiccia dated 10 October 2024; and

   (4)Updated Performance Report of Julie Dabala dated 18 October 2024.

   [8] Exhibit 3 on the restriction order hearing dated 31 October 2024.

6. The accused elected not to give evidence and did not adduce any evidence on his behalf.

Alleged contravention offences

1. Since his release to the SO on 28 March 2023, the respondent has been charged with five contraventions of the SO pursuant to s 80(1) of the Act.

Contravention one (1449/2023)

1. Condition 29 of the SO states 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.[9]

   [9] Order of Fiannaca J dated 28 March 2023, Annexure A.

2. On 6 April 2023, the respondent provided a urinalysis sample which tested positive to amphetamine and methylamphetamine.[10]  On 14 April 2023, the respondent pleaded guilty to the offence and received a fine of $750.[11] 

   [10] Book of Materials, Vol 3, 675.

   [11] Book of Materials, Vol 2, 489 ‑ 490.

3. The respondent gave no explanation for the offending.[12]

Contravention two (4880/2023)

[12] Book of Materials, Vol 2, 493 ‑ 498.

1. On 10 November 2023 the respondent provided a urinalysis sample which tested positive to amphetamine and methylamphetamine.[13]

   [13] Book of Materials, Vol 3, 677.

2. On 16 November 2023, the respondent pleaded guilty to the charge and received a fine of $3,600.  By way of explanation for the offence, it was indicated that a female relative called the respondent for help, but the respondent was refused permission to go and see her, and the relative subsequently committed an act of self‑harm and sent him photographs of it.[14]

   [14] Book of Materials, Vol 2, 499 ‑ 510.

3. The respondent later appears to have told Ms Hamlett‑Waller, his counselling psychologist, and Ms Spiccia, from the Forensic Psychological Assessment Team, that the woman involved was a close friend's daughter.[15]  Dr Yewers reported that the respondent said that his longstanding friend, who he considers to be a sister, told him that her daughter had been hospitalised due to self‑harm.  He said he was very upset and struggled to come to terms with the fact that he was not told, so he approached a friend for drugs.[16]

   [15] Book of Materials, Vol 3, 663, 691.

   [16] Book of Materials, Vol 3, 710.

4. Departmental records, however, record that, when questioned about his drug use on 17 November 2023, he admitted to using methylamphetamine on 6 and 14 November 2023 to calm his anxiety and emotional state, and that he was scared all the time, thinking police could arrest him at any time.[17]

Contravention three (64733/2023)

[17] Book of Materials, Vol 3, 742 ‑ 743.

1. On 20 December 2023, the respondent provided a urinalysis sample which tested positive to amphetamine and methylamphetamine.[18]

   [18] Book of Materials, Vol 3, 679.

2. On 15 January 2024, the respondent pleaded guilty to the charge and received a fine of $750.  It was submitted to the learned magistrate that the respondent was experiencing some family stressors at the time.[19]

Contravention four (358/2024)

[19] Book of Materials, Vol 2, 511 ‑ 520.

1. Condition 10 of the SO required the respondent to '… comply with the lawful orders and directions of your CCO'.[20]

   [20] Order of Fiannaca J dated 28 March 2023, Annexure A.

2. Following his release from custody on 15 January 2024, the respondent was placed into temporary emergency accommodation by Community Corrections.  On 16 January 2024, the respondent was served with a written lawful instruction by Community Corrections which included an instruction that he was not to have any visitors in his room or at the property.

3. On 17 January 2024, the police conducted a curfew check on the respondent.  Police identified property belonging to the respondent's partner at the address.  While police were in the unit, the respondent's partner began knocking on the bedroom window.

4. The respondent pleaded guilty to the charge and received a fine of $350.[21]

Contravention five (448/2024)

[21] Book of Materials, Vol 2, 522 ‑ 525.

1. On 24 January 2024, a curfew check was conducted on the accused at his emergency accommodation.  On searching the bedroom, police located the respondent's partner hiding beside the bed.

2. The respondent pleaded guilty to the offence and received a fine of $200.[22]  He later explained to Ms Spiccia that he had offered his partner a shower and time together as she was experiencing pregnancy complications, and that he was confused by the lawful directions relating to her.[23]

Contraventions without charge

[22] Book of Materials, Vol 2, 529 ‑ 536.

[23] Book of Materials, Vol 3, 691.

1. The respondent was also alleged to have contravened the conditions of the SO by:

   (1)on 21 April 2023, having an encrypted messaging application on his mobile phone, explained by him as using an old mobile phone, and not being permitted to delete information;[24]

   (2)on 27 July 2023, returning home 32 minutes after the commencement of his curfew;[25]

   (3)on 14 September 2023, returning home 4 minutes after his curfew commenced;[26] and

   (4)on 14 December 2023, returning home 23 minutes after his curfew commenced.[27]

   [24] Book of Materials, Vol 3, 691.

   [25] Book of Materials, Vol 3, 658.

   [26] Book of Materials, Vol 3, 659.

   [27] Book of Materials, Vol 3, 660.

2. The respondent explained the curfew breaches as resulting from him being stuck in traffic, losing his phone at the beach and his car breaking down, and said on each occasion he had called Corrections to advise them.[28] 

   [28] Book of Materials, Vol 3, 691.

3. The respondent was not charged in respect of these alleged contraventions, although in the majority of cases he was issued with a written warning letter.[29]

   [29] Book of Materials, Vol 3, 657 ‑ 660.

Has the respondent contravened the supervision order as alleged?

1. The respondent pleaded guilty to all five charges of contravening the SO.  In those circumstances, I am satisfied on the balance of probabilities that he has contravened the SO.  It is unnecessary to finally decide whether the respondent also committed contraventions in the case of those matters where he was not charged. 

Statutory framework and legal principles

1. The objects of the Act are:

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

   (b)to provide for continuing control, care or treatment of high risk serious offenders.[30]

   [30] HRSO Act s 8.

2. The jurisprudence established in respect of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) is relevant in construing and applying the Act, with necessary adaptation.[31]

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

3. The powers conferred by the Act are not to be exercised for the purpose of imposing additional punishment on the offender, but rather for the ultimate purpose of protecting the community.[32]

   [32] Garlett v The State of Western Australia [2022] HCA 30 [55] ‑ [56].

4. If a respondent is brought before the Supreme Court under a warrant under s 51(3) of the Act, the State may make an application for an order under s 55 of the Act.[33]

   [33] HRSO Act s 53.

5. On such an application, if the court is satisfied on the balance of probabilities that the offender has contravened, is contravening, or is likely to contravene a condition of a supervision order, the court must:

   (a)rescind the supervision order and make a continuing detention order; or

   (b)subject to s 29, make an order amending the conditions and/or extending the period for which the offender is subject to the supervision order; or

   (c)subject to s 29, make an order affirming the supervision order without amendment or extension.[34]

   [34] HRSO Act s 55(2).

6. It is to be assumed that the respondent remains a high risk serious offender; the court is not required to make that determination again.[35]

   [35] CA [No 3] [28].

7. In deciding which order to make, the paramount consideration is to be the need to ensure adequate protection of the community.[36]

   [36] HRSO Act s 55(3).

8. A continuing detention order is an order that the offender be detained in custody for an indefinite term for control, care or treatment.[37]  A supervision order is an order that the offender, when not in custody, is to be subject to stated conditions that the court considers to be appropriate in accordance with s 30 of the Act.[38]

   [37] HRSO Act s 3, s 26(1). 

   [38] HRSO Act s 3, s 27(1). 

9. The court cannot release an offender on a supervision order unless satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order, the onus of establishing which is on the offender.[39]

   [39] HRSO Act s 29, s 55.

10. The standard conditions of a supervision order are set out in s 30 of the Act and include the requirement that the offender not commit a serious offence during the period of the order and that he comply with any reasonable direction of the community corrections officer.[40]

    [40] HRSO Act s 30. 

1. In Director of Public Prosecutions for Western Australia v Hart,[41] Fiannaca J observed that, in determining whether an offender 'will substantially comply with the standard conditions of the order':

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

   [41] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [52(6)].

2. Even if the court is satisfied that the offender will substantially comply with the standard conditions of a supervision order, the court must not release the offender unless satisfied that a supervision order will ensure an adequate degree of protection to the community.[42]

   [42] The State of Western Australia v ACJ [2021] WASC 219 [38].

Reports

Psychological Report of Dr Tara Yewers dated 30 May 2024

1. Dr Yewers interviewed the respondent on 16 May 2024, having already provided a report for the respondent's previous hearing in March 2023.[43]  She also consulted with members of the Community Offending Monitoring Unit (COMU), Ms Spiccia from the Forensic Psychological Assessment Team, and Adult Community Corrections (ACC) staff and had access to the Book of Materials and Ms Hamlett‑Waller's reports.[44]  

   [43] Book of Materials, Vol 2, 602 ‑ 649.

   [44] Book of Materials, Vol 3, 698 ‑ 699.

2. Dr Yewers reported that the respondent was polite and cooperative, although at times verbose and requiring redirection to stay on topic.[45]

   [45] Book of Materials, Vol 3, 699.

3. The respondent told Dr Yewers he had fallen out with his father, and his familial supports were now largely non‑existent, although he was open to resolving issues with some family members in the future.  Socially, the respondent claimed to have terminated his relationships with most of his friends due to their involvement in drug use.[46]

   [46] Book of Materials, Vol 3, 700.

4. In relation to the respondent's present relationship, he met his present partner (Ms KM), whom he knew from school, in November 2023.  He told Dr Yewers the relationship 'felt right' and he and Ms KM are engaged to be married in May 2025.  Ms KM is a survivor of previous family violence.  She occasionally drinks alcohol and has a history of illicit drug use.  While she was said to have abstained for 13 years, she lapsed in January 2024, coinciding with the respondent's return to custody.[47]

   [47] Book of Materials, Vol 3, 702.

5. Ms KM is the mother of five children, with the three youngest aged 8, 9 and 14, although she does not presently have custody of them due to her drug use.  She has been diagnosed with bipolar disorder and mild autism.  The respondent has reported that he feels equipped to help Ms KM with her emotional dysregulation when it occurs, 'due to his readings about bipolar disorder and knowledge of cognitive behavioural techniques'.[48]

   [48] Book of Materials, Vol 3, 702.

6. Dr Yewers indicated that she had been provided with reports that Ms KM had threatened to self‑harm on multiple occasions in the presence of police, was violent and threatening to ACC staff, police, and workers at the respondent's accommodation, and has been charged with smashing a window at that accommodation.  The respondent said that Ms KM smashed the window in order to get her belongings back after he was arrested.[49]  Ms KM has also punched doors at the local ACC centre.[50]

   [49] Book of Materials, Vol 3, 711.

   [50] Book of Materials, Vol 3, 702 ‑ 703.

7. In his interview, the respondent told Dr Yewers that he had not used illicit substances since December 2023, notwithstanding that he had been subject to significant stressors since that time.[51]

   [51] Book of Materials, Vol 3, 703 ‑ 704.

8. Dr Yewers administered the Depression, Anxiety and Stress Scales (DASS‑21), a screening tool for negative emotional states of depression, anxiety and stress over the last week.  The results were consistent with the respondent's self‑report, falling in the 'mild' range for anxiety and in the 'normal' range for depression and stress.[52]

   [52] Book of Materials, Vol 3, 704.

9. At the time of his interview with Dr Yewers, the respondent had resumed taking antidepressant medication, and said he intended to continue.  He commented to Dr Yewers the antilibidinal effect would be seen favourably by the court,[53] although in actuality, the particular antidepressant he was then taking does not have such an effect.[54]

   [53] Book of Materials, Vol 3, 704.

   [54] ts 465.

10. Dr Yewers considered the respondent's history of self‑harm, and his most recent suicide attempt in March 2024.  The respondent told Dr Yewers that his most recent attempt occurred in the context of his 'very low' mood and 'hopelessness relating to KM's relapse to drug use, his ongoing legal matters, and reading his legal documents and feeling misrepresented'.[55]  He said he did not disclose his suicidal thoughts to anyone because he did not want to be placed in a 'safe cell' and he refused medication in the week before because he was concerned about fertility issues and did not think he required them.[56]

    [55] Book of Materials, Vol 3, 705.

    [56] Book of Materials, Vol 3, 705.

11. The respondent continued to explain that he had not obtained pharmacological treatment for his Attention Deficit/Hyperactivity Disorder (ADHD) either due to cost or on the basis that he does not require assistance with his symptoms.[57]

    [57] Book of Materials, Vol 3, 705.

12. Dr Yewers was informed by the respondent that he felt 'thwarted' by the restrictions placed on him, and identified lengthy delays by CCOs in enacting decisions as a source of frustration for him.[58] 

    [58] Book of Materials, Vol 3, 715.

13. The respondent assessed his risk of sexual and violent recidivism as 'negligible'.  He claimed he would not reoffend sexually because he is aware of the trauma he would cause to any victim.  Further, he claims that given he has not had alcohol since 2011 and has no interest in drinking, he is not at risk of using violence.[59] 

    [59] Book of Materials, Vol 3, 719.

14. The respondent also considered that he would not use drugs again because of 'the angst he experienced in witnessing Ms KM's recent relapse and the consequences that his own relapses have caused him'.  He was, however, able to list various supports he intended to utilise if released.[60]

    [60] Book of Materials, Vol 3, 719.

15. In Dr Yewers' opinion, the respondent's performance on the SO since his release in March 2023 demonstrated poor coping in the face of distress, a willingness to disregard the SO and evidence of not taking responsibility for his behaviour and decisions and minimising culpability by blaming others.[61]  Dr Yewers considered that the respondent's current approach to the SO was largely unchanged.[62] 

    [61] Book of Materials, Vol 3, 719 ‑ 720.

    [62] Book of Materials, Vol 3, 719 ‑ 720.

16. Dr Yewers expressed concern and the need for caution in relation to the respondent's relationship with Ms KM, which has similar themes to previous relationships, but which the respondent does not appear to recognise.  Further, the respondent has not demonstrated he has the skills to address complex relationship issues.[63]

    [63] Book of Materials, Vol 3, 720; ts 430.

17. In Dr Yewers' opinion, the respondent continues to experience challenges around maintaining his emotional regulation and acting impulsively, despite substantial targeted treatment.  While he is able to reflect and apply learnings when stable and well‑regulated, under duress he returns to concrete thinking styles and then acts impulsively and ineffectually.  Further, his grievance style of thinking promotes externalisation of responsibility for his actions and plight.  These traits impact his compliance with the conditions of the SO.[64]  Further, Dr Yewers stated it was possible that ADHD may contribute to the respondent's difficulties with compliance.[65]

    [64] Book of Materials, Vol 3, 720, ts 430.

    [65] ts 431.

18. The persistence of these traits despite such substantial treatment led Dr Yewers to recommend a psychiatric evaluation to clarify the respondent's diagnoses and to advise on pharmacological treatment if indicated.[66]

Risk assessment tools

Static‑99R

[66] Book of Materials, Vol 3, 720 ‑ 721.

1. The Static‑99R is an actuarial tool that is intended to position offenders in terms of their relative degree for risk for sexual recidivism based on commonly available demographic and criminal history information that has been found to correlate with sexual recidivism in adult male sex offenders. 

2. Dr Yewers applied the Static‑99R, and the respondent's score was 8, placing him in the Risk Level IVb category (Well Above Average Risk) for being charged and convicted of another sexual offence.  In order to use the Static‑99R to estimate recidivism, it was necessary to select the reference group that the respondent most closely resembled.  Dr Yewers used the Violence Risk Scale - Sexual Offender Version to assist in this selection, resulting in the high risk/high need group being selected as the reference group for the respondent.[67] 

   [67] Book of Materials, Vol 3, 722 ‑ 723.

3. On this basis, the respondent's score of 8 equates to a five year sexual recidivism rate of 36.3%, with a confidence interval of 28.8% to 44.5%.  A recidivism rate of between 30% and 44% means that, out of 100 sexual offenders with the same risk score, between 30 and 44 would be charged or convicted of a new sexual offence after five years in the community (and between 56 and 70 would not be).[68]

Violence Risk Scale - Sex Offender Version (VRS-SO)

[68] Book of Materials, Vol 3, 722 ‑ 723.

1. The VRS‑SO uses static and dynamic risk predictors to evaluate the future risk of sexual recidivism, to inform the delivery of sexual offender treatment, and to assess change in risk following treatment and/or over time.  It comprises seven static (historical) and 17 dynamic (changeable) variables which are rated to determine the extent that they are associated with the individual's sexual offending.[69]

   [69] Book of Materials, Vol 3, 722 ‑ 723.

2. The dynamic items of the VRS‑SO scale can be grouped into three factors:

   (a)Sexual Deviance, reflecting deviant sexual interests, lifestyle and preoccupations;

   (b)Criminality, comprising items that reflect a generalised antisocial lifestyle or orientation; and

   (c)Treatment Responsivity, reflecting distorted attitudes and beliefs supportive of sexual offending and resistance to change that would likely contribute to noncompliance for sex offender treatment programs.[70]

   [70] Book of Materials, Vol 3, 724.

3. There are two additional items, Emotional Control and Intimacy Deficits, which do not fall within the three factors above but are nonetheless associated with sexual offending.[71]

   [71] Book of Materials, Vol 3, 724.

4. The respondent has previously held cognitive distortions relating to sexual entitlement and women being malevolent, as well as justifications for his offending.  Dr Yewers considered that the respondent's distorted thinking around these particular areas appears to have abated, but he continues to display indications of similar thinking in other risk relevant areas, such as drug use and relationships.[72]

   [72] Book of Materials, Vol 3, 725.

5. Further, the respondent's interpersonal interactions continue to involve passive‑aggressive communication to express his negative feelings, manifesting in supervision by disengaging and being obstructive when displeased, presenting as sullen and ruminative and frequently complaining he is being victimised.[73] 

   [73] Book of Materials, Vol 3, 726.

6. The pattern previously displayed by the respondent of a build‑up of negative emotionality due to an inability to actively address problems and/or implement effective coping strategies has continued to result in risk relevant behaviours such as drug use.[74]

   [74] Book of Materials, Vol 3, 726.

7. According to Dr Yewers, the respondent has retrospective insight into his offending and what precipitates it. However, he has been unable to reflect on or acknowledge current circumstances, such as aspects of his relationship, which may increase his risk,[75] and he lacks strategies to prevent emotional decompensation.[76] He continues to exhibit impulsivity in his contraventions, failing to properly consider the consequences of his conduct.[77]  He lacks community support and has no suitable accommodation or employment.[78]

   [75] Book of Materials, Vol 3, 726, 729.

   [76] Book of Materials, Vol 3, 727.

   [77] Book of Materials, Vol 3, 728.

   [78] Book of Materials, Vol 3, 727.

8. The respondent's score for the dynamic VRS‑SO variables was 30 out of a possible 51, placing him in the Risk Level IVa (Above Average Risk) category.  His score was higher than 81% of the normative sample.  His main dynamic risk factors fall under the Criminality and Treatment Responsivity factors, although Intimacy Deficits and Emotional Control are also criminogenic for the respondent.[79]

   [79] Book of Materials, Vol 3, 729.

9. This outcome is to be contrasted with the outcome from the previous application of the VRS‑SO by Dr Yewers as set out in her report dated 1 January 2023, in which the respondent's score was 22 out of a possible 51, which was higher than almost 46% of the normative sample.  The same factors were identified as factors relevant to the respondent's risk, but were assessed in a number of cases as being present to a less significant degree.[80]

Violence Risk Scale (VRS)

[80] Book of Materials, Vol 2, 639.

1. Dr Yewers assessed the respondent's risk of violence recidivism using the VRS.  The VRS operates in the same manner as the VRS‑SO but is used to evaluate future risk of violence, identify targets for treatment, and to assess change in risk following treatment and/or over time.[81]  The VRS defines violence in a broader manner than the Act, encompassing violence which would not constitute a serious offence under the Act.[82]

   [81] Book of Materials, Vol 3, 729 ‑ 730.

   [82] Book of Materials, Vol 3, 730.

2. The respondent's sporadic employment history is indicative of increased risk,[83] as is his continued association with antisocial peers, including his relationship with his partner.[84]  He continues to have cognitive distortions, such as externalising blame, discounting concerns about his current relationship, and reverting to rigid and inflexible thinking.[85] 

   [83] Book of Materials, Vol 3, 731.

   [84] Book of Materials, Vol 3, 731 ‑ 732, 733.

   [85] Book of Materials, Vol 3, 734.

3. As with the VRS‑SO, the respondent's ratings for Emotional Control, Substance Abuse, Relationship Instability, Impulsivity, Community Support, Release to High Risk Situations, Cognitive Distortions and Violence Cycle were considered significant risk factors for the respondent, attracting the highest scores.  Other factors rated as partially present included Interpersonal Aggression, Compliance with Community Supervision, Insight into Violence, Criminal Peers and Work Ethic.[86]

   [86] Book of Materials, Vol 3, 735.

4. The respondent's total VRS score was 48, placing him in the Risk Category III (Average Risk) for any violent recidivism.  His score was higher than 57.3% of violent offenders in the normative group.  Offenders with this score have a three year rate of sexual recidivism of 21.6% with a 95% confidence interval of 16.9% to 27.1%.  A recidivism rate between 17% and 27% means that out of 100 people in this group with the same risk score, between 17 and 27 would be charged or convicted of a violent offence after three years in the community (and between 73 and 83 would not).  The estimated five year recidivism rate is 29.2% with a 95% confidence interval of 23.6% to 35.5%.[87]

Assessment of risk

[87] Book of Materials, Vol 3, 734 ‑ 735.

1. As Dr Yewers points out, the respondent's dynamic risk in relation to both sexual recidivism and violent recidivism has increased since the assessment for the 2023 contravention hearing, impacted by increased applicability of factors including cognitive distortions, insight, release to high risk situations, community support, and criminal peers.[88]

   [88] Book of Materials, Vol 3, 735; ts 432.

2. While the respondent has not committed any serious violent offence or sexual offence during the period he was subject to the supervision order, the respondent has not yet been in a position where he has been residing with a person with whom he is in a relationship.  Even so, he has reverted to drug use, which is one of his old, maladaptive coping strategies.[89]

   [89] ts 435.

3. The most likely risk scenario is, in Dr Yewers' opinion, one in which the respondent commits a sexual or violent offence against an intimate partner, consequent upon stress accumulating from a relationship issue he does not have the skills to cope with.  Intoxication would increase his dysregulation and 'weaken his tenuous coping skills and problem solving capacity'.  The risk of harm may be significant, particularly if the respondent has access to a weapon, or strangles his victim.[90]

   [90] Book of Materials, Vol 3, 736.

4. Dr Yewers considers the respondent to be underprepared for release on his SO, given that he does not have viable accommodation or confirmed employment, lacks depth of social support, is unable to articulate a cogent risk management plan or to reflect on potential relationship issues.[91]

   [91] Book of Materials, Vol 3, 736.

5. Further, Dr Yewers expressed significant concerns with the proposal for the respondent to reside with his partner, Ms KM, stating that the newly formed relationship will potentially be stressful for the respondent, and he has not yet demonstrated that he has the capacity or ability to navigate a complex relationship.[92] 

   [92] ts 430, 467.

6. In Dr Yewers' opinion, the respondent is at high risk of committing a serious offence if not subject to a restriction order.  Should the SO be permitted to continue, it is her view that it should be in force for a further three years.[93]

Forensic Psychological Intervention Team End of Treatment Report dated 23 May 2024

[93] Book of Materials, Vol 3, 737.

1. The respondent has been treated over the course of three and a half years by the Forensic Psychological Intervention Team (FPIT).  Ms Hamlett‑Waller, counselling psychologist, has been the respondent's primary point of contact with the FPIT. 

2. Since the respondent was remanded in custody on 7 February 2024, he has participated in a further 22 sessions with Ms Hamlett‑Waller, sometimes by video conference, and sometimes by telephone (current intervention period).[94] 

   [94] Book of Materials, Vol 3, 661.

3. Ms Hamlett‑Waller reported that the respondent's tendency to be verbose and tangential at times remained consistent with past interactions.  However, his mood appeared to vary; sometimes he presented as stable in mood while on other occasions he presented as agitated and despondent.  Overall, Ms Hamlett‑Waller assessed his mood and presentation as having deteriorated compared to previous treatment periods.[95]

   [95] Book of Materials, Vol 3, 661.

4. Ms Hamlett‑Waller expressed the view that the respondent's engagement during the current intervention period varied, and at times focussed on situational stressors rather than dynamic criminogenic needs.[96]  The respondent continues to express the view that he is not being managed fairly and his requests for his management to be adjusted are disregarded.[97]

   [96] Book of Materials, Vol 3, 662.

   [97] Book of Materials, Vol 3, 662 ‑ 663.

5. At one stage, due to the respondent's 'return to rigid thinking' and the 'minimal gains seemingly being made', termination of intervention was raised, but the respondent indicated he wished to continue, and there was an 'attitudinal shift' for some time after this.[98]

   [98] Book of Materials, Vol 3, 663.

6. In November 2023, the respondent reported difficulties in coping with the recent suicide attempt of a friend's daughter, and informed that he had lapsed with methylamphetamine use.  He made comments, which he later denied, suggestive of active suicidal ideation and there were concerns of self‑harm if he were arrested due to this methylamphetamine use.  He became distressed when informed that supervising staff needed to be notified, and requested they not be notified, and sought to retract some of his statements.  He referred to a lack of trust of 'Corrections'.[99]

   [99] Book of Materials, Vol 3, 663.

1. The matter was reported to the respondent's supervisors, but thereafter he indicated he found it too difficult to engage effectively in counselling as the information was not confidential.  Given he had commenced substance abuse counselling, the intervention by FPIT was suspended.[100]

   [100] Book of Materials, Vol 3, 663.

2. Since his remand in custody, the respondent reported a willingness to re‑engage and three sessions were proposed and undertaken by the respondent.[101]

   [101] Book of Materials, Vol 3, 663.

3. Prior to his release in March 2023, the respondent acknowledged that ruminating on the restrictions imposed by the SO was detrimental to his well‑being and indicated he would endeavour to change his attitude.  However, when he was released, and there was no reduction to the restrictions, he again reported difficulties with his mood and self‑regulation.  While he had previously relied on activities such as hunting and fishing to regulate his mood, he was restricted from engaging in them by the SO.  Regrettably, no solution has been arrived at to facilitate water‑based activities.[102]

   [102] Book of Materials, Vol 3, 663 ‑ 664.

4. The respondent has frequently been encouraged to focus on activities he can undertake instead.  However, he appeared to continue to ruminate and, on occasion, returned to 'rigid thoughts regarding his current situation'.[103]

   [103] Book of Materials, Vol 3, 664.

5. The respondent denied using methylamphetamine shortly after his release in 2023.  He suggested his sample may have been tampered with.  He admitted using methylamphetamine in November 2023, and attributed it to his friend's daughter self‑harming.  He was referred to the local Alcohol and Drug Service for targeted intervention, but he again used methylamphetamine in December 2023.  He attributed that lapse to difficulties with his father, as well as a desire to self‑medicate for his symptoms of ADHD.[104]

   [104] Book of Materials, Vol 3, 664.

6. The respondent had previously sought to explore pharmacological options for the treatment of ADHD, but reported that he had been told by the local adult mental health service that they were unable to assist.[105]  It was recommended that the respondent explore alternatives with his local general practitioner, but he advised he did not have the funds to seek private services.  He also claimed he was managing his symptoms appropriately and did not require behavioural approaches.  He repeated this when the issue was revisited every few weeks.  It was only after his lapse in November 2023 that the respondent demonstrated a willingness to discuss strategies for managing his ADHD.  However, before they could be explored in more detail, he was remanded in custody.[106]

   [105] Book of Materials, Vol 3, 664.

   [106] Book of Materials, Vol 3, 664 ‑ 665.

7. Ms Hamlett‑Waller continued to monitor the respondent's attitude towards women.  The respondent indicated that he believed that there would always be conflict in any relationship with female supervising staff, due to the nature of his offending and the fact that he believed women in general would hold him in contempt accordingly.  He was able to demonstrate flexibility with these beliefs when in a stable emotional state.  However, he appeared to maintain a view, at times, that women were malevolent.  Again while he was open to challenge, Ms Hamlett‑Waller expressed a concern that when the respondent is in heightened distress, 'he may again return to his previous beliefs of women deliberately trying to psychologically harm or humiliate him, which has been a factor in past offending'.[107]

   [107] Book of Materials, Vol 3, 666.

8. Similarly, Ms Hamlett‑Waller was of the view that there were aspects of the respondent's response to supervision which were 'suggestive of ongoing offence-paralleling behaviour'.[108]  For example, in response to what he perceived as unfair treatment, the respondent resolved to engage passively in supervision.  He also continued to create pressure in the supervision relationship through 'repeatedly asking the same requests and displaying negative emotionality when denied'.[109]  When encouraged, the respondent was able to perspective take, and ultimately advised that he believed positive engagement with staff was in his best interests.  While he was able to demonstrate various gains, he appeared to revert to previous patterns of engagement after a destabilising event, such as being arrested.[110]

   [108] Book of Materials, Vol 3, 667.

   [109] Book of Materials, Vol 3, 667.

   [110] Book of Materials, Vol 3, 667.

9. While the respondent appeared to have developed some insight into problematic past patterns with friends (such as feeling responsible for the well‑being of others and becoming overwhelmed), concerns remained, having regard to the reason for his November 2023 substance use relapse, and the failure to implement boundaries with the person who supplied him the methylamphetamine.[111]  He has, however, demonstrated an ability to utilise skills regarding emotional regulation and communication with Community Corrections staff on occasion.[112]

   [111] Book of Materials, Vol 3, 666.

   [112] Book of Materials, Vol 3, 667.

10. Ms Hamlett‑Waller noted the respondent's limited supports outside his family, as a result of which he was encouraged to contact the local prison chaplain, with whom he recalled years of positive interactions.  The respondent reported sporadic contact with him while in the community and when he was returned to custody.  While this is a beneficial relationship for the respondent, the breakdown in his familial relationships means that the respondent requires a wider network of informal supports.[113] 

    [113] Book of Materials, Vol 3, 666.

11. The respondent attended three sessions in March 2024.  Ms Hamlett‑Waller reported the respondent to be tearful on occasions, but noted his affect to be congruent with the topic of discussion, and he was able to compose himself.  He maintained he was not a risk to himself, and his demeanour raised no concerns.  On 26 March 2024, he said his mood had improved and he no longer wished to seek antidepressant medication, as had been discussed in the preceding two sessions.[114]

    [114] Book of Materials, Vol 3, 662.

12. Prior to forming his present relationship, the respondent identified a pattern of insecure and anxious attachment in which he became preoccupied with another and subsequently overwhelmed in the relationship.  As his current relationship has developed, the respondent appears to have been 'reenacting past maladaptive patterns', including rapid intensity and commitment in the relationship, appearing to idolise his partner, reporting his happiness as being contingent on hers, and suggesting that his only needs were Ms KM's needs and happiness.  However, the respondent disputed that there was any reason for concern.[115]  He claimed he had been setting boundaries with Ms KM, although acknowledged that she continued to use substances and self‑harm, which he said caused him distress.[116]

    [115] Book of Materials, Vol 3, 668.

    [116] Book of Materials, Vol 3, 668.

13. Overall, Ms Hamlett‑Waller reported that whilst the respondent was able to demonstrate an ability to retain an intellectual understanding of a variety of topics relating to his offending and treatment, and could identify factors related to his offending, he 'appeared unable to generalise his insights to his current situation at the time of ceasing intervention'.[117]  Further, despite the fact that much of his intervention focussed on emotional regulation and coping, he appeared to 'remain susceptible to psychological decompensation when under stress'.[118]  Further, he remains a chronic, though 'non-imminent' risk of suicide.[119]

    [117] Book of Materials, Vol 3, 669.

    [118] Book of Materials, Vol 3, 669.

    [119] Book of Materials, Vol 3, 669.

14. Due to the breakdown in the therapeutic relationship, apparently due to the lack of confidentiality, intervention had ceased at the time of Ms Hamlett‑Waller's report.  Ms Hamlett‑Waller suggested it might be beneficial for the respondent to engage with local agencies, and to address his criminogenic needs through agencies external to the Department of Justice.[120]

Forensic Psychological Assessment Team - Treatment Progress Report dated 7 June 2024

[120] Book of Materials, Vol 3, 669.

1. The report of Ms Chantal Spiccia dated 7 June 2024 has also been prepared.  For the purposes of her report, Ms Spiccia interviewed the respondent in late May 2024.  She also liaised with Dr Yewers and Ms Hamlett‑Waller, and considered their reports dated 30 May 2024 and 23 May 2024 respectively.  Ms Spiccia also had access to the first two volumes of the Book of Materials, and the Total Offender Management Solution (TOMS). 

2. The respondent told Ms Spiccia that some of his intervention sessions with Ms Hamlett‑Waller were helpful, while at other times he felt they were 'going in circles'.  The sessions assisted him to understand the physiological signs of his emotions, and to recognise early signs of emotional dysregulation, and to implement self‑management strategies.[121]

   [121] Book of Materials, Vol 3, 690 ‑ 691.

3. Contrary to what he had told Ms Hamlett‑Waller, the respondent told Ms Spiccia that his perception had shifted as to his ability to be honest in his sessions with Ms Hamlett‑Waller, and that he would be honest with Ms Hamlett‑Waller in the future to access the assistance he needs.  He accepted that he has outstanding treatment needs, particularly in relation to healthy relationship skills, and expressed a willingness to engage in other rehabilitation programs.[122]

   [122] Book of Materials, Vol 3, 691.

4. As to the contraventions, the respondent gave the explanations set out above.  He told Ms Spiccia the SO restricted him from engaging in employment with his father's business, and ocean‑based prosocial activities and he felt unfairly treated by Community Corrections staff.  This led to him feeling despondent, which was added to by his incarceration for the contraventions.[123]

   [123] Book of Materials, Vol 3, 691.

5. The respondent reported that he did not view himself as a risk of reoffending in a violent or a sexual manner.  He claimed that he would manage conflicts with others by staying calm, attempting to defuse the situation, and walking away.  He asserted he would never sexually reoffend, because of the shame he experiences regarding his past such offending, and his understanding as to the impact on victims.  Likewise he said his understanding of family and domestic violence would prevent him from engaging in abusive practices or coercive control behaviours.[124]

   [124] Book of Materials, Vol 3, 692.

6. The respondent has indicated that he was open to receiving a prescription for selective serotonin reuptake inhibitors (SSRIs) which can reduce libido.[125]  He claimed not to have consumed alcohol since his index offending in 2011, and expressed no interest in consuming alcohol in the future.[126] 

   [125] Book of Materials, Vol 3, 692.

   [126] Book of Materials, Vol 3, 692.

7. The respondent denied that methylamphetamine and illicit drug use contributed to his offending, but acknowledged that he would need to abstain from substance use under the SO.  He acknowledged he has, in the past, used substances to mask and avoid his emotions.[127]  However, he reported that more recently, he had experienced stressors and had not reverted to substance abuse in response, and identified an extensive network of personal and professional supports available to him if he experienced cravings or relapse.[128]

   [127] Book of Materials, Vol 3, 692.

   [128] Book of Materials, Vol 3, 692.

8. The respondent indicated that Ms KM had also had an illicit substance lapse and indicated that he would support her to address her issues, although he also indicated he could not be around substance use.[129]

   [129] Book of Materials, Vol 3, 692 ‑ 693.

9. The respondent acknowledged his previous relationship issues and said he understands the concerns which related to his newly formed relationship.  He explained that he has known Ms KM for 30 years and this relationship is different to his past relationships.  He reported he does not worry if Ms KM is engaging in infidelity, and he has put in place learned skills.  He claimed they do not argue but instead 'agree to disagree'.  He told Ms Spiccia that the relationship is not focussed on sex, and he does not see himself using sex as a coping mechanism or as a means to reconcile after a disagreement.[130]

   [130] Book of Materials, Vol 3, 693.

10. The respondent asserted he would abide by all conditions of the SO.  He claimed (as he has in the past) that he had adjusted his expectations regarding the restrictions of the SO, although he suggested that explanations for decisions and support from Community Corrections staff would help him to cope better.[131]

    [131] Book of Materials, Vol 3, 694.

11. Ultimately, Ms Spiccia was of the view that the respondent's outstanding treatment needs are in the areas of relationship stability/skills, emotional control, substance use, poor problem solving/help seeking skills, awareness of current high‑risk situations and appropriate risk management strategies, cognitive distortions regarding his contravention behaviours, and negative emotionality in relation to the SO.  His current release plans and support network are, in her view, 'under‑developed and insufficient to meet his needs'.[132]

    [132] Book of Materials, Vol 3, 695.

12. Ms Spiccia recommended that, if the respondent were to be made subject to a continuing detention order, he participate in the Pathways program, a group program designed to address alcohol and other drug use and offending behaviour.  This program, which takes between three and six months to complete, is not available to remand prisoners, which includes the respondent pending the resolution of these proceedings.[133]

    [133] ts 437 ‑ 438.

13. Ms Spiccia also recommended the respondent participate in the Solid Steps program, a drug rehabilitation program of nine to twelve months' duration.  This would likely only be available to the respondent if he were made subject to a continuing detention order.[134]

Addendum Treatment Progress Report of Ms Chantal Spiccia dated 10 October 2024

[134] ts 438 ‑ 439.

1. The respondent has not participated in any programs since the June hearing of this application.[135]

   [135] Book of Materials, Vol 4, 782 [7].

2. The respondent has expressed frustration with the justice system and his status as a high risk serious offender, has made numerous enquiries about getting married while incarcerated, and has appeared worried and expressed concerns for his partner's welfare.[136]

   [136] Book of Materials, Vol 4, 782 [6].

3. Ms Spiccia recommended that, rather than engaging in individual intervention in a custodial setting, the respondent should be encouraged to develop more robust risk management and release plans, including viable accommodation options.  She recommended that, if he were to be released in a regional location, individual psychological intervention should be through local community service providers.[137]

   [137] Book of Materials, Vol 4, 784 [15] ‑ [16].

4. In the event that a continuing detention order were made in respect of the respondent, he may be able to participate in a Pathways program in the first quarter of 2025.[138]

Adult Community Corrections Performance Report dated 12 June 2024 and Updated Performance Report dated 18 October 2024

[138] ts 469.

1. These reports were prepared by Ms Julie Dabala, Senior Community Corrections Officer (SCCO) with the COMU. 

2. Ms Dabala set out the history of the respondent's suicide attempt on 31 March 2024, which is consistent with the summary above.  She reported that on 18 April 2024, the respondent was removed from the At Risk Monitoring System and appeared to be 'travelling well emotionally' and not posing an acute discernible suicide risk.[139]

   [139] Book of Materials, Vol 3, 741.

3. The respondent's father is aware of the respondent's suicide attempt but maintains that he does not want contact with him.[140]

   [140] Book of Materials, Vol 3, 741.

4. In May and June 2024, the respondent encountered issues with Ms KM and her mental well‑being, and he appeared to feel responsibility for her emotional well‑being, and to exhibit what was described as a 'bit of a saviour complex'.[141]

   [141] Book of Materials, Vol 3, 741 ‑ 742.

5. On 11 June 2024, a drug swab of Ms KM during a non‑contact custody visit detected tetrahydrocannabinol.[142]

   [142] Book of Materials, Vol 3, 742.

6. The respondent's approach to supervision, as described by Ms Hamlett‑Waller and Ms Spiccia are confirmed in these reports.[143] 

   [143] Book of Materials, Vol 3, 742.

7. The respondent indicated an intention to access programmatic support services in Geraldton, and has been engaging with Desert Blue Connect since April 2024, in e‑visits.  This service is described as a service which works with men who use violence or abuse in their relationships, through counselling, behaviour change programs and referrals.[144]

   [144] Book of Materials, Vol 3, 750.

8. The respondent has expressed to Ms Dabala his view that Geraldton ACC staff were to blame for his contraventions, and indicated that, if he were again to be supervised by them, he may contravene again due to their mistreatment of him.[145]

Accommodation

[145] Book of Materials, Vol 4, 788.

1. As a result of the respondent returning a urinalysis result positive for methylamphetamines on 20 December 2023, the respondent was evicted from his father's home, and he is no longer able to return to that address.  At this stage, his relationship with his father appears to have broken down and no accommodation with him is available to the respondent.[146]

   [146] Book of Materials, Vol 3, 750.

2. On 4 June 2024, an accommodation assessment was undertaken, at which the accused's partner, Ms KM was present.  She confirmed she did not have custody of her three youngest children.  She claimed to be 60 days sober.  She also disclosed she had recently self‑harmed, which had required hospitalisation, due to the seriousness of her self‑harm and her mental instability.[147]

   [147] Book of Materials, Vol 3, 747.

3. Ms KM advised that she had spoken with the respondent about a safety plan should he offend against her, and suggested she would 'shake his ankle monitor so there is an alert'.[148]  However, in her evidence, Ms Dabala indicated that this would be ineffective.[149]

   [148] Book of Materials, Vol 3, 747.

   [149] ts 442.

4. Community Corrections has significant concerns with the proposal for the respondent and Ms KM residing together at present. 

5. An assessment has also taken place with the St ROB Foundation, although the respondent has expressed some ambivalence about residing there, due to restrictions it would impose on his ability to have Ms KM at the facility.[150]

   [150] Book of Materials, Vol 3, 748.

6. Ms Dabala spoke with Mr Alkins, the Managing Director of St ROB.[151]  Ms Dabala outlined previous issues between Mr Alkins and Community Corrections from a supervision perspective.[152]

   [151] Book of Materials, Vol 3, 748.

   [152] Book of Materials, Vol 3, 749.

7. Mr Alkins indicated that the respondent would not be permitted to reside at the Geraldton region facility, and accommodation in Perth with St ROB was available, but the respondent would not be permitted to have women in the house.[153] 

   [153] Book of Materials, Vol 3, 748.

8. An assessment of the Geraldton St ROB facility was made, and there were significant challenges associated with it, such that Community Corrections did not consider it suitable for the respondent if he were made subject to a supervision order.[154]  The Perth accommodation with St ROB had not been assessed for suitability for the respondent in the absence of his willingness to be accommodated there.[155]

   [154] Book of Materials, Vol 3. 748 ‑ 749.

   [155] ts 443.

9. Since that hearing, the respondent has been considered for referral to Uniting WA for accommodation.  However, he ultimately declined to participate in the program as he did not like its conditions.  He persistently continues to express his preference for residing with his partner.[156]  He would still be eligible for referral to Uniting WA if he chose to re‑engage.[157]

   [156] Book of Materials, Vol 4, 788.

   [157] ts 472.

1. Ms Dabala stated that should the respondent remain in custody on an interim detention order, enquiries into alternative accommodation options may be pursued at the respondent's request.[158]

Employment

[158] ts 445.

1. The respondent was undertaking employment with his father.  However, that has now been withdrawn.  If released, the respondent plans to prioritise seeking employment, with a local brickworks factory or, again through the St ROB Foundation.[159] However, the respondent has not spoken with the prospective employer at the brickworks,[160] and it appears any employment with the St ROB Foundation would be on an unpaid volunteer basis.[161]

Conduct during time in custody

[159] Book of Materials, Vol 3, 694.

[160] Book of Materials, Vol 3, 750.

[161] Book of Materials, Vol 3, 748.

1. The respondent has not been the subject of any charges during his time in custody.[162]  There have been three incidents which involve threats to commit, or the actual commission of, threats of self‑harm.[163] 

   [162] Book of Materials, Vol 2, 352; Vol 4, 790.

   [163] Book of Materials, Vol 2, 360, 368.

2. The most serious occurred on 31 March 2024, in which the respondent inflicted a serious cut to his wrist.[164]  The next day, he told a nurse he had been reaching out for months to get on medication to help him cope, and that he was worried about his partner, who has bipolar disorder.[165]  He later told the prison counsellor he feels he is being unfairly treated and has a grievance against Community Corrections.[166]

   [164] Book of Materials, Vol 2, 400.

   [165] Book of Materials, Vol 2, 461.

   [166] Book of Materials, Vol 2, 460.

3. According to Ms Spiccia, the respondent explained that he was experiencing despair and despondency following his contraventions, reincarceration, loss of his valued custodial employment, and not having contact with the local prison chaplain.  Since then, he has reflected on the impact of his deliberate self‑harm on his partner, and stated he will not self‑harm again.  He has also resumed antidepressant medication, writing and talking to trusted custodial officers.  However, he has not been prescribed any medication for his ADHD.[167]

   [167] Book of Materials, Vol 3, 688.

4. During his time in custody, the respondent has not been subject to any substance use tests. 

Psychiatric Report of Dr Gosia Wojnarowska dated 26 August 2024 and supplementary information dated 27 September 2024

1. Following Dr Yewers' recommendations and evidence at the June hearing, a psychiatric report was sought from Dr Gosia Wojnarowska, a consultant psychiatrist. 

2. In his interview with Dr Wojnarowska, the respondent appeared mildly anxious but was able to relax and rapport was established.[168]

   [168] Book of Materials, Vol 4, 766 [83].

3. The respondent identified his relationship with his father as a trigger for his relapse into illicit substance use.  He did not repeat his earlier claim that his November 2023 drug use was triggered by the attempted suicide of his friend's daughter.  He claimed that he was 'stressed and unhappy' at the times he used substances, which Dr Wojnarowska noted was inconsistent with an earlier statement that he had been 'happy and in love' since meeting his partner in October 2023.  He could not explain the inconsistency.[169]

   [169] Book of Materials, Vol 4, 764 [64], [67].

4. The respondent reported that, at the time of his return to custody on 23 January 2024, Ms KM was pregnant, but she miscarried after he was incarcerated.  Despite those difficulties, he said he had not relapsed in prison, although he claimed to have had opportunities to do so.  He described feeling hopeless as he had 'lost everything', and this contributed to his suicide attempt.  However, this feeling did not last long, as he and his partner were supporting each other.[170]

   [170] Book of Materials, Vol 4, 765 [71].

5. The respondent maintained that, if he were permitted to live with his partner, their mutual support would result in a reduced risk of relapse into drug use and therefore reoffending.  He was confident he would abstain from alcohol and drug use, and thus would not be a risk to the community.  He claimed this change had come about because he had found 'love'.  When reminded that he had relapsed during the relationship, he attributed it to the stressors associated with living with his father.  He did not regard his contraventions as particularly serious.[171]

   [171] Book of Materials, Vol 4, 765 ‑ 766 [74] ‑ [76].

6. In speaking with Dr Wojnarowska, the respondent said he did not perceive himself to be violent, although acknowledged that alcohol and drugs elicited violent behaviours in him at times.  He emphasised that he regards violence, particularly against a female, as unacceptable, and maintained he would not have offended had he not been intoxicated.[172]

   [172] Book of Materials, Vol 4, 766 [77], [79].

7. The respondent indicated he wanted to live with his partner in Geraldton or at the Arrowsmith Unit offered by St ROB.  He said he had declined engagement with Uniting WA because that only offered accommodation in Perth, which he did not want and regarded as high risk for him.[173]

   [173] Book of Materials, Vol 4, 766 [81].

8. Dr Wojnarowska did not identify any current psychiatric disorder in the respondent.  In her view, he did not fulfil the criteria for antisocial personality disorder because there was no evidence of conduct disorder during childhood, but antisocial traits are present.[174]

   [174] Book of Materials, Vol 4, 767 [87].

9. Dr Wojnarowska was unable to confirm a diagnosis of ADHD in the respondent, as the diagnosis of adult ADHD relies largely on self‑report.  In Dr Wojnarowska's view, there is no current clinical evidence of ADHD symptoms apart from the respondent's impulsivity, proneness to boredom, irritability and risk taking, which are also features of antisocial personality.[175]

   [175] Book of Materials, Vol 4, 775 [2].

10. Dr Wojnarowska was of the view that confirmation of ADHD would require lengthy and costly assessment, and even if diagnosis were confirmed, the treatment options which would be open to the respondent are limited, as he would not be able to access stimulant medications due to his history of drug abuse.[176]

Risk assessment tools

[176] Book of Materials, Vol 4, 776 [4].

1. Dr Wojnarowska used the following tools to assess the risk that the respondent would commit sexual violence in the future, and the steps which could be taken to minimise that risk.

Static-99R

1. The respondent received a score of 5, which was a reduction since his last assessment due to age.  This places him in the Above Average Risk category for reoffending.  Offenders in this category have a predicted five year recidivism rate of 18‑24.8%, and a ten year rate of 26.7‑37.9%.[177]

PCL-R

[177] Book of Materials, Vol 4, 769 [96] ‑ [97].

1. The respondent scored in the low range on the PCL‑R, and does not have many features of psychopathy.  Tendency to be manipulative was noted.  His score was consistent with his anti‑social personality traits.[178]

RSVP

[178] Book of Materials, Vol 4, 769 [98].

1. In the domain of sexual violence history, the risk factors of escalation of sexual violence, physical coercion in sexual violence and psychological coercion in sexual violence were present.  The risk factor chronicity of violence was partially present.[179]

   [179] Book of Materials, Vol 4, 769 ‑ 770 [99] ‑ [103].

2. In the psychological domain, the risk factor of problems with stress or coping was present, and the factors of problems with self‑awareness and problems resulting from child abuse were partially present.  However, the respondent did not minimise or deny his offending and does not present with attitudes which support or condone sexual violence.[180]

   [180] Book of Materials, Vol 4, 770 ‑ 771 [104] ‑ [108].

3. In the mental domain, the factors which were present were problems with substance use and, in Dr Wojnarowska's view, despite the respondent's denials, violent ideation may be a factor of relevance to the management of the respondent in the community.  The risk factor of suicidal ideation was partially present.[181]

   [181] Book of Materials, Vol 4, 771 [109] ‑ [113].

4. As to the social adjustment domain, the risk factors of intimate and non‑intimate relationships and non-sexual criminal activity are present.  He does not have problems with employment.[182]

   [182] Book of Materials, Vol 4, 772 [114] ‑ [117].

5. In terms of management, the risk factor of problems with supervision is present, and the factor of problems with planning is partially present.  Dr Wojnarowska noted the respondent's recent breaches demonstrated that, at times, he acted in a devious way in order to achieve his goal, using an example in which he manipulated cameras to avoid anyone detecting that his partner was present.[183]

   [183] Book of Materials, Vol 4, 772 [119].

6. In Dr Wojnarowska's view, given the respondent's personality structure, the risk that he would not be cooperative with his supervision order conditions had to be acknowledged.  However, Dr Wojnarowska also noted that the respondent has demonstrated his commitment to engaging in psychological counselling.[184]

Risk scenarios

[184] Book of Materials, Vol 4, 772 ‑ 773 [118] ‑ [120].

1. The most likely risk scenario for sexual violence would involve digital or penile penetration of an adult female with whom he has formed a relationship, even if only a brief one.  His likely motivation would be to 'punish' a woman who either refused to have an intimate relationship with him, or who has emotionally hurt him.  The physical harm could be on a 'high end' scale, with likely enduring emotional harm including severe post-traumatic stress disorder.[185]

   [185] Book of Materials, Vol 4, 773 [122].

2. According to Dr Wojnarowska, the respondent is unlikely to change his type of offending, but may escalate to assaulting a stranger, and there is also a possibility that he will engage in 'abductive type behaviours', for example forcing someone to a secluded area where he would engage in sexual assault.[186]

   [186] Book of Materials, Vol 4, 773 [123].

3. The risk scenarios are not what Dr Wojnarowska would regard as 'truly imminent', as the respondent would need to develop some kind of relationship with the victim and be intoxicated.  Dr Wojnarowska did not address the respondent's current relationship in this context.  Likewise, Dr Wojnarowska considered offending against a stranger would require the respondent to be intoxicated, and is a less likely scenario.[187]

Assessment of risk

[187] Book of Materials, Vol 4, 773 [124].

1. Dr Wojnarowska was of the opinion that the respondent's dynamic risk factors mitigate, to some extent, the high score he received on actuarial testing.  Nonetheless, she considered that the respondent's risk of sexual reoffending is still high in the absence of restriction.  In her view, that risk could be adequately managed in the community.[188]

   [188] Book of Materials, Vol 4, 773 [125] ‑ [126].

2. The most important part of managing the respondent's risk would be individual counselling intervention addressing his outstanding criminogenic needs, including unresolved childhood traumas.[189]

   [189] Book of Materials, Vol 4, 774 [127].

3. Dr Wojnarowska also considered that the respondent's tricyclic antidepressant medication could be replaced with an SSRI antidepressant, which has an antilibidinal effect as well as having more utility in treating depression.  Further, he could be treated with a non‑stimulant medication if he were to be treated for ADHD,[190] although Dr Wojnarowska has not seen much success with such medication.[191]

   [190] Book of Materials, Vol 4, 774 [127] ‑ [129].

   [191] ts 462.

4. Like the other experts, Dr Wojnarowska did not consider that accommodation with Ms KM is a suitable option for the respondent.[192]

Supplementary Report of Dr Yewers dated 10 October 2024

[192] Book of Materials, Vol 4, 774 [131].

1. Having considered the report of Dr Wojnarowska, Dr Yewers maintained her opinion that the respondent should be fully assessed to determine whether he has ADHD.  She did not consider such testing to be critical to the management of the respondent, but that it might provide an option for a different intervention which might increase the respondent's responsivity to treatment.[193]

   [193] ts 466.

2. Otherwise Dr Yewers' opinions as expressed in her original report and in her evidence at the June hearing remain the same.

Should the Supervision Order be rescinded, affirmed, amended or extended?

1. I am satisfied that the respondent could, in theory, be managed in the community on his SO such that the community is adequately protected against the risk that the respondent will commit a serious offence if released in the absence of restriction. 

2. However, there are two significant impediments in this case.  The first is that I must be satisfied, on the balance of probabilities, that the respondent will substantially comply with the standard conditions of the SO, the onus of proof of which rests on him. 

3. The contraventions committed by the respondent related to drug use and his relationship with Ms KM.  Those factors are very closely correlated to the level of risk of the respondent committing a serious offence and the adequate protection of the community against that risk.  In other words, breach of the conditions related to those factors results in a heightened risk, and increased imminence of offending, and places Ms KM, as a person of particular vulnerability, at significant risk of serious harm. 

4. The respondent is insistent that he wishes to reside with Ms KM.  This is despite the relationship being very new, and the fact that there are considerable barriers to it being a stable and protective relationship.  There are concerns regarding the ability of the respondent to cope with relationship issues.  He continues to have significant alcohol and other drug issues, with the danger of relapse being very high in the event of stressful situations.  Ms KM has her own range of issues, which cannot be controlled by the respondent, but may well add to the stressors which will impact on him.

5. While a positive outlook on his drug rehabilitation is a good thing, in my view the respondent is overconfident in his ability to remain abstinent from substances without ongoing treatment in combination with a gradual and supported re‑introduction to circumstances of likely increased stress and emotional conflict.  His proposal for his release appears to rely primarily upon his present, idealised, perspective of his relationship with Ms KM, believing that their mutual support will be sufficient to overcome the issues he has had in the past.  He does not appear to contemplate any adversity in that relationship, or what might flow from it, despite the evidence of the experts as to his risk scenarios and his violence cycle. 

6. The respondent's demonstrated unwillingness to comply with those conditions, his ongoing resentment of the involvement of Adult Community Corrections staff in Geraldton, his lack of insight into the challenges he will face in managing his drug use and risk, and his focus on his relationship rather than a realistic release and treatment plan, lead me to the conclusion that I cannot be satisfied to the required standard that he will abide by the standard condition to comply with any reasonable direction of the community corrections officer. 

7. Even if I were satisfied, adequate management of the respondent in the community would require that he have appropriate accommodation.  That would necessarily involve the respondent being willing to abide by the conditions of any such appropriate accommodation. 

8. 'Appropriate accommodation', in this context, is not just a house in which the respondent can reside.  As Hall J (as he then was) observed in The State of Western Australia v Corbett [No 5],[194] the location and type of accommodation are factors that are integral to any proper assessment of the risk of reoffending.  The accommodation needs to be in a location which is accessible to the facilities where the necessary treatment and supervision required to manage the respondent in the community can be undertaken.  In the case of the respondent, it also needs to be either with people who are likely to be protective against the risk that the respondent poses to the community, or with no other people. 

   [194] The State of Western Australia v Corbett [No 5] [2017] WASC 115 [80].

9. No expert considers the respondent's accommodation proposal to be suitable at this stage.  I accept their opinions in that regard. 

10. The respondent has alternatively proposed that he reside at the Arrowsmith location of the St ROB Foundation.  However, that property is not available to him, and in any event has been assessed as not being suitable for supervision of the respondent. 

11. Accordingly, I have determined that the SO must be rescinded and a continuing detention order made.  

12. It is necessary to make a final observation.  The evidence given at the hearing indicates that, while in custody, the respondent has not been given access to treatment programs which are considered to be likely to be highly beneficial to him because he has been on an interim detention order.  With the making of a continuing detention order, the purpose of which is care and treatment as well as control, it is vital that the authorities give as high priority as possible to making the recommended programs accessible to the respondent. 

13. In particular, the possibility that he may be released on review of the continuing detention order, where the review is required to be applied for as soon as practicable after one year, should not be regarded as an impediment to the respondent commencing an appropriate program in the second half of 2025.  Before the respondent could be released on review, reports would need to be ordered, a hearing held, and accommodation be made available.  That will likely take some time and no assumptions should be made as to when that review would be concluded.  It would therefore be highly unfortunate if the authorities declined to make a program available to the respondent on the basis of speculation as to a possible release date, when such a program is necessary for his appropriate management and treatment.

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

SI

Associate to the Honourable Justice Forrester

11 NOVEMBER 2024