The State of Western Australia v Colbung [No 2] - [2023] WASC 197

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- COLBUNG [No 2] [2023] WASC 197
CORAM:   MCGRATH J
HEARD:   23 MAY 2023
DELIVERED          :   9 JUNE 2023
FILE NO/S:   SO 3 of 2022
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
SHANNON SHAWN COLBUNG
Respondent

Catchwords:

Criminal law - High-risk serious offender - Application for restriction order - Whether unacceptable risk that respondent will commit a serious offence if not subject to a restriction order - Whether necessary to make a restriction order to ensure adequate protection of the community - Whether community can be adequately protected by a supervision order - Turns on own facts

Legislation:

High Risk Serious Offenders Act 2020 (WA), s 3, s 5, s 7, s 27, s 29, s 30, s 35, s 124, s 125

Result:

Supervision order made

Category: B

Representation:

Counsel:

Applicant	:	Ms F M Allen
Respondent	:	Ms E Hamilton

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Legal Aid

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

Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Hart [2019] WASC 4
Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Italiano v The State of Western Australia [2009] WASCA 116
The State of Western Australia v Latimer [2006] WASC 235

MCGRATH J:

The State of Western Australia seeks a restriction order in respect of Mr Colbung under s 48 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act).[1] The State contends that Mr Colbung is a high risk serious offender and that it is necessary that he be detained in custody for an indefinite term for control, care or treatment and, in the alternative, that should he be released, then he be subject to a supervision order under the HRSO Act.
[1] Application by the State of Western Australia dated 28 January 2022.
On 25 March 2022, Quinlan CJ heard the preliminary hearing and determined that there were reasonable grounds for believing that a Court might, in accordance with s 7, find that Mr Colbung is a high risk serious offender. Quinlan CJ ordered that the State's application for an interim detention order or interim supervision order be adjourned to another hearing. On 22 April 2022, Derrick J ordered that Mr Colbung be detained in custody under an interim detention order.
On 8 December 2022, the State Administrative Tribunal appointed the Public Trustee the guardian of Mr Colbung's estate under the Guardianship and Administration Act1990 (WA).
On 23 May 2023, the restriction order application was heard before me. The State submitted that placing Mr Colbung under a supervision order pursuant to s 27 of the HRSO Act for a period of five years will provide adequate protection to the community. I agree. I have determined that it is necessary that Mr Colbung be subject to a restriction order under the HRSO Act to ensure the adequate protection of the community against the unacceptable risk that he will commit a serious offence but that he may be released into the community subject to a supervision order. I am satisfied that Mr Colbung will substantially comply with the standard conditions of a supervision order and that those conditions will ensure the community is adequately protected from the risk that Mr Colbung will commit a serious offence.
In these reasons, I will consider the following:
1.The relevant legal principles.
2.The evidence received at the hearing.
3.A consideration of the factors under s 7 of the HRSO Act.
4.Assessment and conclusion.

Legal principles

High Risk Serious Offenders Act 2020 (WA)

The State may make an application for a restriction order where a person is a serious offender under custodial sentence pursuant to s 35 of the HRSO Act. The term 'serious offender under custodial sentence' is defined in s 3:
serious offender under custodial sentence means a person -
(a)who is under a custodial sentence for a serious offence; or
(b)who –
(i)is under a custodial sentence for an offence or offences other than a serious offence; and
(ii)has been under that sentence at all times since being discharged from a custodial sentence for a serious offence;
A 'serious offence' is defined by s 5 of the HRSO Act which relevantly provides:
5.Term used: serious offence
(1)      An offence is a serious offence if –
(a)     it is specified in Schedule 1 Division 1; or
(b)it is specified in Schedule 1 Division 2, and is committed in the circumstances indicated in relation to that offence in that Division.
(2)      An offence is a serious offence if –
(a)it was an offence under a written law that has been repealed; and
(b)the offender's acts or omissions that constituted the offence under the repealed provision would constitute a serious offence under subsection (1).
(3)An offence is a serious offence if it is an offence of conspiracy, attempt or incitement to commit an offence that is a serious offence under subsection (1) or (2).
Mr Colbung has committed offences that come within this category. Mr Colbung has also committed a number of offences that are not characterised as serious offences. Offences of other types may be relevant in assessing the risk of serious offending being committed in the future because other offences may be connected to behaviour which has the real potential to lead to serious offending.[2]
[2] Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246, [10].
At the time this application was made, Mr Colbung was serving a term of imprisonment for a 'serious offence' as defined by ss 3 and 5 of the HRSO Act.
Section 7(1) of the HRSO Act 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.
If the Court is satisfied that there is an unacceptable risk of the kind described in s 7(1) of the HRSO Act, it necessarily follows that the person concerned is a high risk serious offender.[3]
[3] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297, [66], [68] (Wheeler JA); Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307, [21] (Steytler P & Buss JA).
Section 7(2) of the HRSO Act provides that the State has the onus of satisfying the Court that a person is a high risk serious offender. The Court has to be satisfied 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, but is otherwise incapable of further definition.[4] This does not necessarily mean that the risk must be at some high percentage of probability; a risk may be less than 50% yet still be unacceptable. However, the Court must identify what it is that constitutes the risk and what makes it unacceptable, and then consider whether or not those factors have been proved to the requisite standard, being to a high degree of probability furnished by acceptable and cogent evidence.[5]
[4] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307, [28] (Steytler P & Buss JA).
[5] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307, [34] (Steytler P & Buss JA).
In The State of Western Australia v Garlett,[6] Corboy J identified that there is 'arguably a material difference between s 7(1) of the DSO Act, read with s 17, and s 7(1) of the HRSO Act, read with s 48', being the inclusion in s 7(1) of the requirement that the Court be satisfied that 'it is necessary to make a restriction order'. Corboy J stated:[7]
It is arguable that the words 'necessary to make a restriction order in relation to the offender to ensure adequate protection of the community' introduce a further evaluative element over and above an evaluation of whether the risk of an offender committing a serious offence is unacceptable.
[6] The State of Western Australia v Garlett [2021] WASC 387.
[7] The State of Western Australia v Garlett [2021] WASC 387, [135].
Corboy J recognised in The State of Western Australia v Garlett that the current form of s 7(1) requires that the need to ensure adequate protection for the community should form part of the Court's determination of whether the offender is a high risk serious offender (the first step in making a restriction order) and not merely be the paramount consideration in deciding what form of order should be made in respect of an offender who has been found to be a high risk serious offender (the second step).[8]
[8] The State of Western Australia v Garlett [2021] WASC 387, [18], [139].
In The State of Western Australia v D'Rozario,[9] Quinlan CJ agreed with Corboy J's construction of s 7(1) of the HRSO Act.
[9] The State of Western Australia v D'Rozario[No 3] [2021] WASC 412.
I also agree with Corboy J's construction of the HRSO Act. Therefore, the Court is required to make two evaluative judgments under s 7 of the HRSO Act being first, whether the risk of future offending is unacceptable and, second, whether it is necessary to make a restriction order to adequately protect the community. The Court could therefore find that it is not necessary to make a restriction order to adequately protect the community, despite the Court finding that the risk of future offending was unacceptable.
As Quinlan CJ observed, it would be a rare situation that the Court would find that it was not necessary to make a restriction order to adequately protect the community notwithstanding that it has been found that the risk of future offending was unacceptable.[10] Quinlan CJ gave the example:[11]
[O]ther external restraints on an offender (such as a post‑sentence supervision order under the SentenceAdministration Act 2003 (WA)) may provide adequate protection of the community against the unacceptable risk that the offender will commit a serious offence (such that a restriction order is not 'necessary').
[10] The State of Western Australia v D'Rozario[No 3] [2021] WASC 412, [21].
[11] The State of Western Australia v D'Rozario[No 3] [2021] WASC 412, [21].
A finding that there is an unacceptable risk involves a balancing exercise requiring 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 Mr Colbung if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order).[12]
[12] Italiano v The State of Western Australia [2009] WASCA 116, [46].
An unacceptable risk in the context of s 7(1) of the HRSO Act is therefore a risk which is unacceptable having regard to a variety of considerations. These may include the likelihood of the person offending, the type of serious offence which the person is likely to commit (if that can be predicted) and the consequences of finding that an unacceptable risk exists. I am required to consider whether, having regard to the likelihood of Mr Colbung offending and the offence to be committed, the risk of that offending is so unacceptable that, notwithstanding the fact that Mr Colbung has already been punished for the offences he has committed, it is necessary in the interests of the community to ensure that he is subject to further control or detention.[13]
[13] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297, [63] (Wheeler JA).
Section 7(3) of the HRSO Act sets out a number of matters that the Court must have regard to in considering whether a person is a serious danger to the community. Those matters are:
(3)In considering whether it is satisfied as required by subsection (1), the court must have regard to the following –
(a)any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section;
(b)any other medical, psychiatric, psychological, or other assessment relating to the offender;
(c)information indicating whether or not the offender has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by the offender;
(e)any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;
(f)whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;
(g) the offender's antecedents and criminal record;
(h)the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;
(i)the need to protect members of the community from that risk;
(j) any other relevant matter.
I note that s 7(3)(j) of the HRSO Act provides that the list of matters to be considered by the Court is not limited by those otherwise delineated in the subsection.
While s 7(3)(g) of the HRSO Act provides that the Court must have regard to the offender's criminal record in deciding whether a person is a serious danger to the community, the mere fact that a person has committed previous offences does not necessarily mean that there is an unacceptable risk that the person would commit a serious offence in the future. The relevance of a prior criminal record would depend on the nature of the offences committed, the number of offences, and the period of time over which they occurred. However, past behaviour is often a good indicator of future conduct.
If a Court determines that an offender is a high risk serious offender, then the Court is required to make a restriction order.[14]
[14] High Risk Serious Offenders Act 2020 (WA), s 48.
The term 'restriction order' is defined in s 3 of the HRSO Act to mean 'a continuing detention order' or 'a supervision order'. The terms 'continuing detention order' and 'supervision order' are defined in s 26 and s 27 respectively in similar terms to those that were used in the DSO Act.[15]
[15] Dangerous Sexual Offenders Act 2006 (WA), s 3.
Section 26 of the HRSO Act provides:
(1)In this Act a continuing detention order in relation to an offender is an order that the offender be detained in custody for an indefinite term for control, care, or treatment.
(2)A continuing detention order has effect in accordance with its terms from the time the order is made until rescinded by a further order of the court.
Section 27 of the HRSO Act provides:
(1)In this Act a supervision order in relation to an offender is an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate, in accordance with section 30.
(2)A supervision order has effect in accordance with its terms –
(a) from a date stated in the order; and
(b) for a period stated in the order.
(3)The date from which a supervision order has effect must not be earlier than 21 days after the date the order is made unless the court is satisfied that the implementation of the order from an earlier date is practically feasible.
In making a determination between those two alternatives, the paramount consideration is the need to ensure the adequate protection of the community.[16]
[16] High Risk Serious Offenders Act 2020 (WA), s 48(2).
However, other considerations do apply. The use of the word 'adequate' in the section indicates that a qualitative assessment is required. It cannot be assumed that the most preventative action is detention and that therefore, the protection of the community will always favour such an order.[17]
[17] Director of Public Prosecutions (WA) v Decke [2009] WASC 312, [14].
Given the more onerous nature of a continuing detention order, the scheme of the HRSO Act requires that the Court do no more than is necessary for the continuing control, care or treatment of the offender to achieve an adequate degree of protection of the community.[18]
[18] The State of Western Australia v Latimer [2006] WASC 235, [24]; Director of Public Prosecutions (WA) v Decke [2009] WASC 312, [15].
Section 29 of the HRSO Act provides that 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 the order. The onus of proof is on the respondent offender pursuant to s 29(2) of the HRSO Act.
The words 'will substantially comply with' should be given their ordinary meaning, consistent with the purposes of the legislation and the general conditions of a supervision order, the overall object of which is to achieve the adequate protection of the community by appropriate management and mitigation of the unacceptable risk that the respondent will commit a serious offence.[19]
[19] Director of Public Prosecutions (WA) v Hart [2019] WASC 4, [52].
The term 'standard condition', in relation to a supervision order, is defined by s 3 of the HRSO Act as meaning a condition that under s 30(2) must be included in the order. Section 30(2) of the HRSO Act provides seven conditions that must be included in any Court ordered supervision order. Therefore, Mr Colbung must satisfy the Court that he will substantially comply with those standard conditions before the Court can make a supervision order. The seven standard conditions set out in s 30(2) of the HRSO Act require that the person:
(a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender's current name and address; and
(b)report to, and receive visits from, a community corrections officer as directed by the court; and
(c)notify a community corrections officer of every change of the offender's name, place of residence or place of employment at least 2 days before the change happens; and
(d)be under the supervision of a community corrections officer and comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32); and
(e)not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and
(f)not commit a serious offence during the period of the order; and
(g)be subject to electronic monitoring under section 31.

Evidence

The State's evidence comprised the oral testimony of three witnesses, Dr Wojnarowska, Consultant Forensic Psychiatrist; Ms Hasson, Forensic Psychologist; Ms Serrano, Senior Community Corrections Officer.[20] The State tendered a Book of Materials that comprised the relevant documentary material, including reports.[21] Mr Colbung did not give evidence nor adduce evidence at the hearing.[22]
[20] ts 42-51 (23/05/2023).
[21] Exhibit 1, Book of Materials.
[22] ts 65 (23/11/20121).
I now turn to the matters relevant to determining whether or not Mr Colbung is a high risk serious offender pursuant to s 7 of the HRSO Act. I will do so by considering the evidence in the context of the factors under s 7 of the HRSO Act.

Factors under s 7 of the HRSO Act

History of offending and antecedents - ss 7(3)(c), 7(3)(d) and 7(3)(g)

In deciding whether a person is a high risk serious offender, the Court must have regard to the person's antecedents and criminal record. That requires that all prior offences be considered, to the extent that such offences are relevant to the question of whether the person is a high risk serious offender within the meaning of the HRSO Act (whether they be serious offences or not). It also requires consideration of the person's antecedents, including the context in which the past offences were committed.

The criminal record and antecedents are relevant in and of themselves but are also relevant to whether the person has a propensity to commit serious offences in the future.[23] The criminal record and antecedents are also relevant as to whether there is any pattern of offending behaviour.[24]

Antecedents

[23] High Risk Serious Offenders Act 2020 (WA), s 7(3)(c).

[24] High Risk Serious Offenders Act 2020 (WA), s 7(3)(d).

Mr Colbung is a 48‑year‑old Aboriginal man having been born on 23 October 1973 in Mount Barker. Mr Colbung's childhood was dysfunctional and deprived, marked by his father's alcohol abuse and intimate partner violence.[25] Mr Colbung not only witnessed violence he was also a victim of physical violence inflicted by both immediate and extended family members as well as rival family members arising from longstanding family feuds.
[25] Exhibit 1, Book of Materials, Report of Ms Hasson, p 564.
Mr Colbung describes his father as a very violent and aggressive man and that he was unable to identify a single happy memory of time spent with his father. However, Mr Colbung speaks of a close and loving relationship with his mother.
Mr Colbung completed his education in year 10 but had intellectual deficits at school that manifested with his difficulty reading and writing.[26] Mr Colbung has a limited employment history, having been in receipt of the disability pension for an extended period.
[26] Exhibit 1, Book of Materials, Report of Ms Hasson, p 564.
Mr Colbung has been in relationships and has one child, a 15 year old daughter. Mr Colbung acknowledges he has a history of alcohol and cannabis use.
On 28 October 2001, Mr Colbung was involved in a motor vehicle accident which resulted in him suffering significant spinal injuries and a closed head injury with left frontal lobe contusion. Mr Colbung suffered 38 days of post‑traumatic amnesia and one week in the acute ward at Royal Perth Hospital, before spending an extended period in rehabilitation in the Shenton Park Spinal Unit. An occupational therapy assessment was undertaken that determined Mr Colbung had pre-existing cognitive deficits but that his memory, speed of processing, language and comprehension had deteriorated. Since the accident, Mr Colbung has exhibited moodiness, paranoia, agitation and impulsive self-harming.
In 2009, Mr Colbung was assessed by Dr Lister, Consultant Psychiatrist, who diagnosed him with personality change due to brain injury ‑ combined type (labile, aggressive and paranoid); antisocial personality disorder, and alcohol abuse. However, Dr Lister found that there was no evidence of a major mental illness.
In 2011, Mr Colbung was admitted to the Frankland Centre after transferring from Hakea Prison as he was presenting in an agitated and paranoid state. Dr Steve Patchett, Consultant Psychiatrist, found no evidence of any psychotic or affective symptoms however, neuropsychological testing established an Intelligence Quotient score of 65 with evidence of significant frontal executive dysfunction.[27]
[27] Exhibit 1, Book of Materials, Report of Ms Hasson, p 567.
The cognitive deficits and the acquired brain damage he suffered as a result of the vehicle incident has impacted on Mr Colbung's ability to function independently in the community.
On 8 December 2023, the State Administrative Tribunal appointed the Public Advocate to be Mr Colbung's plenary guardian.

Relevant criminal history

Mr Colbung's offending involves offences committed in Western Australia. The offending history is summarised, in part, in a chronology of offending which was received in evidence.[28] I will outline the convictions, delineating the offending that may constitute serious offences under s 5 and sch 1 of the HRSO Act.

Offences that constitute serious offences under the HRSO Act

[28] Exhibit 1, Book of Materials, Chronology of offending, p 10-16.

On 4 October 2005, Mr Colbung was sentenced in the District Court with respect of one count of assault with intent to cause grievous bodily harm contrary to s 317A(b) of the Criminal Code, and two counts of sexual penetration of a child under 16 years of age contrary to s 321 of the Criminal Code.
The State submits that on the information available it appears that the assault with intent to cause grievous bodily harm occurred in the context of a large brawl following a football match between Mr Colbung's family and another family. During the brawl, two members of the other family were seriously injured with one person suffering life threatening injuries.
In respect of the two sexual penetration offences, the victim was a 15-year-old female who Mr Colbung met on the day of the offences. Mr Colbung invited the victim and her friend to a property and upon her arrival, he led the victim to a bedroom and commenced kissing and touching her. At that time, Mr Colbung then committed the offence of penile penetration and digital penetration. The victim requested that he stop but Mr Colbung continued by further indecently dealing with the child.
The learned judge imposed an immediate term of imprisonment of 12 months for those offences.
On 4 May 2011, Mr Colbung was sentenced in the Perth District Court on one offence of grievous bodily harm contrary to s 297 of the Criminal Code.
The offending involved an assault on an 85-year-old male who was unknown to Mr Colbung. The elderly victim, who was at the front of his property, was assaulted by Mr Colbung who commenced punching the victim to the head with a clenched fist. Upon the victim falling to the ground, Mr Colbung then stomped on his head several times with a steel cap boot before kicking him in the face. The learned sentencing judge imposed a term of imprisonment of 4 years and 3 months.
On 12 August 2020, Mr Colbung was sentenced in the District Court for one offence of wilfully lighting a fire likely to injure and endanger contrary to s 32(2)(a) of the Bush Fires Act 1954 (WA). The offending involved Mr Colbung threatening a neighbour the day before with the words 'I will get you in the morning'. The following day Mr Colbung attended at the victim's premises and lit a fire in the long grass on the property. The fire was extinguished by emergency services. The act of arson occurred in close proximity to a shed and during a high fire danger day. The learned trial judge imposed an 18 month term of imprisonment.

Other convictions that are not serious offences

Mr Colbung has been convicted of other offences which are not 'serious offences' under the HRSO Act.
On 22 May 2004 in the District Court, Mr Colbung was convicted of one offence of assault occasioning bodily harm contrary to s 317 of the Criminal Code. The facts comprised Mr Colbung and a co-accused driving a motor vehicle and observing the victim on the side of the road. Mr Colbung said the words 'let's get him'. The co-accused then chased the victim with a machete and hit the victim four times, hitting the victim in the hip and head. The learned judge imposed a 12 month community order with a $1000 undertaking.
On 4 November 2005, Mr Colbung was sentenced in the District Court of one offence of threatening to kill contrary to s 338B of the Criminal Code after producing a pair of scissors and holding them against the left side of a 13-year-old male victim's throat.
On 16 April 2007, Mr Colbung was sentenced in the Albany Magistrates Court of one offence of assault occasioning bodily harm contrary to s 317(1) of the Criminal Code. The victim was a sentenced prisoner who Mr Colbung struck a number of times with a wooden stake. The victim suffered a broken nose and a fractured eye socket, cheek bone and jaw.
Further, on 16 April 2007 Mr Colbung was sentenced in respect to two counts of assault occasioning bodily harm contrary to s 317(1) of the Criminal Code. The offending involved Mr Colbung striking a 21 year old female by hitting her with a belt causing a large cut to her nose. The second count involved Mr Colbung punching the victim to the head and then throwing a metal spanner at the victim but it did not connect.
On 16 March 2009, Mr Colbung was sentenced in the Albany Magistrates Court on one charge of common assault contrary to s 313(1)(b) of the Criminal Code. The offending involved Mr Colbung grabbing the 70-year-old male victim's throat and pushing his head backwards whilst he punched the victim to his knee, shoulder and eye.
On 1 December 2009, Mr Colbung was sentenced in the Albany Magistrates Court for one offence of common assault contrary to s 313(1)(b) of the Criminal Code. The offending involved Mr Colbung punching the victim once with his fist to the ear and subsequently throwing a rock at the victim, which fortunately missed.
On 13 July 2011, Mr Colbung was sentenced for one offence of doing an indecent act in public contrary to s 203(1)(a) of the Criminal Code, one charge of indecent assault contrary to s 323 of the Criminal Code and one charge of assault occasioning bodily harm contrary to s 317(1) of the Criminal Code. The indecent act in public offence involved Mr Colbung pulling up next to a victim in his car and exposing his penis. The indecent assault charge involved Mr Colbung approaching an unknown female stating that he 'liked her'. Mr Colbung then grabbed the victim by the shoulder and pulled her towards him into the corner of a carport where he forcibly kissed the victim on the cheek and tried to kiss her on the lips. The assault occasioning bodily harm charge involved Mr Colbung assaulting his 59-year-old female neighbour by forcibly striking the victim to the back of the head which caused her head to smash into a carport pillar. The victim lost consciousness and was bleeding profusely. The victim suffered a broken nose, a small fracture to her brow, cheekbone and had extensive bruising.
On 19 December 2011, Mr Colbung was sentenced in the District Court for one count of aggravated burglary contrary to s 313(1)(a) of the Criminal Code by entering the victim's residence whilst she was breast feeding. The victim told Mr Colbung to leave the premises five times but Mr Colbung refused, threatening the victim with a pair of scissors.
On 30 April 2018, Mr Colbung was sentenced for one charge of assaulting public officer contrary to s 318(1)(d) of the Criminal Code which involved Mr Colbung biting a police officer's arm twice, causing the victim to suffer a swollen weeping contusion.
On 17 September 2020, Mr Colbung was sentenced in the Magistrates Court for one charge of being armed or pretending to be armed in a way that may cause fear contrary to s 68(1) of the Criminal Code and one charge of common assault contrary to s 313(1) of the Criminal Code. The offending involved Mr Colbung assaulting a person unknown to him. Mr Colbung approached the victim yelling and swinging punches. Mr Colbung also bit the victim on his finger which caused bruising and broken skin. Mr Colbung's jaw had to be pried open by a witness before releasing the victim's finger. The victim required stitches to the laceration on his elbow and treatment to his finger.
On 18 February 2021, Mr Colbung was sentenced for one charge of assault occasioning bodily harm contrary to s 317(1) of the Criminal Code. The offending involved Mr Colbung punching the victim previously unknown to him to the head and face without provocation, causing the victim to suffer swelling and bruising and fractured nose and eye socket.
Mr Colbung has also numerous convictions for possessing prohibited drugs, possessing smoking implements, breaching bail conditions and driving with prescribed illicit substances or without an authorisation.[29]

Propensity to commit serious offences in the future - s 7(3)(c)

[29] Exhibit 1, Book of Materials, chronology of offending, p 10-16.

The word 'propensity' is taken to have its ordinary meaning in the context of the criminal law. In Director of Public Prosecutions (WA) v GTR, Murray AJA stated that:[30]
[Propensity] means that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of a quality of a diagnosable mental illness or personality disorder.
[30] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307, [178] (Murray AJA).
The State submitted that Mr Colbung's offending history is chronic and extensive, characterised by a number of serious offences. Further, Mr Colbung has committed a number of violent offences that do not constitute serious offences. I accept the State's submission that Mr Colbung has a propensity to commit 'serious offences'.

Whether or not there is any pattern of offending behaviour - s 7(3)(d)

The State submitted that Mr Colbung has demonstrated a consistent pattern of violent offending. I accept that submission. The periods during which Mr Colbung has not offended is explicable by him being incarcerated. There is a causal link between his offending and use of substances including alcohol, cannabis, solvents and methamphetamine.

Efforts to address offending behaviour and whether or not the participation in any rehabilitation program has had a positive effect ‑ ss 7(3)(e) and 7(3)(f)

I must also consider if Mr Colbung has made any efforts to address the cause or causes of his offending behaviour, including by participating in any rehabilitation programs. Further, whether or not the participation in any rehabilitation program has had a positive effect.
Mr Colbung has not engaged in any treatment programs for the reason that the State Government does not provide programs to persons who have cognitive difficulties.[31] In 2006, Mr Colbung was referred to the Sex Offenders Treatment Unit but he was found to be unsuitable for any further programs due to his cognitive difficulties.[32] In 2011, Mr Colbung was assessed as suitable to engage in the Legal and Social Awareness Treatment Program but the program booking was cancelled because he was transferred from Casuarina to Hakea Prison. In 2015, Mr Colbung was scheduled to participate in the Sex Offender Intellectual Disability Program but signed a participation waiver.

Psychiatric reports and extent to which Mr Colbung cooperated with psychiatric examinations - s 7(3)(a)

Dr Wojnarowska

[31] Exhibit 1, Book of Materials, Report of Ms Hasson, p 579.

[32] Exhibit 1 Book of Materials, Report of Ms Stagg, p 558.

Dr Wojnarowska, Forensic Psychiatrist, produced one report dated 19 September 2022 and also gave oral testimony at the hearing of the application.[33]
[33] ts 42-45 (23/05/2023).
Dr Wojnarowska stated that Mr Colbung engaged well in the interview but failed to recognise the seriousness of his offending behaviour.[34] Further, that Mr Colbung appeared to have no insight into his cognitive difficulties although he acknowledged that he would require significant supports in order to function in the community.[35]
[34] Exhibit 1, Book of Materials, Report of Dr Wojnarowska dated 19 September 2022, p 605.
[35] Exhibit 1, Book of Materials, Report of Dr Wojnarowska dated 19 September 2022, p 605.
Dr Wojnarowska diagnosed that Mr Colbung as having an anti-social personality disorder and an intellectual disability - mild (IQ 68) which onset during the developmental period. The intellectual disability includes both intellectual and adaptive functioning deficits in conceptual, social and practical domains.[36] Further, Mr Colbung suffered from personality change due to his head injury (labile, aggressive and paranoid subtype).[37] Mr Colbung fulfills the criteria for substance use disorder (alcohol, amphetamines, opioids and cannabis) but has been in remission since being incarcerated.
[36]Exhibit 1, Book of Materials, Report of Dr Wojnarowska dated 19 September 2022, p 606.
[37] Exhibit 1, Book of Materials, Report of Dr Wojnarowska dated 19 September 2022, p 607.
Dr Wojnarowska utilised the Static-99R instrument which assesses offenders in terms of their relative degree of risk for sexual recidivism based on commonly available demographic and criminal history information that correlates with sexual recidivism in adult male offenders. Dr Wojnarowska expressed the opinion that Mr Colbung's score on the Static-99R was 6, which placed him in the 'well above average risk'. In routine samples with the same score, the 5 year recidivism rate for persons with a score of 6 is between 25.7% to 30.3%.
Dr Wojnarowska also utilised the Hare Psychopathy Check-list-Revised (PCL-R), which assesses the extent to which an individual's personality structure conforms to the clinical construct of psychopathy. The PCL-R score is recognised as a useful indicator of likely future recidivism for general, violent offending. The score obtained from this test can be an important component of other risk assessment tools including structured clinical guides. Mr Colbung's score of 14 places him in the low range of the scale with elevations in factor 2, which is consistent with a diagnosis of Anti-Social Personality Disorder.[38]
[38] Exhibit 1, Book of Materials, Report of Dr Wojnarowska dated 19 September 2022, p 609.
Dr Wojnarowska utilised the HCR-20 v3 which is a broad-band violence risk assessment instrument with potential applicability to a variety of settings. The conceptual scheme of the HCR-20 v3 aligns risk markers into past, present and future. The future is recognised in the 5 Risk Management items, which focuses attention on situational post-assessment factors that may aggravate or mitigate risk. Dr Wojnarowska identified a number of historical, clinical and management risk factors including antisocial personality disorder with impaired insight, inhibited cognitive function, memory impairment, lack of education, substance abuse, intermittent psychosis, lack of employment and vulnerability to psychological stressors.[39]
[39] Exhibit 1, Book of Materials, Report of Dr Wojnarowska dated 19 September 2022, p 606, 609-613.
Dr Wojnarowska utilised the RSVP instrument which assesses persons who are known or are suspected of having a history of sexual violence. Dr Wojnarowska stated that Mr Colbung's sexual offending involved opportunistic acts that were 'highly impulsive, driven by sexual frustration and sexual disinhibition' and that 'it is likely that most if not all offences were committed at the time when he was intoxicated with alcohol and/or illicit substance'.[40] There is no evidence of sexual deviance.
[40] Exhibit 1, Book of Materials, Report of Dr Wojnarowska dated 19 September 2022, p 613-614.
Dr Wojnarowska expressed the opinion that Mr Colbung is at a high risk of re-offending in a violent and/or sexual manner, if not subject to the HRSO Act.[41] The risk scenarios include, whilst being under the influence of illicit substances or alcohol, he may encounter a female, aged from post-pubescent adolescent to young woman, and that he will attempt to engage in sexual activities. If the victim resists he is unlikely to use violence but may commit an indecent act. A further risk scenario is engaging in non-sexual violence against another person whilst intoxicated.[42]
[41] Exhibit 1, Book of Materials, Report of Dr Wojnarowska dated 19 September 2022, p 616.
[42] Exhibit 1, Book of Materials, Report of Dr Wojnarowska dated 19 September 2022, p 615.
Dr Wojnarowska stated that Mr Colbung's treatment needs may be managed in the community by addressing his communication style, relationships, coping skills, anger management and any cognitive distortions.
In her oral testimony, Dr Wojnarowska stated that the NDIS funding is a critical component of the supervision order.[43]

Psychological and other assessments - s 7(3)(b)

Ms Hasson

[43] ts 44 (23/11/2023).

Ms Hasson, Forensic Psychologist, provided a report dated 13 September 2022 and gave evidence at the hearing.[44]
[44] ts 42 - 55 (23/11/2021).

Ms Hasson assessed Mr Colbung using the Static-99R (2016) instrument and determined that his score of 7 placed him at well above average risk for being charged or convicted of another sexual offence. Mr Colbung's score is higher than 97.2% of routine samples of sexual offenders.
Ms Hasson assessed Mr Colbung using the RSVP and identified a number of risk factors including chronicity of sexual violence, diversity of sexual violence, psychological coercion in sexual violence, extreme minimisation or denial of sexual violence, problems with self-awareness, problems with substance abuse, violent ideation and problems with supervision.[45]
[45] Exhibit 1, Book of Materials, Report of Ms Hasson, p 583-587.
Ms Hasson assessed Mr Colbung using the PCL-R scale using both historical and dynamic data for the assessment of psychopathy. Ms Hasson identified risk scenarios for Mr Colbung reoffending including that he may use his physical strength to intimidate a victim into submitting to being sexual assaulted. Further, Mr Colbung may assault another person whether male or female following an argument, a perceived slight, or because he is upset. Ms Hasson also expressed the opinion that the risk scenarios involve assaulting a police officer or a member of a rival family. The scenarios identified by Ms Hasson are likely in the future if Mr Colbung does not manage his risk.[46]
[46] Exhibit 1, Book of Materials, Report of Ms Hasson, p 589.
Mr Hasson assessed Mr Colbung's risk for violent offending using the HCR‑20 v3.[47] Ms Hasson identified a number of factors including Mr Colbung's history of violence, serious difficulties establishing prosocial relationships, limited employment history, substance abuse, personality disorder, traumatic life experiences, violent attitudes, and not accepting that he is at a high risk of reoffending.
[47] Exhibit 1, Book of Materials, Report of Ms Hasson, p 589.
Ms Hasson expressed the opinion that Mr Colbung has not addressed his treatment needs in the domains of sexual violence, violence, substance abuse or cognitive skills deficit. Mr Colbung's treatment needs are significant and require intensive intervention in all domains. Regrettably, Mr Colbung has limited insight and understanding of internal and external risk triggers or cues to reoffending in a sexual or violent manner. He does not have a relapse prevention plan, nor has he developed or identified proven risk management strategies to moderate or mitigate risk.[48]

The risk that a serious offence will be committed if a continuing detention or supervision order is not made - s 7(3)(h)

[48] Exhibit 1, Book of Materials, Report of Ms Hasson, p 596.

The psychiatric and psychological evidence supports the finding that Mr Colbung is at a high risk of committing further serious offences. This assessment of risk takes into account his ongoing treatment needs. Mr Colbung has undertaken a number of treatment programs. However, it is clear that there is the risk that a serious offence may be committed if a continuing detention order or a supervision order is not made.

The need to protect members of the community from that risk - s 7(3)(i)

There is a need to protect the community from the risk that Mr Colbung will commit a serious offence under the HRSO Act.

Any other relevant matter - s 7(3)(j) - Community Supervision Assessment

Ms Nichol, Senior Community Corrections Officer at the Community Offender Monitoring Unit of the Department of Corrective Services, provided a community supervision assessment report dated 30 September 2022.[49]
[49] Exhibit 1, Book of Materials, Community supervision assessment report dated 30 September 2022, p 617‑640.
In May 2022, an occupational therapy functional capacity assessment was completed by an occupational therapist from Pivot Support Services.[50] The occupational therapist determined that Mr Colbung was unable to make reasonable judgments and incapable of looking after his own health and safety. The occupational therapist expressed the opinion that Mr Colbung would need significant funding for level 3 specialist support from the NDIS to, 'manage his transient nature and ensure consistent delivery of service, particularly with medication compliance'.
[50] Exhibit 5, Letter from Pivot Support Services dated 16 May 2023.
On 29 June 2022, a 12 month plan NDIS plan was approved, with an expiry date of 29 June 2023.
On 12 May 2023 a further NDIS plan was approved for Mr Colbung which provides significant support for Mr Colbung in the community.[51] On 16 May 2023, the NDIS determined to increase the amount of individual support to be provided to Mr Colbung in his home to assist in his transition into the community.[52]
[51] Exhibit 3, NDIS Plan Approval letter dated 12 May 2023.
[52] Exhibit 4, NDIS Home and Living Support determination letter dated 16 May 2023.
Ms Nichol outlines the proposed conditions of a supervision order which have been prepared after consultation with the expert witnesses. Both Dr Wojnarowska and Ms Hasson expressed support for the proposed conditions of the supervision order. Ms Nichol states that the proposed conditions include GPS monitoring and the enforcement of exclusion zones. Mr Colbung would be closely monitored and supervised by the members of the Risk Management Team including by home visits, liaison with community agencies and reviews of risk factors. Ms Nichol states that supervision and management will focus on assisting Mr Colbung to remain abstinent from alcohol and illicit substances and monitoring his relationships with others.[53]
[53] Exhibit 1, Report of Ms Nichols, p 632-635.
Ms Serrano, Senior Community Corrections Officer at the Community Offender Monitoring Unit of the Department of Corrective Services, provided a community supervision assessment report dated 16 May 2023,[54] and gave oral evidence at the hearing.[55] Ms Serrano stated that she conducted multiple interviews with Mr Colbung in April 2023. Mr Colbung remained focused on his potential release and engaged appropriately during all sessions.
[54] Exhibit 2, Updated Community Supervision Assessment Report dated 16 May 2023.
[55] ts 488-49 (23/05/2023).
Ms Serrano confirmed that Mr Colbung remains a participant in the NDIS and that the Public Trustee is the guardian of Mr Colbung's estate under the Guardianship and Administration Act1990 (WA). Ms Serrano confirmed that suitable accommodation has been secured for Mr Colbung's release into the community. The Desktop Spatial Analysis for the proposed address does not raise any issue that is an impediment to a finding that the address is suitable.[56]
[56] Exhibit 7, Desktop Spatial Analysis for proposed address as outlined in email from the State Solicitor's Office to the Court dated 22 May 2023.

Assessment

After considering the evidence in respect of the factors in s 7(3) of the HRSO Act, and finding that evidence to be acceptable and cogent, I am satisfied to a high degree of probability that Mr Colbung currently presents an unacceptable risk to the community that he would commit a serious offence. Further, I am satisfied that it is necessary to make a restriction order to adequately protect the community.
Therefore, I am satisfied that a restriction order must be made under the HRSO Act to ensure the adequate protection of the community against that risk.
I have made that finding for the following reasons.
First, Mr Colbung has an extended history of chronic offending characterised by violence inflicted upon members of the community.
Second, both Dr Wojnarowska and Ms Hasson expressed the opinion that Mr Colbung is at high risk of reoffending in a violent manner. I am of the view that the risk of violent offending in the future includes the risk of committing serious offences as defined in the HRSO Act. Mr Colbung's risk of reoffending is chronic. Mr Colbung has been imprisoned frequently for spontaneous acts of violence inflicted upon victims. He has not been able to reside in the community without engaging in offending behaviour. Mr Colbung's illicit substance abuse and the presence of antisocial attitudes increases the likelihood of him reoffending. I am satisfied that Mr Colbung, if not subject to the HRSO Act, will continue inflicting violence, including sexual acts, on other persons.
Third, Mr Colbung has significant outstanding treatment needs that are long standing and will require a significant and sustained effort to reduce his risk of reoffending in a violent manner.
Fourth, Mr Colbung has very limited insight into both his significant outstanding issues and his patterns of offending.
Fifth, Mr Colbung requires support in the community to address his criminogenic issues. The HRSO Act will assist in providing care to Mr Colbung whilst managing the risk that he will reoffend by committing a serious offence.

Continuing detention order or supervision order

I must now decide whether Mr Colbung should be detained pursuant to a continuing detention order or be released into the community under a supervision order.
The Court must choose the order that is the least invasive to Mr Colbung's liberty while ensuring an adequate degree of protection of the community.
In considering whether a supervision order will adequately protect the community, it is necessary to take into account any conditions which can be placed on a supervision order so as to ensure adequate protection of the community, the rehabilitation of Mr Colbung and his care and treatment and to ensure adequate protection of victims of offences committed by Mr Colbung.[57]
[57] High Risk Serious Offenders Act 2020 (WA), s 30(5).
I must also be satisfied on the balance of probabilities that Mr Colbung will substantially comply with the standard conditions of the order under s 29 of the HRSO Act. The onus is on Mr Colbung to satisfy the Court that he will so comply.
The evidence fully supports a finding that a supervision order will provide adequate protection of the community. In particular, Dr Wojnarowska and Ms Hasson expressed the opinion that the risk of reoffending may be managed in the community by a supervision order. Fortunately, Mr Colbung is being supported by the NDIS. It is clear that a great deal of planning is being undertaken by officers to ensure that Mr Colbung is supported and that the risk of reoffending is adequately managed in the community.
I consider that this is a case where the protection of the community may be properly and satisfactorily advanced by a supervision order rather than a continuing detention order. Further, I am satisfied on the balance of probabilities that Mr Colbung will substantially comply with the standard conditions of a supervision order as set out under s 30 of the HRSO Act.
In my view, there are conditions that may be imposed under a supervision order that will provide adequate protection of the community. The conditions that are to be imposed are outlined in the Supervision Order, which is attached as Annexure One. The conditions are extensive and serve to manage the risk in the community.
I have ordered that Mr Colbung will be released into the community in three months' time from the date of the orders. The three month period is required to ensure that all necessary arrangements are made for Mr Colbung's release into the community. The extent of the arrangements necessary to be undertaken was outlined by Ms Goode, Team Leader of the Community Offender Monitoring Unit, in a supplementary report,[58] and by Ms Serrano during her testimony.[59] The officers stated that a three-month period was required to finalise all necessary arrangements.
[58] Exhibit 7, Email from SSO outlining Ms Goodes report dated 22 May 2023.
[59] ts 50 (23/05/2023).

Conclusion

For the above reasons, I have determined that it is necessary to make a restriction order in relation to Mr Colbung to ensure the adequate protection of the community against the unacceptable risk that he will commit a serious offence. Further, I have determined that the risk of reoffending may be adequately managed in the community with the imposition of a supervision order for a period of five years. The terms of the supervision order are stated in Annexure One.

ANNEXURE ONE
SUPERVISION ORDER MADE BY THE HONOURABLE JUSTICE MCGRATH ON 9 JUNE 2023

Pursuant to s 48(1)(b) of the High Risk Serious Offenders Act 2020 (WA), the Court, having found that the Respondent is a high risk serious offender within the meaning of s 7(1) of the High Risk Serious Offenders Act 2020, makes a supervision order in relation to the Respondent, for a period of 5 years from 4 September 2023, not being a date not earlier than 3 months from the date this Order is made, on the following conditions:

You, SHANNON SHAWN COLBUNG, must:

STANDARD CONDITIONS REQUIRED BY THE HRSO ACT

Report to a Community Corrections Officer (CCO) at the East Perth Adult Community Corrections Centre, 30 Moore Street, East Perth, WA within 48 hours of the 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 business days before the change happens.
Be under the supervision of a CCO, which includes, comply with any reasonable direction of the officer (including direction for the purposes of s 31 or s 32 of the High Risk Serious Offenders Act 2020).
Not leave or remain 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 s 31 of the HRSO Act.

ADDITIONAL CONDITIONS

Residence

To reside at [redacted] and spend each night at that address or at a different address, but only if such different address is approved in advance by a CCO assigned to you.

Reporting to a CCO and supervision by a CCO

Report to a CCO at your approved release address within normal business hours on the day of release from custody under this order unless the CCO otherwise directs.
Be under the supervision of a CCO, report to, and receive visits from, a CCO at times and at places as directed by the CCO and comply with the lawful orders and directions of a CCO.
Not commence or change paid or unpaid employment, volunteer work, education, or training without the prior approval of the CCO.

Attendance at programs or treatment

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

Medications/Mental Health

Consult, engage, attend all appointments and receives visits from any medical practitioner, psychologist, psychiatrist, counsellor, mentor, support service and/or support person, nominated by a CCO, as directed by a CCO.
To engage with Community Forensic Mental Health Services or other mental health services as directed by a CCO and to obey the instructions of the treating psychiatrist with regard to treatment and medication.
Undertake any medication regime in accordance with a medical practitioner's direction, and to comply with all testing to monitor your compliance with that treatment as directed by a CCO.
Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of reoffending and compliance with treatment to the Department of Justice.
Permit any medical practitioner or medical practitioners to advise the CCO immediately if they become aware or suspect that you have or intend to cease undergoing treatment contrary to the advice of the medical practitioner or medical practitioners, or you have apparently ceased to consult with that medical practitioner or medical practitioners on such treatment.
To abide by any conditions and requirements of any National Disability Insurance Scheme (NDIS) provider/s that is providing you with any services and/or accommodation.

Reporting to WA Police

Report to the Officer-in-Charge of the Serious Offender Management Squad at the Hatch Building, 144 Stirling Street, Perth WA 6000, or another police station at the direction of Western Australia Police (WA Police), within 48 hours of your release from custody, and thereafter report to and receive visits from WA Police at times and at locations as directed by the Officer-in-Charge of the Serious Offender Management Squad or his/her delegate.
Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004.
If requested, permit Police Officers to enter and search your person, residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this Order and allow the seizure of any such items that the Police Officers reasonably believes to contravene the conditions of the Order.
Remain at your premises and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the provisions of the High Risk Serious Offenders Act 2020.
When requested, advise the WA Police of the names of all of your internet service providers, all mobile or landline telephone services used by you and all screen name(s), username(s), and email addresses. Further authorise WA Police to access any cloud based platforms or services associated with the devices you use and examine the internet accounts at any time for the purposes of monitoring your online behaviour (absent any investigation for any offence).

Disclosure/Exchange of Information

Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, inclusion 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 offending 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 the Department of Justice.
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 sexual or violent offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victims at all times.
Report to the CCO and WA Police any direct or indirect contact with the victims of your serious offending (including your sexual offending) on the next working day you report to the CCO or WA Police.

Criminal conduct

Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either sexual offences, violence, threats of violence, or the possession of weapons or offensive instruments.
Not commit an offence under s 202, s 203, s 204, s 557 of the Criminal Code (WA) or s 17(1) Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021.
Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996.
Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014, and your use is in accordance with the instructions of the prescriber.
Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997.

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 you approved address as directed by a CCO from time to time.

35,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.

Prevention of high-risk situations

Report at your next contact with your CCO, the formation of any social association (of more than 1 contact by any means), domestic, romantic, sexual or otherwise intimate relationship by you with any person.
As directed by your CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence an ongoing social association (of more than 1 contact by any means), domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.
Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place.
Provide a valid sample pursuant to condition 39.
Not purchase, or possess, or consume alcohol.
Not to enter, or remain at any licensed premises unless permitted or required to do so for the following reasons:
a)For the purpose of averting or minimising a serious risk of death or injury to yourself or another person.
b)For a purpose, and duration approved in advance by a CCO.
c)On the order of a CCO or Police Officer.
Not remain in the presence of any person who is affected by alcohol or prohibited substances, or you ought to know are affected by alcohol or prohibited substances, unless the identity of such person is approved in advance by the CCO.
Not remain in any place where prohibited drugs or alcohol 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 persons consuming prohibited drugs or excessive alcohol from your residence.
Advise a CCO or Police Officer 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.
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 45, or any online accounts, to any person other than a CCO or Police Officer or anyone they approve in advance.
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 or information, 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. this includes providing all screen name(s), username(s), and email addresses. 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 or information 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.
Not to be in possession of any firearm, any ammunition or any offensive or prohibited weapon, replica or dangerous article and not to apply for, acquire or hold a licence to possess any firearm, any ammunition or any offensive or prohibited weapon, replica or dangerous article.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NA
Associate to the Honourable Justice McGrath
9 JUNE 2023