The State of Western Australia v Carlton [No 2]
[2024] WASC 506
•31 DECEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- CARLTON [No 2] [2024] WASC 506
CORAM: LUNDBERG J
HEARD: 22 & 24 MAY 2024
DELIVERED : 31 DECEMBER 2024
FILE NO/S: SO 6 of 2021
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
ANTHONY JOHN CARLTON
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 (WA) - Application by the State for imposition of a restriction order - Where respondent has an intellectual development disorder, cognitive impairments and history of serious sexual and violent offending - Where respondent has a history of substance abuse - Whether respondent is a high risk serious offender - Whether supervision order may be made - Consideration of suitable accommodation arrangements and funding under the National Disability Insurance Scheme - Paramount consideration to ensure adequate protection of the community - Turns on own facts
Legislation:
Guardianship and Administration Act 1990 (WA)
High Risk Serious Offenders Act 2020 (WA), s 7, s 29, s 35, s 46 and s 48
National Disability Insurance Scheme Act 2013 (Cth)
Result:
Supervision order made for a period of 3 years subject to the conditions set out in Attachment A of the reasons
Category: B
Representation:
Counsel:
| Applicant | : | F M Allen |
| Respondent | : | A Fedele |
Solicitors:
| Applicant | : | State Solicitor's Office (WA) |
| Respondent | : | Legal Aid (WA) |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Italiano v The State of Western Australia [2009] WASCA 116
State of Western Australia v Carlton [2021] WASC 327
The State of Western Australia v Garlett [2021] WASC 387
The State of Western Australia v JXK [No 3] [2023] WASC 23
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Newland [No 3] [2022] WASC 43
The State of Western Australia v Tomasovich [No 2] [2022] WASC 402
The State of Western Australia v West [No 6] [2019] WASC 427
The State of Western Australia v White [No 7] [2023] WASC 432
The State of Western Australia v ZSJ [2020] WASC 330
Table of Contents
A. Introduction
B. Summary and outcome
C. Relevant questions on this Application
(1) First question
(2) Second question
D. Legislative framework and relevant principles
(1)HRSO Act
(2)NDIS Act
E. Procedural history of the Application
(1) Hearing on 5 April 2023
(2) Hearing on 31 May 2023
(3) Hearing on 22 May 2024
F. Respondent's personal background
(1) Overview
(2) The 2015 offence
(3) The 2016 offences
(4) Prior offences
G. Evidence
(1) Treatment programs
(2) Ms Maria Krabbe, Clinical Psychologist
(3) Dr Ben Bannister - Forensic Psychologist
(4) Dr Ryan Nichols - Paediatrician
(5) Dr Elizabeth Vuletich - Consultant Clinical Neuropsychologist
(6) Ms Julie Hasson - Consultant Forensic Psychologist
(7) Dr Peter Wynn Owen - Consultant Forensic Psychiatrist
(8) Corrective Services Evidence
(9) NDIS Plan
H. Disposition
(1) High risk serious offender
(2) Substantial compliance with the standard conditions
I. Conclusion
ATTACHMENT A SUPERVISION ORDER CONDITIONS
LUNDBERG J:
A. Introduction
The respondent is 44 years of age. He has spent a significant period of his life in custody. The respondent has been convicted of several violent and sexual assaults, of an extremely serious nature. Those offences have been committed against former partners and also against an 8-year-old child, among other victims.
The respondent is an Indigenous man, originally from Port Hedland but, when not in custody, has lived much of his life in the Kimberley region including at the Oombulgurri community, which is not far (at least as the crow flies) from Wyndham in the far north of the State. The respondent has been described as having a semi-tribal background.
The respondent completed his most recent custodial term in October 2021. During his incarceration, the respondent has been diagnosed with a number of health conditions, including an intellectual development disorder and severe language disorder. He has never been diagnosed with, nor treated for, a major mental illness. The respondent suffers from a history of substance abuse, involving both alcohol and cannabis.
On 28 July 2021, in advance of the respondent completing his custodial term, the State of Western Australia filed an application seeking the imposition of a restriction order (Application) in respect of the respondent. The Application was made pursuant to ss 35, 46 and 48 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act).
The ultimate question for the Court's determination on the Application was whether a restriction order should be imposed under s 48(1) of the HRSO Act. Following a preliminary hearing before his Honour the Chief Justice, an interim detention order was made by this Court on 24 September 2021, pursuant to s 46(2)(c)(i) of the HRSO Act. I refer to the reasons given by his Honour for imposing that interim detention order.[1] The respondent was held in custody thereafter.
[1] State of Western Australia v Carlton [2021] WASC 327 (Quinlan CJ).
The Application was adjourned by orders made by Hill J and then Forrester J in 2022. Thereafter, the final hearing of the matter was delayed, during 2023 and early 2024, in order to permit the State to obtain, assemble, and then adduce the necessary evidence in support of the Application. The evidence in question concerned matters related to the accommodation, care and supervision requirements of the respondent, in the event a supervision order was made, and the ability to obtain funding from the National Disability Insurance Agency (NDIA), through the National Disability Insurance Scheme (NDIS) for the support of the respondent in the community. These funding arrangements have legislative effect through the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). There was also a need for the State to obtain an occupational therapy functional assessment report.
The Application was initially brought on for substantive hearing before me on 5 April 2023, on which date oral evidence was led by the State from various witnesses, together with documentary evidence. The Application was then given the following listing dates which were subsequently adjourned at the request of the parties, namely: 27 April 2023, 12 May 2023, 31 May 2023 (a short hearing was held on this date), 25 August 2023 and 4 October 2023. This timeline of the proceedings is unsatisfactory but, in general terms, the delays in the hearing of the matter were consented to by the respondent and were necessary to allow the outstanding evidentiary matters to be addressed. Indeed, as counsel for the respondent noted, in the absence of suitable accommodation arrangements, the Court's hands would effectively be tied in relation to the choice between a Supervision Order or a CDO.[2]
[2] ts 114.
It is also pertinent to note that, in January 2024, orders were made by the State Administrative Tribunal declaring that the respondent was unable by reason of mental disability to make reasonable judgments in respect of matters relating to his estate and was in need of an administrator and a guardian. The Public Trustee was appointed as his plenary administrator at that time, pursuant to the Guardianship and Administration Act 1990 (WA) (GAA), with the Public Advocate appointed as his limited guardian. These orders are to be reviewed by the Tribunal by 11 January 2026.
B. Summary and outcome
The matter was finally heard before me on 22 May 2024, over a year after the first hearing, at which time further oral and documentary evidence was adduced by the State. The respondent elected to call no evidence. At the conclusion of that hearing I indicated I would make final orders on 24 May 2024 to avoid any further delays in the matter, and given the duration of the respondent's interim detention order.
Having affirmatively concluded that the Application should be disposed of by the making of a supervision order under s 48(1)(b) of the HRSO Act (Supervision Order), rather than a continuing detention order (CDO) or no restriction order at all, I gave brief oral reasons to that effect on 24 May 2024 and made final orders, indicating that I would provide formal reasons in due course (rather than further delay the matter). These are my formal reasons for determining the Application.
The orders I made on 24 May 2024 were as follows:
1.Upon the coming into effect of the supervision order on 24 May 2024, the interim detention order made on 24 September 2021 would be rescinded pursuant to s 68(1)(b)(ii) of the HRSO Act.
2.Pursuant to s 48(1)(b) of the HRSO Act, the Court, having found that the respondent is a high risk serious offender within the meaning of s 7(1) of the HRSO Act, makes a supervision order in relation to the respondent, for a period of 3 years from 20 June 2024, on the conditions which are set out in Attachment A to these reasons.
3.The publication of the address of the accommodation in its entirety, including the region of Western Australia, in the conditions of the supervision order, and any information that may lead to the identification of that address, is prohibited until further order of the Court.
The State's ultimate position in the matter was that the evidence demonstrated the respondent was a high risk serious offender within the meaning of the HRSO Act, and that a restriction order should be imposed by the Court. Having regard to the opinions expressed by the expert witnesses, and having regard to the evidence generally, the State's submission was that a Supervision Order under the HRSO Act should be imposed by the Court (rather than a CDO).[3]
[3] ts 144.
Initially, however, absent a clear and certain position as to the availability of accommodation and supervision for the respondent, the State's position was that it was not able to formally concede that the relevant risk may be managed in the community.[4] The subsequent change in position logically followed the evidence which was obtained concerning the accommodation and care requirements for the respondent, and the availability of funding under the NDIS.
[4] Applicant’s Submissions dated 3 April 2023 (AS) [3].
The respondent, through his counsel, conceded that he could properly be characterised as a high risk serious offender, and similarly submitted at the final hearing that the Court should be satisfied that a Supervision Order was appropriate rather than a CDO.[5] The concession as to the respondent's status as a high risk serious offender was properly made.
[5] ts 131.
As I indicated at the hearing on 24 May 2024, having regard to the evidence and to the concession made by the respondent, I was appropriately satisfied on the evidence that the respondent was a high-risk serious offender within the meaning of the Act. The material adduced by the State in that regard demonstrably supported that conclusion. In reaching this view, I gave anxious consideration to the restriction order outcomes the court should impose by way of a disposition to the Application. That said, I note that no submission was advanced before me, by either party, to the effect that I should impose a CDO.
In the result, the conclusion I reached was that the respondent had discharged the onus upon him on the balance of probabilities to demonstrate that he would substantially comply with the standard conditions to be attached to a Supervision Order.
The terms of the Supervision Order ordered by the Court contained amendments introduced on the Court's own motion having regard to the evidence, as well as amendments which had been proposed by both parties during the course of the hearing of the Application. The view I adopted was that the conditions should be very onerous in the circumstances, given the prior conduct of the respondent and having regard to the expert evidence of both Dr Peter Wynn Owen and Ms Julie Hasson, being respectively the forensic psychiatrist and forensic psychologist who reviewed the respondent and gave evidence in the proceedings.
In formulating those conditions, as explained in these reasons, the approach I adopted was to ensure that, as the statute makes clear in s 48(2), the paramount consideration, being the need to ensure the adequate protection of the community, was kept firmly in mind as a determining matter.
In the circumstances, therefore, the approach I adopted was, having concluded that the respondent was a high-risk serious offender, to make a restriction order of the kind identified in s 48(1)(b) of the Act, which is a Supervision Order on both the standard terms and conditions under the HRSO Act, which are mandatory, but also by reference to and subject to some 44 additional conditions which reflect, in my view, the need to ensure a high degree of supervision of the respondent and the monitoring of his conduct going forward.
One of the specific conditions which I included was to require that the respondent abide by any conditions imposed through the NDIS, to ensure that he continues to receive the requisite level of ongoing support in order to mitigate his risk of reoffending.[6]
[6] See condition 27 in Attachment A.
C. Relevant questions on this Application
The following questions arose for determination on this Application.
(1) First question
The first question for the Court is to assess whether the respondent is a high risk serious offender in the sense that the Court is satisfied by acceptable and cogent evidence and to a high degree of probability that it is necessary to make a restriction order to ensure the adequate protection of the community against the unacceptable risk the respondent would commit a serious offence in the future.
The State bears the onus of satisfying the Court in this regard. The principles applicable to this analysis are set out later in these reasons.
If the State does not discharge the onus in this regard, then the Court would then dismiss the State's application and rescind the interim detention order. The State has made submissions in the present matter to the effect that the Court should find the respondent is a high risk serious offender under the legislation, which has been conceded on behalf of the respondent.
(2) Second question
If the first question is answered in the affirmative, the Court must consider whether the appropriate disposition is to make a CDO or to release the respondent into the community but subject to a Supervision Order. This requires an analysis by the Court of all the available evidence, to assess whether the Court can be satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions of a Supervision Order and to have regard to the paramount consideration, which is to ensure the adequate protection of the community.[7]
[7] HRSO Act, s 29(1) and s 48.
The respondent bears the onus to satisfy the Court as to substantial compliance with the standard conditions. In this regard, two particular factors required close attention on the present Application, namely:
(a) the availability of sufficient funding through the NDIS for the necessary support of the respondent in the community; and
(b) the availability of suitable accommodation for the respondent.
If the respondent does not discharge the onus, then the Court must make a CDO. If the respondent discharges his onus, it remains necessary for the Court to have regard to the paramount consideration to ensure the adequate protection of the community before a supervision order can be made.
I will briefly set out the legislative framework and principles which govern applications such as the present, and then turn to examine the respondent's background and the evidence which has been presented by the State.
D. Legislative framework and relevant principles
(1) HRSO Act
The Application is to be dealt with under s 48 of the Act. That provision, which is found in pt 4 div 3 of the legislation, states as follows:
48.Restriction orders
(1)If the court hearing a restriction order application finds that the offender is a high risk serious offender, the court must —
(a)make a continuing detention order in relation to the offender; or
(b)except as provided in section 29, make a supervision order in relation to the offender.
(2)In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.
The following summary of the applicable principles are drawn from my decision in The State of Western Australia v JXK [No 3].[8] I have also had regard to the principles extracted in the State's submissions.
[8] The State of Western Australia v JXK [No 3] [2023] WASC 23.
The principles that apply to a review of a CDO are well known. They have been set out in several decisions of this Court and were summarised by Hall J in The State of Western Australia v Newland [No 3].[9]
[9] The State of Western Australia v Newland [No 3] [2022] WASC 43.
On an application for the making of a restriction order under the HRSO Act, the Court has to consider, first, whether the person remains a high risk serious offender and, second, if so, whether a CDO should be made, or a Supervision Order made.[10]
[10] HRSO Act, s 48.
Section 7(1) provides that an offender is a high risk serious offender if the court is satisfied by acceptable and cogent evidence and to a high degree of probability that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.
A 'restriction order' under s 7(1) means either a CDO or a Supervision Order.[11]
[11] HRSO Act, s 3.
A 'serious offence' is an offence specified in sch 1 div 1 of the HRSO Act, or in sch 1 div 2 and committed in the circumstances set out in div 2 relation to that offence.[12] In relation to sexual offences, the offences set out in sch 1 div 1 include all offences formerly defined as 'serious sexual offences' under the predecessor legislation.
[12] HRSO Act, s 3, s 5(1) and s 5(2).
Section 7(1) was analysed by Corboy J in The State of Western Australia v Garlett.[13] Corboy J held that the preferred interpretation of the section requires the Court to undertake two separate evaluative assessments.
[13] The State of Western Australia v Garlett [2021] WASC 387.
First, the court must be satisfied that a risk that an offender will commit a serious offence is unacceptable. Second, the Court must be satisfied that it is necessary to make a restriction order to ensure adequate community protection against a risk that the offender will commit a serious offence.[14]
[14] The State of Western Australia v Garlett [135] ‑ [138].
The State bears the onus of satisfying the court that an offender is a high risk serious offender.[15] The Court has to be satisfied of these matters, pursuant to s 7(1), by acceptable and cogent evidence and to a high degree of probability. This is a standard that is greater than a finding on the balance of probabilities and less than a finding of beyond reasonable doubt. It is otherwise incapable of further definition.[16]
[15] HRSO Act, s 7(2).
[16] Director of Public Prosecutions (WA) v GTR[2008] WASCA 187; (2008) 38 WAR 307 [28] (Steytler P and Buss JA).
An 'unacceptable risk' is a risk that is not trivial or transient.[17]
[17] The State of Western Australia v Garlett [136(b)].
The Court is required to undertake a balancing exercise, taking into account the matters listed in s 7(3). In doing so, the Court must disregard the possibility that the offender might temporarily be prevented from committing a serious offence by imprisonment, remand in custody, or the imposition of bail conditions.[18]It requires the Court to have regard to, among other things, the nature of the risk (the commission of a serious offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition whilst having regard, on the other hand, to the serious consequences for the offender if an order is made under the HRSO Act.
[18] HRSO Act, s 7(4)(c).
The requirement is not that the risk that the offender will commit a serious offence must be at some high percentage of probability. A risk that the offender will commit a serious offence may be less than 50%, yet still be considered an unacceptable risk.[19] It is the necessity to make a restriction order in relation to the offender, to ensure adequate protection of the community against an unacceptable risk.
[19] The State of Western Australia v West [No 6] [2019] WASC 427 [24]; The State of Western Australia v ZSJ [2020] WASC 330 [47].
If, following the balancing exercise required by s 7(1),the Court is satisfied that the offender is a high risk serious offender, the remaining issue is whether it is appropriate to order a CDO or a Supervision Order.[20]A Court cannot make a Supervision Order unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of such an order.[21]The standard conditions are those contained in s 30(2) of the HRSO Act and include reporting, supervision, electronic monitoring and that the offender will not commit a serious offence during the period of the order. The onus is on an offender to satisfy the Court that he will substantially comply with the standard conditions.[22]
[20] HRSO Act, s 48(1).
[21] HRSO Act, s 29(1).
[22] HRSO Act, s 29(2).
The powers conferred by the HRSO Act are not to be exercised for the purpose of imposing additional punishment, but rather for the ultimate purpose of protecting the community. The protective purpose of the HRSO Act was affirmed by the High Court in Garlett v The State of Western Australia.[23]This requires the Court to choose the order that is the least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community.[24] In doing so, the Court's function is not to reduce this risk to zero.[25]
[23] Garlett v The State of Western Australia [2022] HCA 30 [45], [55] ‑ [56] (Kiefel CJ, Keane and Steward JJ), but see the analysis of Edelman J on this issue at [247] ‑ [255], describing continuing detention orders under the HRSO Act as 'protective punishment'.
[24] The State of Western Australia v Latimer [2006] WASC 235 [49].
[25] Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 [107].
The protective purpose of the HRSO Act is to be achieved not only by continuing to exercise control over the person the subject of an order, but also by providing care and treatment for the offender, in the hope that the risk to the community will be reduced.[26]
[26] HRSO Act, s 8(b). See also The State of Western Australia v Tomasovich [No 2] [2022] WASC 402 [38] (Curthoys J).
The risk of offending may be affected by age, health and the successful completion of treatment. If the offender is found not to be a high risk serious offender, a restriction order cannot be ordered.[27]
[27] HRSO Act, s 48(1).
If the offender is found to be a high risk serious offender, the Court does not have a predisposition to make a CDO. In deciding whether to make a CDO, or to make a Supervision Order, the paramount consideration is the need to ensure adequate protection to the community.[28]
[28] HRSO Act, s 48(2).
The level of risk posed by the respondent, and whether the community can be adequately protected against the risk under a Supervision Order, must be assessed by having regard not only to factors personal to the respondent, such as personality, attitudes, propensities and his capacity to control or manage his own behaviour, but also to external constraints and obligations that can be put in place under a Supervision Order to mitigate the risk.
Whether the protection that can be afforded by a Supervision Order will be 'adequate' is a qualitative assessment. It is necessary to have regard to the nature of the risk, the likelihood of the risk being realised and the likely effect that the proposed Supervision Order could have in reducing or obviating that risk.[29]
[29] Director of Public Prosecutions (WA) v GTR [26] ‑ [27] (Steytler P and Buss JA) and Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63] ‑ [65] (Wheeler JA)
Gains made by an offender in treatment and their behaviour while in custody will inform the assessment of the personal factors. Behavioural changes or improvements in management options may make a supervision order a viable possibility.[30] The availability of new technology or resources in the community is also relevant to the assessment of external factors.
(2) NDIS Act
[30] The State of Western Australia v Newland [No 3] [23]. See also Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178 [14] ‑ [18].
Given the issues arising on this Application, and the duration and terms of the funding for the respondent under the NDIS regime, some explanation of that regime is warranted. The explanation below draws from the summary which appears in the reasons I published in another matter involving the review of a CDO under the HRSO Act, namely The State of Western Australia v White [No 7].[31]
[31] The State of Western Australia v White [No 7] [2023] WASC 432.
The National Disability Insurance (Supports for Participants) Rules 2013 (Cth) (NDIS Rules) are made for the purposes of ss 33 and 34 of the NDIS Act.[32] The NDIS Rules set out the relevant scheme for the assessment and determination of the reasonable and necessary supports that will be funded and the general supports that will be provided for participants under the NDIS.[33]
[32] NDIS Act, s 33 (Matters that must be included in a participant's plan) and s 34 (Reasonable and necessary supports).
[33] NDIS Rules, [1.1].
The NDIS is implemented under the NDIS Act. That legislation establishes a statutory framework for a national program for the delivery of supports and services funded under the NDIS to eligible people living with disability to help them in their everyday lives supporting their independent and social and economic participation and enabling them to exercise choice and control over the planning and the delivery of their supports.
When a person becomes a participant in the NDIS, they develop a plan with the NDIA.[34] The respondent is eligible for support under the NDIS Act and a plan (together with funding) has been prepared which has received NDIS approval. Pursuant to s 33 of the NDIS Act, a NDIS plan comprises of two parts:
(a)the participant's statement of goals and aspirations, which is prepared by the participant and specifies their goals, objectives, aspirations and circumstances;[35] and
(b)the statement of participant supports, which is prepared with the participant and approved by the CEO, and sets out, among other things:
(i)the general supports that will be provided to, or in relation to, the participant;
(ii)the reasonable and necessary supports that will be funded under the NDIS;[36] and
(iii)a reassessment date[37] - being the date by which the NDIA must reassess the plan.[38]
[34] NDIS Act, s 9 (definition of 'Agency'). The term 'Agency' means the NDIA referred to in s 117(1).See also NDIS Act, s 32; and the NDIS Rules [2.1].
[35] NDIS Act, s 33(1); and NDIS Rules [2.1](a).
[36] NDIS Act, s 9 and 13(2) (definition of 'supports' and 'general supports'). Support includes general supports. General Supports means: (a) a service provide by the NDIA to a person; or (b) an activity engaged in by the NDIA in relation to a person; that is in the nature of coordination, strategic or referral service or activity, including a locally provided coordination, strategic or referral service or activity. The definition of general support includes funding, and ss 33-34 indicate that general supports are provided, and reasonable and necessary supports are funded.
[37] NDIS Act, s 9 (definition of 'reassessment date'). Reassessment date means of a participant's plan means the date specified under paragraph 33(2)(c). The reassessment date for the respondent is 5 June 2023.
[38] NDIS Act, s 33(2); and NDIS Rules [2.1](b).
Various changes to the NDIS Act came into effect from 1 July 2022, with a focus on the reassessment required of a participant's NDIS plan at the end date of the plan. The matters relevant to the reassessment of a NDIS plan are set out in chapter 3 part 2 div 4 of the NDIS Act. The possible outcomes of a reassessment are either variation of an existing NDIS plan or the preparation of a new plan.[39] I need not deal with the provisions which concern the preparation of a new plan, but focus below on the regime as it concerns the variation of a NDIS plan.
[39] NDIS Act, s 48(7) - (8) and s 49(1) - (2).
The variation of a NDIS plan includes a variation of the reassessment date of the NDIS plan to a later date where the CEO is satisfied that the participant's existing plan is likely to meet their support needs for a longer period than otherwise specified in the existing plan.[40]
[40] NDIS Act, s 47A(1A)(a).
A reassessment may be undertaken under s 48, at any time on the request of the participant or on the CEO's own initiative,[41] or under s 49, before the reassessment date of a participant's plan.[42]
[41] NDIS Act, s 48(1) - (2).
[42] NDIS Act, s 49(1).
In the present case, if the CEO is satisfied that his current NDIS plan is likely to meet his support needs for a longer period than specified in his plan, I accept it is possible that a variation of the reassessment date of the NDIS plan may be made to a later date.For example, such variation may be for a further duration of 3 years.[43]
[43] NDIS Act, s 47A(1A)(a).
The NDIS Act specifies the matters to which the CEO must have regard in varying the participant's plan, namely the CEO must:
(a)have regard to the participant's statement of goals and aspirations;
(b)have regard to relevant assessments conducted in relation to the participant;
(c)be satisfied as mentioned in s 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided;
(d)apply the NDIS rules (if any) made for the purposes of s 35;
(e)have regard to the principle that a participant should manage the participant's plan to the extent that the participant wishes to do so; and
(f)have regard to the operation and effectiveness of any previous plans of the participant.[44]
[44] NDIS Act s 47A(3); see also NDIS Act s 33(5) which mirrors s 47A(3).
With respect to the general supports that will be provided and the reasonable and necessary supports that will be funded under the NDIS Act, s 34 provides that the CEO must be satisfied with all of the following:
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is most appropriately funded or provided through the NDIS, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i)as part of a universal service obligation; or
(ii)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.[45]
[45] NDIS Act, s 34(1); and NDIS Rules, [2.3].
I should also mention the objects and principles stated in the NDIS Act which are relevant to any reassessment of a participant's plan.[46] The objects of the NDIS Act are provided in s 3(1)(a) - (i) of the NDIS Act, including to:[47]
(a)support the independence and social and economic participation of people with disability;
(b)provide reasonable and necessary supports, including early intervention supports, for participations in the NDIS;
(c)enable people with disability to exercise choice and control in the pursuits of their goals and the planning and delivery of their supports;
(d)facilitate the development of nationally consistent approach to the access to, and the planning and funding of, supports of people with disability;
(e) protect and prevent people with disability from experiencing harm arising from poor quality and unsafe supports or services provided under the NDIS.
[46] NDIS Act, s 47A.
[47] NDIS Act, s 3(1)(c)–(f), (ga).
Finally, the general principles guiding actions under the NDIS Act are provided in s 4(1) - (17) of the NDIS Act, including the following:[48]
[48] NDIS Act, s 4(2)-(5), (11).
(a)People with disability should be supported to participate in and contribute to social and economic life.
(b)People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.
(c)People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
(d)People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
(e)Reasonable and necessary supports for people with disability should:
(i)support people with disability to pursue their goals and maximise their independence; and
(ii)support people with disability to live independently and to be included in the community as fully participating citizens; and
(iii)develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.[49]
[49] I will mention, but not set out in full, that s 17A(1) - (3) of the NDIS Act further provides principles which the CEO must have regard to, in addition to the principles in s 4, in performing the CEO's functions and exercising the CEO's powers under Chapter 3, such as when conducting the assessment (or reassessment) of a participant's NDIS plans. These principles are similar to those in s 4 of the NDIS Act. I will also mention, but not set out in full, that s 31(a) - (k) of the NDIS Act provides for the principles relating to the preparation, variation, reassessment and replacement of a participant's plan, and the management of the funding of supports under a participant's plan.
E. Procedural history of the Application
(1) Hearing on 5 April 2023
At the first hearing of the Application on 5 April 2023, the State tendered a book of materials (Book of Materials) comprising four volumes.[50] I received those volumes as Exhibit A through to Exhibit D. Exhibit A and B are dated 22 November 2021, Exhibit C is dated 31 March 2022, and Exhibit D is dated 29 March 2022.
[50] ts 16.
Volume 1 of the Book of Materials consisted of background material which included the Respondent's criminal record, Department of Justice prison and corrective services records, medical reports, substance use reports and hospital reports. These records reflect the period between 15 April 2016 to 15 October 2021.
Volume 2 of the Book of Materials comprised the statement of material facts, transcripts of the electronic record of interviews, witness statements, and transcripts of sentencing for offences in the Respondent's history.
The offences were either categorised as 'serious offences' pursuant to s 5 of the HRSO Act, or otherwise. Additionally, Exhibit B included various post-sentence reports prepared by the Kimberly Offender Program, the Parole Board and the Department of Corrective Services regarding the Respondent's parole, rehabilitation, and treatment plans.
Exhibit C included materials specifically prepared for the Restriction Order Application, namely:
(a)The Psychological Report prepared by Ms Julie Hasson dated 10 January 2023.[51] Ms Hasson is a Forensic Psychologist.
(b)The Proposed HRSO Management Plan of Dr Ben Bannister dated 31 March 2022.[52] Dr Ben Bannister is a Forensic Psychologist.
(c)The Psychiatric Report of Dr Peter Wynn Owen dated 23 March 2022.[53] Dr Wynn Owen is a Consultant Forensic Psychiatrist.
(d)The Community Supervision Assessment of Emma Cashmore dated 17 March 2022.[54] Ms Cashmore is a Senior Community Corrections Officer with the Department of Justice.
(e)The Neuropsychological Assessment of Elizabeth Vuletich dated 10 March 2022.[55] Ms Vuletich is a Consultant Clinical Neuropsychologist.
[51] Exhibit C, pg 565 - 592.
[52] Exhibit C, pg 593 - 598.
[53] Exhibit C, pg 599-632.
[54] Exhibit C, pg 633 – 651.
[55] Exhibit C, pg 652 – 676.
Exhibit D contains further materials provided by the Department of Justice including charge histories, prison incident reports and prison medical records. Predominantly, these records reflect the Respondent's recent history leading up to 2023. Exhibit D also contains further reports prepared for the restriction order hearing, namely;
(a)The Patches Multidisciplinary Assessment Report of Dr Ryan Nichols dated 25 October 2022.[56]
(b)The Proposed Treatment Options Report of Valerie Thatcher dated 29 March 2023.[57]
(c) The Psychiatric Report Addendum of Dr Peter Wynn Owen dated 28 March 2023.[58]
(d) The Updated Community Supervision Assessment Report of Gabriela Serrano.[59]
[56] Exhibit D, pg 733 - 759.
[57] Exhibit D, pg 760 - 765.
[58] Exhibit D, pg 766 - 768.
[59] Exhibit D, pg 769 – 780.
At the first hearing of the Application, oral evidence was given by Dr Wynn Owen, Ms Hasson, Ms Thatcher and Ms Serrano, and they were each cross-examined. The respondent did not challenge the expertise of the witnesses. My assessment was that each of the witnesses gave their evidence in a considered manner, giving reasons where appropriate. I accept their evidence.
In the case of each of the witnesses called, the State relied upon their reports as forming the majority of their evidence in chief, supplemented by evidence as to the necessity for particular conditions to be included in any supervision order which might be made in relation to the respondent.
The 5 April 2023 hearing was ultimately adjourned due to the need for an occupational therapy functional assessment report to be obtained. Since then, the matter has been listed and adjourned several times. I will set out below the substantive hearings in the matter, and the evidence led at those hearings.
(2) Hearing on 31 May 2023
At the resumed hearing on 31 May 2023, the Court received the following documentary materials into evidence, tendered by the State:
(a)the Occupational Therapy Report Functional Assessment Report prepared by Jack Beer dated 17 May 2023, received as Exhibit E; and
(b)the updated Community Supervision Assessment prepared by Ms Serrano dated 29 May 2023, received as Exhibit F.
The hearing was adjourned to allow the State to obtain status updates regarding available supports for the respondent. Further material was provided informally to the Court following the hearing on 31 May 2023, without objection from the respondent.
After being advised of delays in obtaining the relevant updates, the Court vacated the matter listed on 24 November 2023, at which time I made orders to facilitate the further hearing of the Application, in substance as follows:
(a)the hearing was re-listed for 28 February 2024;
(b)the Respondent was directed to undergo further examination by qualified experts, namely Dr Wynn Owen, and Ms Hasson, for the purpose of preparing an addendum report pursuant to section 74 of the Act that was to be used on the hearing of the Application;
(c)the Department of Justice was directed to provide the State with an updated Community Supervision Assessment concerning accommodation options, the status of the Respondent's NDIA application and the outcome of the meeting with the proposed core support provider in advance of the hearing; and
(d)the Department of Justice was directed to provide the State with an updated Treatment Progress Report prior to the hearing.
The above hearing was again adjourned by agreement of the parties, to allow further time for the parties to provide reports. As earlier noted, the restriction order hearing finally resumed and concluded on 22 May 2024.
(3) Hearing on 22 May 2024
At the hearing on 22 May 2024, the Court received in evidence, without objection from the respondent, the following documentary material:
(a)a book of materials for the restriction order hearing identified as volume 5, dated 22 November 2023, received as Exhibit G, which contained the following materials:
(i)the affidavit of Ivan Ng sworn on 12 May 2023;
(ii)the NDIS plans dated 27 September 2023 and 3 October 2023;
(iii)updated Community Supervision Assessment reports prepared by Ms Goode dated 18 August 2023 and 28 September 2023, and by Ms Czechowski dated 16 November 2023; and
(iv)various prison records pertaining to the respondent including medical records and incident history documents;
(b)a book of materials for the restriction order hearing identified as volume 6, dated 16 May 2024, received as Exhibit H, which contained the following materials:
(i)a decision of the State Administrative Tribunal dated 11 January 2024;
(ii)an addendum to the Treatment Options Report prepared by Ms Emma Cashmore, dated 10 May 2024;
(iii)the updated psychiatric report of Dr Wynn Owen dated 16 May 2024;
(iv)the updated psychological risk assessment prepared by Ms Hasson, dated 29 April 2024;
(v)the updated Community Supervision Assessment prepared by Ms Czechowski, dated 16 May 2024;
(c)the NDIS plan dated 23 February 2024, received as Exhibit I; and
(d)an email from Amy Goode re: WA Police Desktop Spatial Analysis, dated 24 May 2024, received as Exhibit J.
In addition, at the hearing on 22 May 2024, oral evidence was given by Dr Wynn Owen, Ms Hasson, and Ms Goode, and they were each cross-examined. The respondent did not challenge the expertise of the witnesses. Again, my assessment was that each of the witnesses gave their evidence in a considered manner, giving reasons where appropriate. I accept their evidence.
The respondent elected not to give or call any evidence at that hearing, or at all.
F. Respondent's personal background
(1) Overview
I will summarise below the respondent's background and criminal history, which I understood to be largely uncontentious.
As earlier indicated, the respondent is 44 years of age, and he has spent a significant period of his life in custody. The respondent has been convicted of several serious violent and sexual assaults, against former partners and also against an 8-year-old child (among other victims).
He is an Indigenous man, originally from Port Hedland but, when not in custody, he lived much of his life in the Kimberley region. During his incarceration, the respondent has been diagnosed with a number of health conditions, including intellectual development disorder and severe language disorder. The respondent also has a history of substance abuse, both alcohol and cannabis.
The respondent is the oldest of two children. His mother was unable to care for him when he was born, and he was placed with his aunt and uncle, though responsibility for parenting was shared amongst other family members. At the age of 5, the respondent's grandmother was recognised as the primary care giver.[60]
[60] Book of Materials Vol 3, 564 - 564.
In his late teens, the respondent was told his aunt and uncle were not his biological parents. Soon after, the respondent flew to meet his mother, father and two younger brothers with his aunt. This experience was marred when his aunt told him she was 'going to the pub' and never returned, he learnt later that she had gone to the airport and returned home. He found this experience confusing and recalled feeling abandoned, rejected and distressed.[61]
[61] Book of Materials Vol 3, 565.
The respondent was exposed to episodes of alcohol and substance abuse, and violence amongst extended family members and the local community. On occasions, the respondent reported that intoxicated adults would become aggressive towards children in his home and that on a number of occasions he was the victim of this physical aggression but is adamant his grandmother engaged in protective behaviours sheltering the children and punishing the adults.[62]
[62] Book of Materials Vol 3, 565.
The respondent has four children from three relationships. His first relationship began at the age of 16 years and two children were born to this union. He has maintained 'some' contact with his eldest son but no direct contact with his daughter. The respondent acknowledged drinking and 'slapping' his partner, and the relationship ended permanently when he offended against his partner's sister.[63]
[63] Book of Materials Vol 3, 566.
The respondent's next two relationships each bore one child. During the first of these relationships, the respondent reported assaulting his partner on multiple occasions, due to issues with jealousy and infidelity. The second relationship was marred by the respondent perpetrating 'significant violence' against his partner.[64]
[64] Book of Materials Vol 3, 567.
The fourth and most recent of the respondent's relationships was with the victim of the index offence. He reported there were significant issues in the relationship including with jealousy, belief of infidelity and disputes with his partner's family. His partner had 'three children to different men' and the respondent indicated he was a father figure to one of the children who called him 'dad'.[65]
[65] Book of Materials Vol 3, 567.
At the age of eight, the respondent became involved with the criminal justice system. The respondent would run away from school to spend time outdoors and through this became engaged in criminal behaviour in his early primary years.
In year nine, the respondent left school which resulted in difficulties with both literacy and numeracy.[66]
[66] Book of Materials Vol 3, 566.
The respondent has previously been employed in Commonwealth Development Employment Program and has engaged in a TAFE course, though it is not clear whether that was completed. He was briefly employed as a station hand in 1998 however he has largely failed to maintain employment.[67]
[67] Book of Materials Vol 3, 566, 604; Book of Materials Vol 2, 441 – 442.
As already noted, the respondent has had a serious problem with alcohol and cannabis. He began drinking at the age of 14 and smoking 'gange' at 23 years of age.[68] The respondent reported spending his time 'drinking from dusk to dawn' then 'sleeping it off'.[69]
[68] Book of Materials Vol 3, 568.
[69] Book of Materials Vol 2, 441 - 442.
The respondent reported a period of two years where he ceased drinking alcohol. He reported feeling physically better and fitter, however relapsed shortly prior to the index offending.[70]
[70] Book of Materials Vol 3, 568.
The respondent was diagnosed with a hole in his heart at birth. This required regular medical check-ups and eventually resolved without surgical intervention. Aside from the check-ups, the respondent led a full and normal life and was physically active with no obvious limitations.[71] It does not appear this impacts the respondent's health in any significant way at the time of the present proceedings.[72]
[71] Book of Materials Vol 3, 565.
[72] Book of Materials Vol 3, 569.
The respondent does not have any history of significant mental illness,[73] however, he has been diagnosed with intellectual development disorder and severe language disorder.[74]
[73] Book of Materials Vol 2, 442; Book of Materials Vol 3, 569.
[74] Book of Materials Vol 5, 835.
The offences which rendered the respondent liable to the operation of the HRSO Act are as follows:
(a)aggravated unlawful grievous bodily harm;
(b)intentional act occasioning bodily harm;
(c)aggravated assault occasioning bodily harm;
(d)unlawful wounding in circumstances of aggravation; and
(e)two counts of aggravated sexual penetration.
The respondent pleaded guilty to each of these offences. The circumstances of the index offences were determined by Bowen DCJ at the sentencing of the respondent on 10 October 2016.[75] At the time of the index offences, the respondent and the victim of all the index offences were in a family and domestic relationship and living together sporadically.[76]
(2) The 2015 offence
[75] Book of Materials Vol 2, 450 - 462.
[76] Book of Materials Vol 2, 308.
On 8 May 2015, the respondent and the victim had been drinking together. Later that evening, the victim woke the respondent, and he became angry and said to not wake him up. The victim then hit the respondent over the head with a bottle. The respondent then chased her and punched her twice to the jaw.
The victim suffered a broken jaw which required two screws to be inserted and lost a tooth, as well as suffering lacerations to the eyebrow, scalp, gums and lip. This constituted the offence of aggravated unlawful grievous bodily harm.[77]
(3) The 2016 offences
[77] Book of Materials Vol 2, 451 - 452.
On 2 April 2016, the respondent had been drinking. He walked over the where the victim was and punched her to the face and the body which caused the victim to fall to the ground. The respondent kicked her and stomped on her chest and head causing her to become unconscious. The respondent then poured beer on her head to wake her up. The victim sustained a laceration to the chin, which required gluing, and bruising to the scalp. This constituted the offence of intentional act occasioning bodily harm. [78]
[78] Book of Materials Vol 2, 452.
On 15 April 2016, the respondent had been drinking at a relative's house where he got into an argument with the victim and the victim left. After the respondent had returned home, he accused the victim of being with other men. He then punched the victim to the face and body, and hit her with a broom to the body. This constituted the offence of aggravated assault occasioning bodily harm.[79]
[79] Book of Materials Vol 2, 452 - 453.
The respondent then hit the victim with a beer bottle until the bottle broke. He then picked up a wooden drawer and hit her over the head, body and legs before dragging the victim into the shower. This resulted in cuts and bruises to the face, body and legs of the victim including a laceration to the knee that required stiches. This constituted the offence of unlawful wounding.[80]
[80] Book of Materials Vol 2, 452 - 453.
The respondent then pulled down the victim's shorts and repeatedly inserted three fingers into her vagina, causing the victim pain. The victim was crying and told the respondent to stop, and he punched her in the face. The respondent then repeatedly inserted two fingers into the victim's anus over a short period of time. The victim asked the respondent to stop but he continued. These events constituted the charges of aggravated sexual penetration.[81]
[81] Book of Materials Vol 2, 453.
His Honour found that the victim was, in essence, targeted because she was involved in a relationship with the respondent, who had significant issues with jealousy, mistrust, attachments and whose only coping mechanism seemed to be violence fuelled by intoxication.[82].
(4) Prior offences
[82] Book of Materials Vol 2, 453 - 454.
The respondent has an extensive criminal history, having had contact with the criminal justice system from the age of 9 years. Since 1998, the respondent has continued to offend with the only significant gaps being terms of imprisonment. Some of the offences, but not all, were serious offences within the meaning of the HRSO Act and are described below.
At the age of 17, in 1998, the respondent was dealt with for sexual penetration of a child under the age of 13, attempted sexual penetration, indecent dealing and deprivation of liberty. The respondent lured his de facto's sister, who was aged 8 years old, to nearby marshes. This was followed by two incidents of digital penetration, attempted penile penetration and two incidents of forced oral sex. Throughout the incident the victim was screaming and struggling to get away. The victim was left in the marshes by the respondent after the incident and managed to walk to the townsite, where the victim was found naked and bleeding by a member of the public.[83]
[83] Book of Materials Vol 2, 253.
In sentencing, French DCJ noted that at the time of the offending the respondent was under the influence of alcohol and that he had a chronic and severe alcohol abuse problem that commenced at a young age.[84] Her Honour went on to state that the respondent openly described his motive for this offending as being 'sexual' and demonstrated limited insight into the victim impact.[85] The respondent received a total effective sentence of 4 years' imprisonment, substantially reduced to account for the respondent's age and plea of guilty.[86]
[84] Book of Materials Vol 2, 254, 255.
[85] Book of Materials Vol 2, 255.
[86] Book of Materials Vol 2, 257 - 258.
On 27 April 2010, the respondent was dealt with for sexual penetration without consent. The circumstance of the offending, as found by Sleight J, are as follows. The respondent had been drinking at a friend's home. He answered the door to the victim who had come around to ask for cigarettes. Upon opening the door, the respondent asked the victim for sex, and she replied 'no'. The respondent then grabbed the victim around the neck, pulled her to the ground, placed his hand down her underwear and put his finger in the victim's vagina. The victim kneed the respondent in the groin and was able to get free and run away.[87] The respondent received a sentence of 16 months' imprisonment in respect of this offence.[88]
[87] Book of Materials Vol 2, 302 - 303.
[88] Book of Materials Vol 2, 304.
The respondent has been convicted of a significant number of violent offences, which are not serious offences under the HRSO Act, but demonstrate a similar pattern of alcohol abuse and use of violence as a coping mechanism, which I have summarised below.
On 14 November 2001, the respondent was dealt with for two counts of indecent assault. The respondent had been walking along when he saw two women. He approached one victim, aged 32, and placed his hand under her skirt, pinched her left buttock then rubbed his hand on the middle of her buttocks. Shortly afterwards, he walked past the second victim, aged 44, and grabbed her on the buttocks on the outside of her dress, dug his fingers in then released his grip.[89]
[89] Book of Materials Vol 1, 11; 20.
On 11 February 2002, the respondent was dealt with for two counts of assault occasioning bodily harm. The first count occurred on 23 November 2001, when the respondent awoke from sleeping and became angry that the victim (his de facto partner) did not have alcohol or money and slapped her to the back of her head with his open hand. He then obtained an electrical cord and hit the victim across her buttocks and leg, causing redness and welts. [90] The respondent received a sentence of 3 months' imprisonment.[91]
[90] Book of Materials Vol 2, 510.
[91] Book of Materials Vol 1, 8.
The second count occurred on 17 January 2002, when the respondent had been drinking and was joking around with the victim (his de facto brother-in-law). The victim hit the respondent because he had enough of the respondent's antics. The respondent then went inside and obtained an aluminium baseball bat and hit the victim on the arm.[92] The respondent received a sentence of 10 months' imprisonment for assault occasioning bodily harm.[93]
[92] Book of Materials Vol 2, 510.
[93] Book of Materials Vol 1, 8.
On 31 July 2007, the respondent was sentenced to 6 months and 1 day imprisonment suspended for 12 months in relation to an offence of common assault.[94] The respondent had been drinking the night before and argued with the victim, Ms S, who was the respondent's partner and was 7 months pregnant with his child. The respondent grabbed the victim by the back of the head with both hands, head-butting her to the face and knocking her to the ground. When she stood up the respondent grabbed the front of her shirt and punched her causing a nosebleed. The respondent attempted to punch the victim again but was restrained by another person.[95]
[94] Book of Materials Vol 1, 5.
[95] Book of Materials Vol 2, 499.
On 18 February 2008, the respondent was sentenced to 12 months' imprisonment for aggravated common assault.[96] On 18 August 2007, the respondent had been drinking and became angry with the victim, again Ms S, and punched her in the head, upper body and kicked her body.
She fled and hid inside a house. The respondent climbed through a window, dragged the victim to the front door and threw her down a small flight of stairs. He then dragged her to the next street and continued to kick, punch and stomp on her before being stopped by onlookers. [97][96] Book of Materials Vol 1, 5.
[97] Book of Materials Vol 2, 489.
On 13 January 2012, the respondent was sentenced to 12 months' imprisonment for aggravated assault occasioning bodily harm.[98] On 24 November 2011, the respondent had been drinking and was arguing with the victim when he punched her in the face, causing her to fall to the ground. He then kicked her to the face and body before being pulled away by a third person.
[98] Book of Materials Vol 1, 3.
On 21 March 2016, the respondent received a $2,000 fine for aggravated assault occasioning bodily harm.[99] On 23 August 2015, the respondent had become agitated at the victim, his then partner Ms D, when she distracted him, and the character he was playing in a video game died. He picked up a crutch on the floor and hit her to the side of the face before hitting her with his hands once to each side of the head. He followed her into the bedroom, grabbed her by the neck and slammed her into the bedroom wall then onto the bed. Once on the bed, he lay with her and told her to stop crying, to be quiet, and not to call out for help.[100]
[99] Book of Materials Vol 1, 2.
[100] Book of Materials Vol 2, 464.
The respondent has also been convicted of a number of offences involving breach of court orders including multiple breaches of bail and protective bail conditions, failure to comply with police orders and reporting obligations, and breach of a violence restraining order.[101]
[101] Book of Materials Vol 1, 1 – 15.
G. Evidence
I will now summarise the evidence of the witnesses who testified at the hearings before me, as well as the most relevant reports adduced by the State. A considerable volume of material was adduced in support of the Application, but it is unnecessary to refer to all of that material in detail, particularly as updated reports were provided as the matter progressed.
(1) Treatment programs
In 1998, the respondent completed the Pre-Release Sex Offender Treatment Programme. The program aimed to address such issues as respect, victim empathy, relationships, sexuality, substance abuse and domestic violence. The respondent's participation was reported to be minimal, and he found it difficult to deal with and reflect on the serious nature of the issue at times.[102]
[102] Book of Materials Vol 2, 531 - 532.
The respondent completed the Kimberly Offender Program in 1999 in which issues of alcohol, violence, anger, and self-awareness were covered.[103]
[103] Book of Materials Vol 2, 534 - 535.
In 2009, the respondent completed the Indigenous Men Managing Anger and Substance Use program. The respondent identified risks associated with getting into trouble including alcohol and drugs. He presented as reasonably reserved and 'not very vocal' on program activities however was stated to have participated well on many of the activities.[104]
[104] Book of Materials Vol 2, 538 - 539.
In 2012, the respondent participated in the Cognitive Brief Intervention Program. It was reported he appeared to understand the need to control his impulsivity, to identify possible consequences and could take on another's point of view at times.[105]
[105] Book of Materials Vol 2, 541.
A Treatment Assessment Report completed in 2020 described the respondent to have a very high risk of general offending and a high risk of violent or sexual offending. The respondent presented with cognitive distortions and questionable attitudes regarding women and control. He demonstrated a persistent antisocial attitude and sense of entitlement, especially in the context of his relationship and hostility towards women, specifically stating that 'men should dominate and control women' and that 'some women deserve to be raped'.[106]
[106] Book of Materials Vol 2, 547 - 550.
In 2020, the respondent participated in, but did not complete, the Pathways program. The respondent initially participated in 3 sessions, facilitated by two females, both of which reported they were uncomfortable and were potentially being groomed by the respondent. He was moved to another Pathways program and after the second class did not return.[107]
(2) Ms Maria Krabbe, Clinical Psychologist
[107] Book of Materials Vol 2, 560 – 561.
Ms Krabbe, who is a Senior Clinical Psychologist, prepared a report in relation to the respondent in July 2016 for the purposes of the respondent's sentencing on 10 October 2016. Despite the time period which has since passed, the opinions expressed by Ms Krabbe provide a useful insight into the respondent's motivations and a brief summary of that report is warranted.
Ms Krabbe found the respondent presented with difficulties understanding, despite English being his first language, and as such questions were modified and simple words and terms were used. She described the respondent as a 'concrete and simplistic thinker' and a poor personal historian. Due to the respondent's lack of schooling and problems with literacy, no formal or psychometrics testing was undertaken.[108]
[108] Book of Materials Vol 2, 441.
In relation to the index offending, Ms Krabbe found the respondent expressed limited remorse, victim empathy or insight, blaming his 'overreaction' on intoxication.[109] She stated that the respondent's domestic violence appeared to be fuelled by his constant intoxication, attachment problems and difficult trusting, his insecurities and fear of abandonment.[110]
[109] Book of Materials Vol 2, 442 - 443.
[110] Book of Materials Vol 2, 443.
Ms Krabbe reported that the respondent had a general negative view of women in relationships and 'likes to have control in a relationship and that he finds women 'difficult'. The respondent openly stated to Ms Krabbe that he tends to 'slap women across the face if they don't listen' and that arguments usually took place over jealousy issues or if his 'women aren't listening'.[111] Ms Krabbe reported the respondent felt justified to use violence against the victim due to his rage and belief that she had been unfaithful to him. [112]
[111] Book of Materials Vol 2, 442.
[112] Book of Materials Vol 2, 442 - 443.
Ms Krabbe found the respondent had few other skills to manage his emotions so resorts to violent behaviour as the main coping strategy outside substance abuse, which further exacerbates his anger and further disinhibits his already violent tendencies.[113]
[113] Book of Materials Vol 2, 443.
In assessing the respondent's risk of violent re-offending, the Spousal Assault Risk Assessment (SARA) guide was used as an aide. This guide utilises static factors to assess risk of future intimate partner violence. [114]
[114] Book of Materials Vol 2, 444.
Ms Krabbe identified the historical and, then present, risk and protective factors relevant to the respondent's risk of reoffending to be: a long history of substance use and alcohol dependency, significant history of physical and sexual violence, history of unstable and dysfunctional relationships, numerous past violations of community supervision and court orders, bail and escapes from detention, anti-social personality traits, sexual jealousy within his relationship, past physical assaults, recent escalation in severity of assaults, and negative attitudes towards women.[115]
[115] Book of Materials Vol 2, 444.
The respondent was administered the Static-99R, being a risk assessment instrument designed to assist in the prediction of sexual and violent recidivism for sexual offenders. The respondent's score placed him in the high risk category for re-offending in a violent manner.[116]
[116] Book of Materials Vol 2 444.
The STABLE-2007 was also utilised as a measure of dynamic sex offender risk factors. Based on this assessment, Ms Krabbe reported the respondent's treatment needs were related to a lack of pro-social supports, hostility towards women, impulsivity, limited capacity for relationship stability, sexual deviancy, poor problem solving, and poor cooperation with supervision. The most salient items were his scores for impulsivity, lack of concern for others, hostility towards women, and limited history of relationship stability.[117]
[117] Book of Materials Vol 2, 444.
When combined with the Static-99R assessment, the respondent was assessed to be a high risk of re-offending in a sexual manner.[118]
[118] Book of Materials Vol 2, 444.
Ms Krabbe formed the view that the respondent had extensive treatment needs in terms of substance abuse, domestic violence and repeat sexual offending. Suitable programs would need to be identified that were culturally appropriate for an Indigenous person and that could be tailored to his level of understanding.[119]
[119] Book of Materials Vol 2, 445.
The respondent reported as 'settled' in the prison environment, denied feeling anxious or depressed and appeared unaffected by the prospect of serving a further period of imprisonment (at that time).[120]
(3) Dr Ben Bannister - Forensic Psychologist
[120] Book of Materials Vol 2, 441, 445.
Dr Bannister is a Forensic Psychologist who prepared a report pursuant to s 74 of the HRSO Act.
Dr Bannister prepared this report with reference to his interview with the respondent and based on further materials including consultation with Ms Hasson, Dr Wynn Owen, Ms Cashmore and a review of their reports.
If the respondent was declared a High Risk Serious Offender and made subject to a CDO, Dr Bannister was of the view he would have access to various prison based treatment programs including the Pathways Drug and Alcohol Program, the Not Our Way program and the Intensive Sexual Offender Treatment Program.[121] If the respondent was declared a High Risk Serious Offender and made subject to a Supervision Order, Dr Bannister was of the view he would also have access to various community based family and domestic violence programs as well as the Pathways program.[122]
[121] Book of Materials Vol 3, 597.
[122] Book of Materials Vol 3, 597.
Dr Bannister noted the responsivity issues highlighted in Dr Elizabeth Vuletich's report in relation to both prison and community based programs and considered it possible the respondent could be deemed unsuitable to engage in treatment groups by program staff due to cognitive difficulties.[123]
(4) Dr Ryan Nichols - Paediatrician
[123] Book of Materials Vol 3, 598; see below para [163].
Dr Nichols is a paediatrician who has prepared a report for the Court pursuant to s 74 of the HRSO Act.
Dr Nichols conducted a paediatric consultation with the respondent on 13 July 2022. Additionally, Ms Alexandra Enright conducted a 'Speech and Language' consultation with the respondent for 1 hour on 29 July 2022. These consultations, along with the previously obtained neuropsychological assessment information reviewed by a forensic psychologist, were used in making this report.[124]
[124] Book of Materials Vol 4, 734 – 735.
In preparing this report, Dr Nichols also reviewed the court referral written by Ms Goode, the Neuropsychological Assessment Report by Dr Vuletich, the Psychiatric Report by Dr Wynne Owen, and the Books of Materials volumes 1 to 3.[125]
[125] Book of Materials Vol 4, 735.
Dr Nichols assessed the respondent for Foetal Alcohol Spectrum Disorder (FASD). During this, Dr Nichols found the respondent 'pleasant' and 'easy to engage'.[126] Dr Nichols found that the respondent only demonstrated one-third of the facial features associated with FASD, could not confirm prenatal alcohol exposure, and that the respondent had probably adult ADHD, but further assessment was required to confirm this.[127]
[126] Book of Materials Vol 4, 740.
[127] Book of Materials Vol 4, 740.
Ultimately, Dr Nichols found that the respondent did not meet the criteria for FASD. However, the respondent did demonstrate severe impairments in multiple domains, including as to cognition, attention, language, academic achievement and memory. Dr Nichols found that the respondent's cognitive deficits will affect his ability to communicate and learn, and that it will be important to take into consideration his current neuropsychological profile and cognitive limitations in interactions with him, and in planning of interventions.[128]
[128] Book of Materials Vol 4, 744.
Dr Nichols recommended the use of simple language which avoids uncommon words and technical jargon, and the use of visual cues to support instructions when possible.[129]
(5) Dr Elizabeth Vuletich - Consultant Clinical Neuropsychologist
[129] Book of Materials Vol 4, 746.
Dr Vuletich is a clinical neuropsychologist who prepared a report pursuant to s 74 of the HRSO Act. Dr Vuletich interviewed the respondent on 25 February 2022. A further observation and cognitive assessment was performed by Dr Vuletich on the same date.
It was noted by Dr Vuletich that given the respondent's reported academic difficulties and inconsistent education together with his cultural background, the typical standardised measures of premorbid intellect were of questionable validity and may underestimate true premorbid capacity.[130]
[130] Book of Materials Vol 3, 660.
The respondent's intellectual functioning was examined using the Wechsler Adult Intelligence Scale 4th edition (WAIS-IV). The core subtests from this instrument allows for calculation of four composite index scores, being Verbal Comprehension, Perceptual Reasoning, Working Memory and Processing Speed, as well as an overall Full Scale IQ score.[131]
[131] Book of Materials Vol 3, 660.
The respondent's weakest index was Verbal Comprehension scoring as Extremely Low. The respondent's Perceptual Reasoning and Working Memory indexes scored as Very Low, and Processing Speed index as Low Average. The Full-Scale IQ score was not calculated and not reported as in this instance Dr Vuletich stated it is likely to underestimate the respondent's overall intellect.[132]
[132] Book of Materials Vol 3, 660 - 661.
Dr Vuletich utilised the Weschler Individual Achievement Test - 2nd abbreviated Australian version to test basic numeracy and literacy. The respondent scored Extremely Low on the Numerical Operations, Word Reading and Spelling Subtests.[133]
[133] Book of Materials Vol 3, 661 – 662.
In relation to attention and working memory, Dr Vuletich described very clear deficits in verbal attentional capacity, that is, how much verbal information the respondent can hold, as well as impaired sustained attention, and mild inattentiveness to visual detail. The respondent's working memory was comparatively intact, but impacted by core deficits in attention.[134]
[134] Book of Materials Vol 3, 662.
The respondent's processing speed was fairly responsive with no obvious delays or slowness.[135] His nonverbal perception and visuospatial abilities, apart from fluctuation in visual attention to detail, appeared to Dr Vuletich to be broadly intact, although with moderate weakness in non-verbal reasoning.[136]
[135] Book of Materials Vol 3, 663.
[136] Book of Materials Vol 3, 663.
The respondent scored in the very low range for age on a Verbal Fluency task. Dr Vuletich reported that the respondent was able to comprehend what was said to him and he seemed to have no difficulty grasping verbal instructions or directions, however, he struggles to apply words in his reasoning and he has difficulties with generating fluent and detailed speech.[137]
[137] Book of Materials Vol 3, 664.
Dr Vuletich described the respondent's learning and memory tests as demonstrating a marked impairment in his capacity to encode new verbal information, that he is extremely vulnerable to intrusive errors when learning, and he then has difficulty in confidently recognising what he has learnt from other information.[138]
[138] Book of Materials Vol 3, 665.
Dr Vuletich assessed the respondent's executive functioning using several formal assessments and formed the view that the respondent did not show any behavioural signs of impulsivity or disinhibition, rather he came across as controlled and contained.[139]
[139] Book of Materials Vol 3, 665.
Dr Vuletich reported that the respondent appeared to struggle to differentiate true memories from other distracting or intrusive thoughts.[140]
[140] Book of Materials Vol 3, 667.
Dr Vuletich was of the opinion that the respondent presented with cognitive dysfunctions consistent with neurodevelopmental disorder. Contributing factors likely include possible exposure to alcohol in utero, early life trauma and issues of attachment, early and heavy alcohol use, lack of consistent educational instruction or support and potential effects of current health factors including pre-diabetes and possible sleep disturbance.[141]
[141] Book of Materials Vol 3, 668.
The respondent's results were at least partially, or even possibly better accounted for, by inadequate education making any potential diagnosis of learning disorder difficult.[142] In Dr Vuletich's opinion, the respondent may have undiagnosed Attention Deficit Hyperactivity Disorder (ADHD); however, the lack of early developmental history, and further potential neurological insults, makes diagnosis difficult.
[142] Book of Materials Vol 3, 668.
Further, Dr Vuletich was of the view that the respondent's verbal knowledge and lack of functional comprehension cannot be fully accounted for by lack of schooling and that an underlying communication or language disorder may be present.[143]
[143] Book of Materials Vol 3, 669.
Dr Vuletich stated a diagnosis of FASD was not open as the respondent's mother's alcohol use during pregnancy was only suspected and further, the present deficits were likely multifactorial rather than due to a single pre-natal factor. However, the respondent demonstrated deficits across multiple neurocognitive domains, which alongside other developmental and medical information, could potentially support a diagnosis.[144]
[144] Book of Materials Vol 3, 669.
Any neurodevelopmental issues that are present in the respondent were thought by Dr Vuletich to have been further exacerbated by the effects of heavy alcohol consumption, in particular early in the respondent's life during neurodevelopmental periods.[145]
[145] Book of Materials Vol 3, 669 - 670.
Dr Vuletich was of the view that the number of identified cognitive deficits in the respondent are likely to impact on his ability to fully comprehend, attend to, engage with, retain and flexibly apply new learning to his day-to-day life. Such that one-on-one sessions may be more appropriate than group learning, intervention should limit use of 'high' English and use short concise sentences, and any intervention should be fairly intensive, slow, highly repetitious and multimodal.[146]
[146] Book of Materials Vol 3, 670.
Even if the respondent successfully learns and remembers information Dr Vuletich expressed concern with his ability to recognise when he needs to apply learned strategy, self-monitor and adjust his behaviour in response to feedback and appreciate the potential outcomes of his actions, behaviours and choices.[147]
(6) Ms Julie Hasson - Consultant Forensic Psychologist
[147] Book of Materials Vol 3, 670.
Ms Hasson is a forensic psychologist who prepared reports pursuant to s 74 of the HRSO Act. Her reports are dated 10 January 2022[148] and 29 April 2024.[149] Ms Hasson gave oral evidence in support of her reports at the hearings on 5 April 2023 and 22 May 2024.
Report dated 10 January 2022
[148] Book of Materials Vol 3, 562 – 592.
[149] Book of Materials Vol 6, 877 – 886.
In her original report, which I will address first, Ms Hasson summarised the lengthy history of the respondent, including much of the information to which I have already made reference in these reasons. Ms Hasson had interviewed the respondent at some length and the information he provided was consistent with that provided to previous experts.[150]
[150] Book of Materials Vol 3, 563.
Ms Hasson reported there was no evidence the respondent had significant difficulties with memory, attention, concentration or the presence of formal thought disorder.[151] The respondent acknowledged and provided a limited account of his index offending and history of violent and sexual offending.[152]
[151] Book of Materials Vol 3, 564.
[152] Book of Materials Vol 3, 576 – 577.
In relation to the index offending, Ms Hasson stated the respondent provided limited insight into his own psychological and emotional processes; however, he was able to describe a pattern of rumination prior to these offences that in effect heightened his negative emotional state and increased resentment towards his partner, resulting in a reaction that was violent and sexual.[153]
[153] Book of Materials Vol 3, 576-577.
The respondent denied a primary sexual motive but indicated he sexually penetrated the victim to hurt her and make her feel bad. He also stated he would be able to tell if she had slept with another man because 'she would have been wet' and he would be able to 'smell another man'.[154]
[154] Book of Materials Vol 3, 576-577.
When asked by Ms Hasson about previous serious offending, the respondent described himself as being 'too dumb and too silly'. In relation to the offending committed in 1997 against his de facto partner's 8 year old sister, he reported not being able to control sexual urges, but denied having that issue in relation to any other of his previous offending.[155]
[155] Book of Materials Vol 3, 577.
The respondent's violent behaviour in relationships was described by Ms Hasson as ego-syntonic, that is relating to and being acceptable or in line with his fundamental personality and beliefs. Such that the respondent views violence towards women to be acceptable, to the extent the respondent expressed the belief that one of his partners 'wanted to stay' with him and 'get hit'.[156]
[156] Book of Materials Vol 3, 577.
The reports confirm that the respondent incurred two charges in prison relating to illicit substance use and possession of unlawful medication. He has been involved in a further 20 incidents predominately related to misconduct and on two occasions fights with other prisoners.[204]
[204] Book of Materials Vol 3, 636.
In 2004, the respondent was released on parole, for aggravated burglary however, the order was cancelled after he re-offended in a similar manner. Prior to the cancellation of this order, the respondent failed to report as directed for scheduled supervisions appointments and returned to alcohol misuse.[205]
[205] Book of Materials Vol 3, 636.
The respondent was again released on parole for aggravated unlawful assault in 2007. Within a month of release, the respondent re-offended against the same victim, being his then pregnant partner.[206]
[206] Book of Materials Vol 3, 636.
In 2011, the respondent was sentenced to a 12-month community-based order relating to a burglary offence. Ms Cashmore has stated that the records indicate that the respondent failed to report within the required 72 hours of the order being imposed, failed to appear on a further occasion as directed during a home visit, and then had no further contact with Community Corrections before being remanded in custody and convicted of breach of protective bail conditions and unlawful assault in circumstances of aggravation.[207]
[207] Book of Materials Vol 3, 637.
In discussions with the respondent, Ms Cashmore reported he presented with limited strategies to assist him in avoiding high risk situations. The respondent indicated to Ms Cashmore an intention to remain offence free however expressed that this would be dependent upon whether he remains single stating 'they might make me mad and then I'll do the same thing'.[208]
[208] Book of Materials Vol 3, 637.
The respondent initially proposed to Ms Cashmore (in the course of 2023) that he could reside with several family members, if released on a Supervision Order. There were a number of apparent difficulties with adopting a course by which the respondent resided in a remote community or with members of his family.[209] Various other accommodation options were explored by the Department and, as will be seen, ultimately an accommodation outcome was achieved through the Uniting WA program.
[209] Book of Materials Vol 3, 637 - 639.
The respondent does not currently have any proposed employment and will likely be the recipient of Centrelink payments, but he expressed a desire to Ms Cashmore to obtain employment upon release.[210]
[210] Book of Materials Vol 3, 642.
If released to a Supervision Order, the respondent would be subject to electronic monitoring, however Ms Cashmore also recommended the following conditions:
(1)reporting of any new friendships or relationships and if deemed necessary, disclosure of the respondent's previous offending to any new relationship;[211]
(2)prohibition from entering residential addresses in which a female resides or is known to reside, prohibition of any female entering his residence and not to be in any vehicle with any female without prior approval;[212]
(3)restriction on contact with female children under the age of 18 years;[213]
(4)urinalysis testing, restrictions on attending licensed premises and on consuming alcohol;[214]
(5)monitoring of electronic devices, namely mobile phone, to allow for the review of messages, calls and internet searches to verify the respondent's self-reporting in relation to association, friendships and relationships;[215] and
(6)curfew to assist in stability and structure.[216]
[211] Book of Materials Vol 3, 644.
[212] Book of Materials Vol 3, 644.
[213] Book of Materials Vol 3, 645.
[214] Book of Materials Vol 3, 645.
[215] Book of Materials Vol 3, 645.
[216] Book of Materials Vol 3, 644 - 645, 647 - 650.
In late 2023, the Court was informed by COMU that suitable accommodation for the respondent had been identified, through the Uniting WA program.[217] At that stage, a level of funding from the NDIS and the respondent's NDIS plan had also been confirmed,[218] but it remained necessary for the expert witnesses to undertake a further review of the proposed Supervision Order and for further reviews of the respondent and his behaviour in custody to be undertaken. This approach was reasonable in the circumstances, in my view, given the lapse of time which had occurred since the most recent examinations and assessments of the respondent.
[217] Updated Community Supervision Assessment dated 16 November 2023.
[218] NDIA letters dated 27 September 2023 and 3 October 2023.
The initial level of NDIS funding support was also considered by COMU representatives to be inadequate, given it lacked core support or daily support funding. As will be seen, the final approved funding under the NDIS included core supports.
Pursuant to s 74 of the HRSO Act, and for the purposes of the hearing on 22 May 2024, Ms Emma Cashmore also prepared an addendum Treatment Options Report (ATOR) dated 10 May 2024.[219] In her report, Ms Cashmore refers to the previous report of Ms Valerie Thatcher, dated 29 March 2023.
[219] Book of Materials Vol 6, 870 – 875.
Ms Cashmore noted that at the time of her ATOR the respondent had been re-assessed by Ms Hasson and Dr Wynn Owen and confirmed that in preparing the ATOR she had referred to the addendum report of Ms Hasson, but that Dr Wynn Owen's addendum report was not available.
(9) NDIS Plan
On 23 February 2024, the NDIA confirmed in writing to the respondent that it had approved a plan under the NDIS for him (the NDIS Approved Plan).[220] The NDIA confirmed that the respondent would receive funding for an initial 12 month period, which would continue 'until something changes', at which point the NDIA might need to change the plan.
[220] Exhibit I.
The plan approved by the NDIA included 'core supports' and 'capacity building supports', but no 'capital supports'. The nature of these supports is described within the NDIS Approved Plan. The respondent was to receive assistance with social, economic and community participation, together with transport support and, importantly, home and living support on a 24/7 basis. This latter support is designed to allow the respondent to live as independently as possible, through supported independent living assistance. Together with this, there would be 35 hours a week additional support for community and other supports when the respondent was not at home. These are all in the nature of what is described under the NDIS as 'core supports'.
The addition of 'capacity supports' is designed to build the respondent's independent and reduce his future need to rely on the same level of assistance. This includes behaviour support and improved daily living skills support.
The overall budget approved for the respondent in the NDIS Approved Plan was $675,995.79, which can be seen on the evidence presented, to allow a significant amount of assistance and supervision for the respondent if released into the community. I have detailed above the evidence of Dr Wynne Owen and Ms Hasson in relation to the significance of the NDIS Approved Plan and their belief that, with this funded plan, the respondent could comply with the conditions of a supervision order.
H. Disposition
(1) High risk serious offender
The State submitted that there was a sufficient basis on the evidence for the respondent to be declared to be a high risk serious offender. The risk identified by the State was that if the respondent was not made subject to a restriction order, he would recommence high risk behaviours including alcohol use and be an unacceptable risk of subsequently committing a serious offence in the future, which could be violent or sexual in nature.[221]
[221] AS [1] – [2] and [119] – [122].
The respondent conceded the State's contention that the respondent was a high risk serious offender for the purposes of the HRSO Act. Nonetheless, the issue remains one of the Court's consideration, on the evidence adduced on the Application.
When the evidence is analysed with regard to the factors identified in s 7(3) of the HRSO Act, there is a compelling basis to conclude that the respondent is at a high risk of both sexual and violent serious reoffending if he is not subject to an order under the HRSO Act. In the event the respondent were to reoffend, I consider it is likely that the serious offence would be in the nature of a sexual or violent offending against either an intimate female partner or other women in the vicinity through opportunistic offending, particularly while under the influence of alcohol.
Section 7(3)(a) and (b) - Any report prepared under s 74 and medical, psychiatric, psychological or other assessments relating to the offender
The evidence of Dr Wynne Owen was to the effect that the respondent presents as being at high risk of reoffending if he was not subject to a restriction order. That offence would be a serious offence, of a sexual or violent nature. When examined, the respondent had continued to expressed attitudes supportive of violence, and he lacked self-awareness.
The respondent had a number of historical risk factors, according to Dr Wynne Owen, including a history of serious problems with violence, antisocial behaviour, relationships, problems with employment, substance use, personality disorder, violent attitudes, treatment or supervision response and presence of a major mental disorder being a neurodevelopmental intellectual impairment.
On the evidence, I find that the respondent is at a high risk of committing a serious sexual or violent offence if he is not subject to a restriction order under the HRSO Act.
Section 7(3)(c) - Propensity to commit serious offences in the future
Propensity in the present context means that the offender has an inclination or tendency, a disposition to commit serious sexual offences, in a particular way, or upon a particular type of victim.
I am satisfied that the respondent has a disposition to commit serious sexual or violent offences, particularly against intimate female partners, and satisfies the test of propensity as it appears in s 7(3)(c).
This finding is supported by the respondent's criminal history, as outlined earlier in these reasons. The respondent has an extensive and sustained criminal history which has spanned over his developmental periods. That history shows a propensity for antisocial behaviour, aggression, sexual offences and violence, particularly when under the influence of alcohol.
Section 7(3)(d) - Whether there is any pattern of offending behaviour
I am satisfied there is a clear pattern to the respondent's behaviour of offending, in the context of his intimate relationships. There is a pattern of violent offending and sexual offending, as observed by Dr Wynne Owen.
Section 7(3)(e) and (f) - Participation in any rehabilitation program and effects
I conclude that the respondent has made limited attempts at rehabilitation during his periods in custody. The respondent has also shown little interest in engaging in such programs. The evidence reflects a conclusion that the respondent has limited capacity for treatment responses through such programs given his cognitive issues.
Section 7(3)(g) - Antecedents and criminal record
The respondent's serious criminal record has been detailed in these reasons. He has a history of serious and non-serious offending of both a violent and a sexual nature.
Section 7(3)(h) - Risk of committing such offences if not subject to a restriction order
The evidence of Dr Wynne Owen is to the effect that, having regard to various diagnostic tools, the respondent is at a high or elevated risk of sexual or violent re‑offending if he is not subject to restriction orders under the legislation. That risk is present where the respondent forms an intimate relationship, but absent such a relationship, there remains the risk of opportunistic sexual or violent assaults on women. In general terms, I accept the submissions advanced by the State in this regard.[222]
Section 7(3)(i) - The need to protect members of the community from the risk of further serious offences
[222] AS [91].
The State submits that the need to protect members of the community from the risk of further serious offences being committed by the respondent is self-evident.[223] I accept that submission. The respondent has, on the evidence, made limited treatment gains and has significant outstanding treatment needs. His alcohol abuse behaviours are well entrenched and I consider he presents a significant risk of re-offending in relation to mostly female intimate partners, but also to strangers in relation to whom opportunistic offending may occur.
Conclusion as to whether the respondent is a high risk serious offender
[223] AS [92].
To determine whether the respondent is a high risk serious offender, the Court is required to consider whether his risk of serious re‑offending is 'unacceptable'. This requires the Court to consider the nature of the risk, the likelihood of the risk materialising and the serious consequences for the respondent if a restriction order is made.[224] These are matters which have already been addressed above in these reasons, by reference to the various factors specified in the legislation.
[224] Italiano v The State of Western Australia [2009] WASCA 116; Director of Public Prosecutions (WA) v Williams [63].
In my view, the evidence presented by the State on this Application is to the effect that the respondent is at a high risk of serious sexual or violent offending in the future, unless he is restricted by the regimes in the HRSO Act. The respondent's re‑offending would be predominantly against female intimate partners but the range of potential victims is broader than that, as noted above. The likelihood is that the respondent's re-offending would cause serious psychological or physical harm, or both, to a victim, and may include life-threatening injuries. A high degree of control and supervision is required in relation to the respondent.
In all of these circumstances, I concluded that it was necessary to make a restriction order in relation to the respondent to ensure the adequate protection of the community against an unacceptable risk of the respondent committing a serious offence in the future.
In this regard, as this Court often acknowledges in matters such as this, I recognise the making of a restriction order would have serious consequences for the respondent, which I must consider as part of the evaluation for the purposes of the Application. A restriction order could involve the respondent's detention and loss of liberty, or his release into the community on a Supervision Order with associated conditions. The respondent's circumstances, including in particular his cognitive impairment, mean the respondent's ability to live independently in the community without appropriate supervision is unrealistic.
The paramount consideration under the HRSO Act is the need to ensure adequate protection of the community, which must take precedence over the serious consequences to the respondent of the court making an order, particularly given the high risk of the respondent engaging in serious sexual or violent offending in the future.
The view I accordingly formed was that the respondent was a high risk serious offender within the meaning of the legislation and I considered it was undoubtedly necessary to make a restriction order to ensure the adequate protection of the community against the respondent's unacceptable risk of committing a serious offence.
(2) Substantial compliance with the standard conditions
Given the conclusion the respondent is a high risk serious offender, the Court must then make either a CDO or a Supervision Order. The paramount consideration in this regard is the adequate protection of the community, which does not exclude the need to have regard to other considerations.
It is necessary, before the Court can make a Supervision Order, for the respondent to satisfy the Court on the balance of probabilities that he will 'substantially comply' with the standard conditions of such an order.[225] The relevant test to apply in this regard is that stated by Fiannaca J in DPP (WA) v Hart, which I need not repeat here.
[225] HRSO Act, s 29(2).
The ultimate position adopted by the State was that the Court may impose a Supervision Order, and it did not press for a CDO to be made. That position reflected the additional evidence adduced in the course of the various hearings which confirmed the availability of suitable accommodation in the community for the respondent and the evidence which indicated the respondent had been approved to access federal funding to support a high level of supervision. That is a submission I accepted, having formed the view that the respondent had, on the evidence presented by the State, discharged the statutory onus in s 29(2) of the HRSO Act.
One of the factors in this case which assisted me to form this conclusion was the level of support and supervision the respondent will receive through the NDIS Approved Plan, which I have summarised above, which involves quite intensive supervision of the respondent on a 24/7 basis. Absent such supervision, the strong risk factors associated with the respondent, as explained by Dr Wynne Owen and Ms Hasson, among others, arising from the attitudes of the respondent, his intrusive sexual thinking, his substance abuse, and his cognitive difficulties, would render problematic the ability of the respondent to discharge the statutory onus.
As to the length of the term of the Supervision Order, I note submissions were made on this issue by both parties. Recommendations from the mental health professionals who gave evidence were to the effect that a longer period for the Supervision Order would be appropriate, including 5 years and up to 10 years. That is a view I did not disagree with, however, the considerations arising from the continuation of the NDIS funding caused me to favour a conclusion that a shorter term was appropriate. I need not repeat in full, but I echo, the observations I made in a similar matter having regard to the manner in which NDIS funding is provided.[226] In essence, I considered that:
(a)Over a long period of time, there is a greater possibility that the funding available to support the respondent may decrease to the point that the protection of the community is simply not adequate enough to permit the respondent to remain within that community.
(b)There are safeguards in place to prevent the funding decreasing in this manner, and it is apparent that COMU would have adequate notice of such changes in any event.
(c)Nonetheless, as the NDIA is not a party to these proceedings and as I cannot discount the risk of this eventuality occurring, I harbour concerns about the imposition of a Supervision Order with a lengthy term.
[226] The State of Western Australia v White [No 7] [187] – [195].
For these reasons, I imposed a Supervision Order for a period of 3 years, adopting a cautious approach to the release of the respondent into the community having regard to the risks surrounding the continuation of the NDIS funding. I also considered that the imposition of stringent and extensive conditions on the Supervision Order was appropriate, which I have set out in Attachment A to these reasons. As I noted at the hearing on 24 May 2024, the conditions included a requirement that the respondent abide by any conditions and requirements of any NDIS provider or related provider which is providing the respondent with services and/or accommodation.
Conclusion
For foregoing reasons, I made orders to the following effect at the hearing on 24 May 2024:
1.Upon the coming into effect of the supervision order on 24 May 2024, the interim detention order made on 24 September 2021 would be rescinded pursuant to s 68(1)(b)(ii) of the HRSO Act.
2.Pursuant to s 48(1)(b) of the HRSO Act, the Court, having found that the respondent is a high risk serious offender within the meaning of s 7(1) of the HRSO Act, makes a supervision order in relation to the respondent, for a period of 3 years from 20 June 2024, on the conditions which are set out in Attachment A to these reasons.
3.The publication of the address of the accommodation in its entirety, including the region of Western Australia, in the conditions of the supervision order, and any information that may lead to the identification of that address, is prohibited until further order of the Court.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LM
Associate to Justice M Lundberg
31 DECEMBER 2024
ATTACHMENT A
SUPERVISION ORDER CONDITIONS
STANDARD CONDITIONS REQUIRED BY THE ACT:
Report to a Community Corrections Officer (CCO) at the East Perth Adult Community Corrections Centre, 30 Moore Street East Perth Western Australia (WA) within 48 hours of this Order being issued and advise the officer of your current name and address.
Report to and receive visits from, a CCO as directed by the court.
Notify a CCO of every change of the person's name, place of residence, or place of employment at least 2 days before the change happens.
Be under the supervision of a CCO, which includes, comply with any reasonable direction of the officer (including a direction for the purposes of sections 31 or 32 of the High Risk Serious Offenders Act 2020).
Not leave, or stay out of the State of Western Australia without the permission of a CCO.
Not commit a serious offence during the period of the Order.
Be subject to electronic monitoring under section 31 of the High Risk Serious Offenders Act 2020.
ADDITIONAL CONDITIONS:
Residence
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 a CCO assigned to you.
Reporting to the CCO and supervision by the CCO
Report to, and receive visits from, a CCO at times and at places as reasonably directed by the CCO and comply with the lawful orders and directions of a CCO.
Notify the CCO of any change of your name at least 2 working days before the change is due to happen.
Not commence or change paid or unpaid employment, education, training or volunteer work without the prior approval of the CCO.
Reporting to WA Police
Report to WA Police at times and at locations as directed by CCO or WA Police.
If requested, permit Police Officers permission to enter and search your residence 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 the Order.
Remain at your residence and/or vehicle when Police Officers conduct a search under the High Risk Serious Offenders Act 2020.
Disclosure and exchange of information
Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information.
Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history.
Restrictions on contact with Victims
Have no contact, directly or indirectly, with the victims of your offending unless such contact is conducted in accordance with agreements made through, or approved by, the Victim Offender Mediation Unit of Corrective Services.
Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times.
Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997.
Criminal conduct
Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments.
Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies, including, but not limited to cannabis, unless the drug has been prescribed for you by a person duly authorized under the Medicines and Poisons Act 2014 and your use is in accordance with the instructions of the provider.
Curfew
Be subject to a curfew, pursuant to s 32 of the High Risk Serious Offenders Act 2020, such that you are to remain at and not leave your approved address as reasonably directed by a CCO from time to time.
When subject to a curfew under this order, present yourself for inspection at the front door or front yard of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew.
When subject to a curfew under this order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew.
Attendance at programs or treatment
Attend, consult and engage with any medical practitioner, psychiatrist, psychologist, counsellor, mentor, support service and/or support person nominated by a CCO, as reasonably directed by a CCO.
Comply with the requirements of all programs designed to address your risk of serious re-offending, as reasonably directed by a CCO.
National Disability Insurance Scheme
Abide by any conditions and requirements of any National Disability Insurance Scheme (NDIS) provider or related provider, that is providing you with services and/or accommodation.
Medications and mental health
Undergo medical testing or treatment, including pharmacological treatment, to address your use of alcohol as reasonably directed by the CCO in consultation with any doctor or psychiatrist.
Permit any medical practitioner psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of re-offending and compliance with treatment to Corrective Services.
Prevention of high-risk situations
With the exception of public transport, not enter into, or onto, any vehicle (including taxis and rideshare vehicles such as Uber) with any female or where a female is present (whether that vehicle is under your control or not), unless the identity of such person is approved in advance by a CCO.
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 such person is approved in advance by a CCO.
Not to remain in the presence of any person who you know, or ought to know, to be affected by prohibited drug, unless the identity of such person is approved in advance by a CCO.
Not 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, or remove the person(s) consuming prohibited drugs from your residence.
Not enter any residential address in which a female resides or is known to reside, unless authorised in advance by a CCO.
Not permit any female to enter any residential address in which you reside, unless authorised in advance by a CCO.
Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO.
Not to possess, or consume, or purchase, or use alcohol.
Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or Police Officer including accompanying such persons to an appropriate location for such testing to take place.
Provide a valid sample pursuant to condition 38.
Not go to, or remain at, any licensed premises unless permitted or required to do so for the following reasons:
a.for the purpose of averting or minimizing a serious risk of death or injury to yourself or another person; or
b.for a purpose, and for a duration, approved in advance by a CCO; or
c.on the order of a CCO or Police Officer.
Have no contact with any female child under the age of 18 years, whether such contact is in person, in writing, by telephone or by electronic means, unless
a.the contact is authorised in advance by the CCO, and such contact is supervised at all times by an adult approved in advance by the CCO; or
b.the contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction, and another adult is present.
('Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication).
Where any unsupervised contact with a female child under the age of 18 years is initiated by the child, unless the contact is permitted under the condition immediately above, you must withdraw immediately from the presence of the child.
Provide the name, address, location and any details known by you of any contact with a female child under the age of 18 years both to your CCO and to the Police on the next occasion you report to that person or agency.
Report at your next contact with your CCO, the formation of any romantic, sexual or otherwise intimate relationship by you with any person.
Not form any romantic, sexual or otherwise intimate relationship with a person who has a female child, or female children under the age of 18 years in their care either full time or part time, without prior approval of a CCO.
As directed by your CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence a friendship, domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.
Advise a CCO of every computer, telecommunication and/or electronic device 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.
Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 47, without prior approval of the CCO.
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 47, or any online accounts, to any person other than a CCO or Police Officer.
Upon request, permit a CCO or WA Police 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 the CCO or WA Police 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 advance from a CCO.
Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunication and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police.
Have no contact with, membership of, or affiliation with clubs, associations or groups where membership is primarily for children, and to cease/cancel such memberships if reasonably directed to do so by a CCO or Police Officer.
Authorisation of the WA Police Force
Further, I authorise police officers from the Western Australia Police Force (WA Police Force) to access any cloud-based platforms or services associated with the devices I use, and to examine the internet accounts at any time for the purposes of monitoring my online behaviour (absent any investigation for any offence). I understand and acknowledge the WA Police Force will use passwords or tokens located within my devices to obtain access.
BY THE COURT
THE HONOURABLE JUSTICE LUNDBERG
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