The State of Western Australia v Corbett [No 8]
[2021] WASC 171
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- CORBETT [No 8] [2021] WASC 171
CORAM: FIANNACA J
HEARD: 10, 12 & 14 FEBRUARY 2020
DELIVERED : 31 MAY 2021
PUBLISHED : 14 JUNE 2021
FILE NO/S: SO 3 of 2012
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
TYRONE KINGSLEY CORBETT
Respondent
Catchwords:
High risk serious offender – Contravention proceedings – Supervision order rescinded – Continuing detention order granted
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 22
High Risk Serious Offenders Act 2020 (WA), s 53, s 55
Result:
Supervision order rescinded
Continuing detention order granted
Category: B
Representation:
Counsel:
| Applicant | : | Mr B D Meertens |
| Respondent | : | Mr D Jones |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Mr D Jones |
Cases referred to in decision:
Corbett v The State of Western Australia [No 6] [2019] WASC 37
Director of Public Prosecutions (WA) v Corbett [2012] WASC 438
Director of Public Prosecutions (WA) v Corbett [No 2] [2013] WASC 474
Director of Public Prosecutions (WA) v Corbett [No 3] [2014] WASC 442
Director of Public Prosecutions (WA) v Corbett [No 4] [2015] WASC 485
Director of Public Prosecutions (WA) v Hart [2019] WASC 4
Director of Public Prosecutions v Williams [2007] WASCA 206; (2007) 35 WAR 297
The State of Western Australia v ACW [No 2] [2020] WASC 480
The State of Western Australia v Corbett [No 5] [2017] WASC 115
The State of Western Australia v Corbett [No 7] [2019] WASC 318
The State of Western Australia v MBW [No 7] [2020] WASC 404
The State of Western Australia v Narkle [No 6] [2018] WASC 51
The State of Western Australia v Narrier [No 6] [2020] WASC 349
The State of Western Australia v Pindan [No 5] [2021] WASC 72
The State of Western Australia v ZSJ [2020] WASC 330
Table of Contents
The application and its history
Background to the application
Commencement of these proceedings
Respondent detained in custody pending determination of the application
Breach offences and amendment of particulars
Hearing of the application
Enactment of the HRSO Act
The manner in which the application is to be determined under the HRSO Act
The issues to be determined and the structure of these reasons
Statutory framework and legal principles
The essence of each party's case
The applicant's case
The respondent's case
The evidence in these proceedings
Assessment of witnesses
Historical context for the conditions of the 2019 supervision order
The respondent's history of sexual offending
Factors to be addressed by the conditions
The assessment in February 2019
Release of the respondent subject to the 2019 supervision order
Particulars of contraventions and other conduct relied upon by the applicant
The alleged contraventions – Relevant conditions
The conditions alleged to have been contravened
Other relevant conditions
The alleged contraventions - Consideration
Contravention 2: 27 March 2019 (charge PE 16018 of 2019)
Contravention 3: 20 May 2019 (PE 30720 of 2019)
Contravention 4: 20 May 2019 (PE 30721 of 2019)
Contravention 5: 11 March 2019
Contravention 6: 19 June 2019
Findings in respect of the contraventions
Other relevant behaviour that does not constitute a contravention
Particular (i) - 14 March 2019
Particular (ii) - 28 March 2019
Particular (iii) - 4 April 2019
Particular (iv) - 18 April 2019 and other dates
Particular (v) - 9 May 2019
Particular (vi) - 23 May 2019
Particular (vii) - 27 May 2019
Particular (viii) - 9 July 2019
Particular (ix) - 23 July 2019
Particular (x) - 8 August 2019
Particular (xi) - 9 March 2019 (information provided to mentor)
Particular (xii) - 11 April 2019 (termination of mentor service)
Particulars (xiv) and (xv) - 9 August 2019 (admission re use of cannabis)
Particular (xvi) - Incident of 7 August 2019
Ms Comery - Community supervision assessment
Ms Comery's approach to supervision of the respondent
Social supports in the community
Interviews with the respondent after his return to prison
Suitability of accommodation
Propositions put to Ms Comery in cross‑examination concerning the Department's approach
Ms Comery's assessment
The respondent's affidavit - Resolve to comply
Ms Matringe (Clinical Psychologist)
Ms Ballantyne (Forensic Psychologist)
Dr Bannister (Forensic Psychologist)
Summary of change since assessment in January 2019
The respondent's engagement in treatment
Risk assessment - VRSSO
Overall assessment
Risk scenario
Factors exacerbating the respondent's difficulty with compliance
Recommendations in relation to managing risk
Cross‑examination of Dr Bannister
Closing addresses
Respondent's submissions
Applicant's submissions
Consideration of the submissions
Whether additional conditions would sufficiently mitigate the respondent's risk
Findings
What the respondent needs to do
Conclusion
Orders
Annexure 1 – Extract from Amended Particulars
FIANNACA J:
The application and its history
This is an application that was commenced under s 22 of the Dangerous Sexual Offenders Act 2006 (WA) (the DSO Act) in respect of contraventions by the respondent of conditions of a supervision order made under the DSO Act. The application now comes to be dealt with under s 53 and s 55 of the High Risk Serious Offenders Act 2020 (WA) (the HRSO Act).
Background to the application
From March 1993 to February 2006 the respondent was convicted of and sentenced for a number of sexual offences. His first conviction was when he was 14 years old in respect of an offence committed when he was 13. All of his offending involved women who were known to him. Some of them were related to him. His offending involved violence and, in some cases, the deprivation of the victim's liberty.
The last sentence imposed on the respondent for such offending was a term of 7 years' imprisonment, which was backdated to commence on 9 August 2005.
Before that term ended, the Director of Public Prosecutions for Western Australia (the DPP) commenced proceedings under the DSO Act for an order that the respondent be subject to a continuing detention order (CDO) or a supervision order, if released, on the basis that he was a serious danger to the community, in that there was an unacceptable risk that, if he was not subject to such an order, he would commit a serious sexual offence.
On 16 November 2012, McKechnie J found that the respondent was a serious danger to the community and, pursuant to s 17(1) of the DSO Act, ordered that, when not in custody, the respondent be subject to a supervision order for a period of six years.[1] However, before the respondent could be released on a supervision order, it was necessary that stable accommodation be available, as that affected the determination of whether the respondent's risk to the community was acceptable. Such accommodation was not available at the time of his Honour's decision. However, suitable accommodation had been identified and was expected to be available early in 2013. The matter was adjourned until that accommodation became available, at which time the court would make a formal supervision order.[2] The accommodation became available in January 2013, and the respondent was released on a supervision order on 18 February 2013 (the original supervision order).[3]
[1] Director of Public Prosecutions (WA) v Corbett [2012] WASC 438 (Corbett).
[2] Corbett [58] ‑ [60].
[3] See Director of Public Prosecutions (WA) v Corbett [No 2] [2013] WASC 474 (Corbett [No 2]) [3].
The history of the respondent's performance on the original supervision order and a subsequent amended supervision order was outlined by Hall J in Director of Public Prosecutions (WA) v Corbett [No 4].[4] I have adopted his Honour's outline, with some elaboration, in the following summary.
[4] Director of Public Prosecutions (WA) v Corbett [No 4] [2015] WASC 485 (Corbett [No 4]) [6] ‑ [9].
After a period of time in the community subject to the original supervision order, the respondent was charged with 11 offences of contravening the conditions of that order, contrary to s 40A of the DSO Act. He pleaded guilty to seven of the charges and was found guilty of a further two.[5] The offences included breaching the curfew condition, permitting other people to remain at his residence contrary to the directions of a Community Corrections Officer (CCO), failing to attend a scheduled counselling session with a psychologist and failing to attend a scheduled meeting with a CCO. He was sentenced to a total effective sentence of 7 months' imprisonment for those offences, commencing on 31 July 2013.
[5] Corbett [No 2] [17], [24].
The DPP did not seek an order rescinding the original supervision order at that time. There was evidence that the respondent had reflected on the need to comply with the conditions, had engaged well with his treating psychologist and was motivated to comply with the original supervision order if released. In those circumstances, Corboy J amended the original supervision order (the amended supervision order).
The respondent was released on the amended supervision order on 24 March 2014. One of the amendments was to a condition requiring him not to be in the presence of females who were consuming alcohol. Corboy J amended that condition in order to make it more readily understandable by the respondent.
On 16 April 2014, the respondent again breached the conditions of the amended supervision order. He was charged with three offences contrary to s 40A(1) of the DSO Act. In addition, the DPP commenced contravention proceedings under s 22 of the DSO Act, being an application for an order under s 23 that the respondent be indefinitely detained (i.e. that the court make a CDO) on the basis of his contraventions and/or likely contraventions.[6]
[6] The orders that could be made by the court under s 23 of the DSO Act, as it was at that time, were (a) an order rescinding the supervision order and making a CDO; or (b) an order amending the supervision order or extending the period for which the respondent would be subject to the supervision order.
On 15 May 2014 the respondent pleaded guilty to the three charges. The offences involved breaching a curfew condition, being in the presence of a female whom he knew to be intoxicated, and possessing and using alcohol. On 27 June 2014 the respondent was sentenced to a total effective sentence of 8 months' imprisonment backdated to commence on 17 April 2014, when he first went into custody. The application for an order under s 23 was not dealt with at that time, as the respondent sought an adjournment of the application to a later date to allow him to engage with a psychologist while serving his sentence.
The application was subsequently dealt with on 25 November 2014 by Hall J. His Honour was satisfied the respondent had contravened a condition of the amended supervision order and that, at that time, a supervision order would no longer provide adequate protection of the community against the unacceptable risk that the respondent would commit a serious sexual offence. Consequently, Hall J made a CDO in respect of the respondent.[7]
[7] Director of Public Prosecutions (WA) v Corbett [No 3] [2014] WASC 442.
On 16 December 2015, Hall J conducted the first annual review of the continuing detention of the respondent, in accordance with s 29 and s 33 of the DSO Act. On 17 December 2015, his Honour affirmed the CDO on the basis that the respondent continued to be a serious danger to the community and it was necessary for the respondent to remain in detention to ensure adequate protection of the community, as his risk of reoffending could not be adequately managed if he was released on a supervision order at that time.[8] His Honour acknowledged that the respondent had made some progress in the previous year, at least in regards to motivation, but was of the view that he had not yet reached a stage where release was a practical option, as there were no conditions that could be imposed at that time that would reduce the risk of reoffending to an acceptable level.[9]
[8] Corbett [No 4] [49].
[9] Corbett [No 4] [49].
Hall J subsequently conducted the second annual review of the continuing detention of the respondent on four hearing dates from 19 December 2016 to 10 April 2017, again in accordance with s 29 and s 33 of the DSO Act. At the conclusion of those proceedings, Hall J was satisfied that the respondent continued to be a serious danger to the community, but found that over the previous 12 months he had addressed a number of the factors that were relevant to his risk of reoffending. I will say more about his Honour's findings later, in dealing with the salient issues in assessing the respondent's risk of sexual reoffending. It is sufficient at this stage to say that, in essence, it appears Hall J would have considered the respondent suitable for release on a supervision order, in that there were conditions that could have been imposed that would have reduced the respondent's risk of sexual reoffending to an acceptable level, if there had been suitable accommodation available. However, there was no suitable accommodation available, and his Honour was bound to conclude that that a supervision order was not a viable option at that time.[10]
[10] The State of Western Australia v Corbett [No 5] [2017] WASC 115 (Corbett [No 5]) [72] ‑ [83].
The respondent subsequently sought leave to make an application for an 'exceptional review' of his continuing detention, pursuant to s 30 of the DSO Act on the basis that suitable accommodation had become available. Leave was granted on 18 December 2018, and the exceptional review was conducted by Hall J on 8 February 2019. At the conclusion of the review, his Honour made a supervision order (under s 33(1)(b)(ii) of the DSO Act), which came into effect on 5 March 2019 (the 2019 supervision order).[11]
Commencement of these proceedings
[11] Corbett v The State of Western Australia [No 6] [2019] WASC 37 (Corbett [No 6]).
It is alleged that the respondent subsequently contravened a number of conditions of the 2019 supervision order on a number of occasions. On that basis, the DPP commenced the present contravention proceedings under s 22 of the DSO Act, being an application (as amended on 23 and 26 August 2019) for orders as follows:
(1)Upon the Court being satisfied that the respondent has contravened a condition of the [2019 supervision order], an order that the supervision order be rescinded, and a CDO be made in relation to the respondent;
(2)In the alternative to (1), upon the Court being satisfied that the respondent is likely to contravene a condition of the [2019 supervision order], an order that the supervision order be rescinded, and a CDO be made in relation to the respondent;
(3)In the alternative to (1) and (2), upon the Court being satisfied that the respondent has contravened a condition of the [2019 supervision order], and subject to section 23(1)(b) [of the DSO Act], an order that the supervision order be amended in such terms as the Court thinks fit;
(4)In the alternative to (1), (2) and (3), upon the Court being satisfied that the respondent is likely to contravene a condition of the [2019 supervision order], and subject to s 23(1)(b) [of the DSO Act], an order that the supervision order be amended in such terms as the Court thinks fit; and
(5)An order under s 22(2)(b) of the [DSO Act] that the respondent be detained in custody whilst these proceedings are pending (interim detention order).
The respondent was arrested by WA Police on 7 August 2019 on suspicion of having contravened the 2019 supervision order, in circumstances which I will outline later. He was charged with an offence of contravening a requirement of a supervision order without reasonable excuse, under s 40A of the DSO Act, and was remanded in custody. He was subsequently charged with three other offences under s 40A.
In addition, the Community Offender Management Unit (COMU) of the Department of Justice filed an application for an arrest warrant in respect of the respondent under s 21 of the DSO Act (which has effect when a person is suspected of being likely to contravene, is contravening or has contravened a condition of a supervision order). That application was listed for hearing on 9 August 2019. Although it is not clear whether a warrant issued, the respondent remained in custody on remand for at least one of the s 40A charges at the time of his first appearance in respect of the present application on 26 August 2019, before Hall J.
Respondent detained in custody pending determination of the application
Pursuant to s 24A(2) and (3) of the DSO Act, as the respondent was in custody, the court could make an order releasing the respondent only if it was satisfied on the balance of probabilities that releasing the respondent was justified by exceptional circumstances and that the respondent would substantially comply with the standard conditions of the 2019 supervision order.[12] The onus of proving exceptional circumstances and that he would substantially comply with the standard conditions of the 2019 supervision order was on the respondent.
[12] DSO Act s 24A(3).
The respondent applied for an order under s 24A(2)(a) that he be released from custody. The application was heard by Hall J on 28 August 2019. On 6 September 2019, his Honour refused the application and published his reasons.[13] His Honour was satisfied there were exceptional circumstances, in that it was inevitable that, if not released, the respondent would lose the accommodation that had been available to him, and that, if found suitable for release on a supervision order at the conclusion of the contravention proceedings, he may be unable to be released due to the unavailability of any alternative accommodation.[14] However, his Honour was not satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions of the 2019 supervision order if released.[15] In particular, his Honour was 'not satisfied that [the respondent] would substantially comply with the conditions regarding supervision by a community corrections officer and compliance with all reasonable directions issued by such an officer.'[16]
[13] The State of Western Australia v Corbett [No 7] [2019] WASC 318 (Corbett [No 7]).
[14] Corbett [No 7] [50].
[15] Corbett [No 7] [51].
[16] Corbett [No 7] [51].
Consequently, the respondent has remained in custody pending the determination of the present application.
Of course, Hall J's decision and reasons in Corbett [No 7] do not bind me in the determination of whether the respondent would substantially comply with the standard conditions of a supervision order or whether such an order would provide adequate protection of the community. His Honour's decision was made in respect of a preliminary issue on the basis of preliminary information, before the evidence in the application was given in full and tested. However, as will appear below, I agree with his Honour's analysis of the significance of certain aspects of the respondent's conduct while subject to the 2019 supervision order, particularly in respect of the way in which they relate to the risk of further serious sexual offending by the respondent.
Breach offences and amendment of particulars
Before the hearing of the application in this Court, the respondent pleaded guilty in the Magistrates Court to three of the charges under s 40A of the DSO Act. He was convicted of the offences and sentenced on 17 April 2019 and 31 July 2019. He was fined in respect of each of the offences. The fourth charge, in respect of an alleged contravention on 7 August 2019, was subsequently discontinued. The incident that gave rise to that charge was initially relied upon by the applicant as a particular of the contraventions alleged for the purposes of these proceedings, referred to as Contravention 1. That particular was withdrawn before the application was heard in this Court. However, the applicant relied on the circumstances of that incident as evidence of increased risk, notwithstanding that the conduct was not relied upon as a contravention.
Hearing of the application
The hearing of the application proceeded before me on 10, 12 and 14 February 2020. At the conclusion of the hearing, on 14 February 2020, I reserved my decision. I regret the delay in delivering my decision. Given the time that had elapsed, email correspondence was sent to the parties by my associate on 24 February 2021, enquiring as to whether either party wished to put before the court by consent any updated information concerning the respondent's period in custody, which might affect the issues to be determined. The applicant, which is now represented by the State Solicitor,[17] ultimately informed the court on 9 April 2021 that it did not wish to adduce any further evidence. The respondent's counsel informed the court on 24 February 2021 that he was seeking instructions and would respond. After a number of emails from my associate seeking an update, the respondent's counsel again informed the court on 9 April 2021 that he was seeking instructions and would respond. There has been no update from the respondent since that date in respect of this matter. In the absence of any indication from the respondent that he wishes to put updated information before the court, I have determined the application on the basis of the evidence presented in February 2020.
[17] On 23 December 2020, the State Solicitor's Office took over carriage of the matter from the DPP.
However, the matter is now to be determined under a new legislative scheme.
Enactment of the HRSO Act
On 9 July 2020, the HRSO Act received the Royal Assent, as a result of which pt 1 of the HRSO Act came into effect.[18] Other parts of the HRSO Act that are relevant to these proceedings came into force on 26 August 2020 (commencement day)[19] by virtue of proclamation pursuant to s 2(1)(c) of the HRSO Act.[20] Upon commencement of those parts of the HRSO Act, the DSO Act was repealed.[21]
[18] HRSO Act s 2(1)(a) and Compilation table.
[19] The term 'commencement day' has relevance for the purposes of s 124, and is defined in s 122 to mean 'the day on which this section comes into operation', which, by virtue of s 2(1)(c) and the proclamation referred to below, was 26 August 2020.
[20] High Risk Serious Offenders Act 2020 Commencement Proclamation 2020 cl 2 (SL2020/131; Government Gazette, WA, 14 August 2020, p 2619).
[21] HRSO Act s 123.
However, by s 124(1) of the HRSO Act, as the application made under the DSO Act in these proceedings had not been finally determined by the commencement day, the application and these proceedings continue and may be determined under the HRSO Act, and for the purposes of determining the application under the HRSO Act, the application is taken to have been made under the corresponding provision of the HRSO Act. Further, by s 125, if an order made or direction given under the DSO Act is in effect on commencement day, it continues in effect and is taken to have been made or given under the corresponding provision of the HRSO Act.
The objects of the HRSO Act are:
(a)to provide for the detention in custody or the supervision of high risk serious offenders to ensure adequate protection of the community and of victims of serious offences; and
(b)to provide for continuing control, care or treatment of high risk serious offenders.[22]
[22] HRSO Act s 8.
An offender is a high risk serious offender 'if the court dealing with an application under [the HRSO Act] finds that it 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'.[23] A 'restriction order' is a CDO or a supervision order, both of which are defined in similar terms as in the DSO Act.[24]
[23] HRSO Act s 7(1).
[24] HRSO Act s 3 (definition of 'restriction order'), s 26 ('detention order') and s 27 ('supervision order').
As I noted in The State of Western Australia v ZSJ,[25] the overall effect of the HRSO Act is to widen the scope of the regime that previously applied in respect of persons who came within the description 'dangerous sexual offenders' in the title of the DSO Act to other offenders considered to be 'high risk serious offenders' in accordance with the meaning referred to in the preceding paragraph. The widening of the previous regime is achieved by the definition of 'serious offence'.[26] In addition to offences that previously came within the definition of 'serious sexual offence' under the DSO Act, Parliament has determined that there are numerous other offences (most of which involve violence or some other particular danger to the community) from which the community requires protection by the making of a restriction order if there is an unacceptable risk the offender will commit such an offence.
[25] The State of Western Australia v ZSJ [2020] WASC 330 (ZSJ).
[26] HRSO Act s 3, s 5 and sch 1.
Although its scope is wider, the HRSO Act operates largely as the DSO Act did in respect of serious sexual offences.[27] Whereas previously the making of a CDO or supervision order in respect of a respondent depended on a finding that he was a 'serious danger to the community', the court must now find that he is a 'high risk serious offender'. Again, it is sufficient to note at this stage that the basis upon which the respondent in these proceedings was found to be a serious danger to the community in previous proceedings under the DSO Act would have been a sufficient basis upon which to find he was a high risk serious offender under the HRSO Act. The serious sexual offences he was at risk of committing now come within the meaning of 'serious offence'.
The manner in which the application is to be determined under the HRSO Act
[27] ZSJ [5]. See also The State of Western Australia v Narrier [No 6] [2020] WASC 349 (Narrier [No 6]) [4], [29] ‑ [30]; The State of Western Australia v MBW [No 7] [2020] WASC 404 (MBW [No 7]) [29] ‑ [30]; The State of Western Australia v ACW [No 2] [2020] WASC 480 (ACW [No 2]) [6]; and The State of Western Australia v Pindan [No 5] [2021] WASC 72 (Pindan [No 5]) [25].
The application now comes to be dealt with as an application under s 53 of the HRSO Act. As will appear below, the issues to be determined are essentially the same as would have been the case under the DSO Act. The evidence and submissions presented at the hearing address those issues. Therefore it has not been necessary to invite further submissions on the basis of the legislative change, and neither party has applied to adduce further evidence.
Pursuant to s 55(1) of the HRSO Act, if I am satisfied on the balance of probabilities that the respondent has contravened a condition of the 2019 supervision order, I must:
(a)rescind the 2019 supervision order and make a CDO in relation to the respondent; or
(b)make an order amending the conditions of the 2019 supervision order or extending the period for which the respondent is to be subject to that order; or
(c)make an order affirming the 2019 supervision order without amendment or extension.
The availability of options (b) and (c) is subject to s 29 of the HRSO Act, the effect of which is that, unless I am satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of the supervision order as affirmed or amended, I cannot affirm or amend the supervision order, with the result that I must rescind the supervision order and make a CDO. The onus of proof that he will substantially comply with the standard conditions is on the respondent. Under the DSO Act, the same qualification upon the availability of options (b) and (c) was effected by s 23(1B) and (1C).
A standard condition is a condition that under s 30(2) of the HRSO Act must be included in the supervision order.[28] One such standard condition is that the person who is subject to the supervision order be under the supervision of a CCO and comply with any reasonable direction of the CCO.[29] Another standard condition is that the person not commit a serious offence during the period of the order.[30]
[28] HRSO Act s 3 (definitions).
[29] HRSO Act s 30(2)(d).
[30] HRSO Act s 30(2)(f).
The application relies also on an allegation that the respondent is likely to contravene a condition of the 2019 supervision order. Pursuant to s 55(2) of the HRSO Act, if I am satisfied on the balance of probabilities that the respondent is likely to contravene a condition of the 2019 supervision order, I must:
(a)rescind the 2019 supervision order and make a CDO in relation to the offender; or
(b)make an order -
(i)amending the conditions of the 2019 supervision order; or
(ii)amending the conditions of, and extending the period for which the respondent is to be subject to, the 2019 supervision order.
The availability of options (b)(i) and (ii) is subject to s 29 of the HRSO Act, as described in [34] above. Again, under the DSO Act, the same qualification was effected by s 23(1B) and (1C).
Section 55(3) of the HRSO Act provides (as did s 23 of the DSO Act) that, in deciding which order to make under s 55(1) or (2) (previously s 23(1) or (1A) of the DSO Act), the paramount consideration is to be the need to ensure adequate protection of the community.
The issues to be determined and the structure of these reasons
As will appear below, in the course of these proceedings the respondent admitted that he had contravened a condition of the 2019 supervision order on three occasions (in that three of the five alleged contraventions were conceded). Therefore, the issue that remains to be determined under s 55(1) of the HRSO Act is whether I should rescind the 2019 supervision order and make a CDO, amend or extend the 2019 supervision order, or simply make an order affirming the 2019 supervision order. However, in order to determine that issue, it will be necessary to consider and make findings about all of the alleged contraventions and the broader issues of the respondent's level of compliance with the 2019 supervision order, his attitude towards that order and his manageability, having regard to his interactions with officers who have been responsible for supervising and monitoring the respondent. Those considerations and findings will also be necessary if the application is to be determined on one of the alternative bases set out at [16] above, which rely on the likelihood that the respondent will contravene the 2019 supervision order.
In practical terms, the issues are inter‑related, in that established contraventions will be relevant to determining the likelihood of the respondent contravening the conditions of the 2019 supervision order for the purposes of s 53(2), and the likelihood of such contraventions will be relevant in determining the appropriate order under s 53(1), where contraventions have been established.
Just as the issues are inter‑related, so is the evidence in respect of those issues. That evidence includes the expert evidence in respect of the respondent's engagement in treatment and the assessment of his risk of sexual re‑offending.
Given that the threshold question of whether the respondent has contravened a condition of the supervision order is in effect conceded, and that most of the evidence touches on facets of all of the issues to be determined, I have not sought to compartmentalise the evidence in terms of evidence relevant to the threshold question and evidence relevant to each of the questions that follow from a finding that a contravention has occurred. However, the structure of these reasons is intended to provide a logical, and in some respects chronological, consideration of the issues that arise in the application, including the historical context in which the contraventions are to be considered.
Statutory framework and legal principles
As I discussed in ZSJ, the concepts and criteria with which the court is concerned in determining applications under the DSO Act and the HRSO Act are substantially the same.[31] The wording of s 55 of the HRSO Act is almost identical to s 23 of the DSO Act at the time the application was heard (the equivalent provision). Accordingly, the jurisprudence established in respect of the DSO Act remains relevant in construing and applying the HRSO Act, with appropriate adaptation in cases involving non‑sexual offences.[32]
[31] See ZSJ [30] ‑ [34].
[32] ZSJ [31]. See also Narrier [No 6] [4], [29] ‑ [30]; MBW [No 7] [29] ‑ [30]; ACW [No 2] [6]; and Pindan [No 5] [25].
I outlined the law relating to contravention proceedings, referring to relevant authorities, in Director of Public Prosecutions (WA) v Hart.[33] The salient principles can be distilled as follows, as adapted to reflect the language of the HRSO Act.
[33] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 (Hart).
It is to be assumed that the respondent remains a high risk serious offender. The court is not required to make that determination. The court is required only to determine, on the balance of probabilities, whether the respondent has contravened or is contravening a condition of the supervision order, or is likely to contravene a condition of the supervision order and, if so, which order should be made from those listed in s 55(1) and (2) of the HRSO Act,[34] bearing in mind that, by virtue of s 55(3), the paramount consideration is the need to ensure the adequate protection of the community.
[34] Hart [16].
While the court should choose the order that is least invasive of the respondent's right to be at liberty, if the court is not satisfied that the community could be adequately protected by releasing the respondent again on the supervision order, with or without amendment or extension (which includes the situation in which the court is simply left in doubt about that), it must rescind the supervision order and make a CDO.[35]
[35] Hart [18]; Director of Public Prosecutions v Williams [2007] WASCA 206; (2007) 35 WAR 297, 319 [86] (Wheeler JA, Le Miere AJA agreeing) ‑ in which the court was dealing with the DSO Act and the effect of s 17(2), which had the same effect as s 55(3) of the HRSO Act.
The court cannot make an order releasing the respondent on a supervision order, with or without amendment or extension, unless the court is satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of that supervision order. The burden rests with the respondent to establish that he will substantially comply with the standard conditions of the supervision order. The court must have regard to all evidence adduced in the proceedings when making that determination.[36]
[36] Hart [19].
The words 'will substantially comply with' should be given their ordinary meaning, consistent with the purposes of the legislation and the standard conditions of a supervision order, the overall object of which is to achieve the adequate protection of the community by appropriate management and mitigation of the unacceptable risk that the respondent will commit a serious offence,[37] in this case, a serious sexual offence.
[37] Hart [52].
Factors that are relevant to that assessment include the respondent's history of compliance and non‑compliance, his attitude to the conditions of the supervision order, his capacity to comply with the conditions, what measures are in place to ensure he substantially complies, and the relative importance of any breach that might occur in terms of the impact it would have on the practical effect of the supervision order.[38]
[38] Hart [50].
The essence of each party's case
The parties outlined their respective cases in opening addresses.
The applicant's case
As will appear below, the applicant relied on five contraventions, which included the three contraventions in respect of which the respondent was convicted under s 40A of the DSO Act. The applicant's case was that the court would have no difficulty finding that the respondent had contravened a condition of the 2019 supervision order, because of those convictions. However, its case was that the additional alleged contraventions were relevant to the extent of the respondent's non‑compliance with the 2019 supervision order, and the likelihood that he would contravene the conditions of a supervision order if he were again to be released on such an order.
The contraventions consisted largely of failures by the respondent to comply with lawful written instructions from his CCO, in particular in respect of the requirement under the 2019 supervision order that he keep a diary of his activities, including places and persons he visited. More broadly, however, the applicant's case was that the respondent's conduct and his engagement with supervision sessions steadily declined after his release. His conduct was said to include a belligerent attitude towards his CCO and the requirements of the 2019 supervision order, especially when challenged in relation to information he had provided or failed to provide. Further, it was alleged that the respondent had failed to engage with UnitingCare West (UCW), contrary to a written lawful instruction and the conditions of the 2019 supervision order.
The applicant's case was that the respondent's contraventions were directly related to conditions imposed to minimise his risk of sexual reoffending, that his conduct had made it difficult for the COMU to manage him in the community, and that, therefore, there were concerns in relation to the risk the respondent poses to the community.
Further, as I noted earlier, although the incident on 7 August 2019 was not relied upon as a contravention, the circumstances of the incident were relied upon as further evidence of the respondent's increased risk of sexual reoffending.
I will outline later in these reasons the particulars relied upon by the applicant in respect of the alleged contraventions and other conduct which was said to be relevant to an assessment of the respondent's risk of committing a serious sexual offence.
The respondent's case
The respondent's case was that the contraventions, both those that were the subject of charges to which he pleaded guilty and those that were not the subject of charges under s 40A(1) of the DSO Act, were relatively minor, as was the behaviour on which the applicant relied, not as a contravention, but as additional behaviour that was said to demonstrate a likelihood that the respondent would contravene the conditions of the 2019 supervision order. The respondent's case was that, even looked at in its totality, his conduct was not such as to demonstrate he was likely to contravene the conditions of a supervision order. His position was said to be, essentially, that 'he has not been dealt with in a way which is sensitive to his particular circumstances', which were said to be his 'cultural and linguistic diversity'.[39] The lack of sensitivity was said to arise from constraints on the financial and general resources of the Department of Justice.[40]
[39] ts 784.
[40] ts 784.
Further, it was the respondent's case that his behaviour had to be viewed in the context of 'an individual who … has spent a remarkably long time in prison and is then expected to comply at a very early stage with extremely onerous conditions'.[41] His case was that such expectations involved aspirational goals, and there needed to be a degree of discretion exercised by those dealing with him, when considering the type of conduct that was said to demonstrate a likelihood of contravention of the conditions of the 2019 supervision order. In that context, it was also the respondent's case that his perceived poor behaviour arose in the context of a difficult relationship with a particular individual (as will appear below, his first CCO under the 2019 supervision order), and a request by the respondent for a change of his CCO was not met in a forthcoming manner.[42]
[41] ts 784.
[42] ts 785.
The respondent's case was that he should be released again on the 2019 supervision order.
The evidence in these proceedings
The evidence adduced by the applicant at the hearing consisted of a Book of Materials (BOM) and Supplementary Book of Materials (Supplementary BOM), which were tendered by the applicant without objection, and the oral evidence of:
(1)Senior Constable Eion Carberry, who at relevant times was attached to the Sex Offender Management Squad of Western Australia Police (SOMS) and gave evidence about one of the contraventions (on 11 March 2019) and the incident of 7 August 2019;
(2)Ms Aisha Brown, who at relevant times was a senior case worker with UCW and was the case worker responsible for the respondent;
(3)Mr Timothy Snow, a senior CCO (SCCO), who was the CCO responsible for supervising the respondent under the 2019 supervision order from 5 March 2019 (when the respondent was released) to 17 July 2019;[43]
(4)Mr Kyle Jarvie, another SCCO, who conducted a home visit with the respondent on 9 May 2019, during which the respondent expressed his views about the 2019 supervision order and his discontent with Mr Snow as his CCO;
(5)Ms Kimberley Comery, another SCCO, who was the respondent's CCO at the time of the hearing;
(6)Ms Sarah Ballantyne, Senior Counselling Psychologist with the Forensic Psychological Service in the Department of Corrective Services, who assessed the respondent and prepared a report for the purposes of these proceedings; and
(7)Dr Ben Bannister, Forensic Psychologist, who also assessed the respondent and prepared a report for the purposes of these proceedings. Dr Bannister had previously assessed the respondent for the purposes of the exceptional review in February 2019.
[43] BOM 85.
The BOM, which was received as Exhibit 1 in these proceedings, includes the reports of both of the expert witnesses (including the earlier report of Dr Bannister from the exceptional review), statements and reports from the other witnesses, and additional materials concerning the respondent's history relevant to these proceedings, the alleged contraventions, the offences under s 40A of the DSO Act of which the respondent was convicted on his pleas of guilty, and the alleged 'likely contraventions'. I will refer to those materials as they become relevant. It is sufficient at this stage to note that they include:
(1)the relevant written lawful instructions, warning letters from the CCO, diary entries made by the respondent and Department of Justice Community Business Information System (CBIS) notes concerning interactions between Department staff and the respondent;
(2)a Department of Justice 'At Risk Management System – Reception Intake Assessment' dated 9 August 2019, which was completed when the respondent was received into custody at Hakea Prison on that date after he was arrested in respect of the alleged contraventions of the 2019 supervision order, and which includes information provided by the respondent in respect of drugs he 'normally' used;
(3)an 'Individual Intervention Progress Report' dated 25 June 2019 of Ms Catherine Matringe, a clinical psychologist with the Forensic Psychological Service within the Department of Corrective Services, in respect of psychological counselling she had provided to the respondent from 16 September 2015 to 5 June 2019;
(4)two affidavits affirmed by Ms Comery on 8 August 2019 and 9 August 2019 respectively setting out the factual bases for the alleged contraventions by the respondent and the belief that he was likely to further contravene the 2019 supervision order; and
(5)an unsigned affidavit of the respondent dated 28 August 2019, responding to the matters set out in Ms Comery's affidavit and stating that the respondent would follow the 'order as it is written down' (the respondent's affidavit).
The respondent's affidavit was prepared in support of his submission at the preliminary stages of the application that he should not be detained pending the determination of the contravention proceedings. On 28 August 2019 the respondent made an affirmation during proceedings before Hall J and gave evidence that the contents of the affidavit were true and correct.[44] Accordingly, I have taken the respondent's affidavit in the BOM into account on the basis that it has been affirmed.
[44] ts 715.
The Supplementary BOM, which was received as Exhibit 2, contains the amended particulars of the contraventions relied on by the applicant, whereby one of the original alleged contraventions was withdrawn, but the circumstances of the incident that had given rise to that allegation were included as evidence of the likelihood that the respondent will contravene the 2019 supervision order.[45] In essence, it is alleged that the respondent allowed another person into his accommodation, and that person brought onto the premises a smoking implement that was subsequently found to contain traces of cannabis.
[45] Supplementary BOM 2, 8.
The Supplementary BOM also contains handwritten notes made by Ms Comery on 4 and 25 October 2019 and 28 November 2019 of conversations she had with the respondent, during which he expressed his views about the way he had been dealt with under the 2019 supervision order, his desire to return to Casuarina Prison where there were more of his countrymen with whom he could associate, and his desire to do better under the 2019 supervision order. I will refer to the respondent's statements to Ms Comery in more detail in due course.
The respondent did not give or adduce evidence. He was under no obligation to do so, and I draw no adverse conclusion from his election. That follows from the fact that, by s 82 of the HRSO Act,[46] the proceedings are taken to be criminal proceedings for all purposes. However, it means that the issues in the application, including whether the respondent has discharged the onus of satisfying me that he would substantially comply with the standard conditions of a supervision order, must be determined on the evidence adduced by the applicant. That evidence includes the respondent's affidavit and the statements made by him to various people, including the expert witnesses and Ms Comery. However, in determining the weight to be given to the respondent's statements in his affidavit and those he made to others, I may take into account that those statements have not been tested by cross‑examination, and I have done so.
[46] Previously also by s 40(1) of the DSO Act.
Assessment of witnesses
In light of some of the issues raised in the respondent's case, it has been necessary to make an assessment of the reliability of some of the witnesses who dealt with the respondent during the course of his supervision, and, in at least one case, the credibility of that witness. I have had the benefit of watching the witnesses give their evidence in court. I am mindful of the limitations of demeanour as a reliable guide to whether a witness is honest or accurate in their evidence. I will refer to any relevant factors in that regard in dealing with the evidence of witnesses below. On the whole I did not observe any reason to doubt that the witnesses who had dealt with the respondent were doing their best to recall accurately the matters about which they were questioned. It is convenient to deal more specifically with the evidence of Mr Snow at this stage.
As I have already mentioned, and will discuss below, the respondent's case is that he had a difficult relationship with Mr Snow, his first CCO under the 2019 supervision order, and his perceived poor behaviour needs to be assessed in that context. In cross‑examination, the respondent's counsel challenged the credibility and reliability of some parts of Mr Snow's evidence. My impression was that, even in examination‑in‑chief, Mr Snow did not always answer questions directly. In some respects, he may not have understood the point of the question clearly, but it seemed to me that, on occasions, Mr Snow felt there were matters he needed to include in his answer to explain the full context of his dealings with the respondent, even if such matters were not relevant to the particular question asked. In that regard, I am of the view there was a degree of defensiveness about his evidence. At times he sought to introduce what others had said, when he was required only to explain what he had said or done. The defensiveness could be attributed, to some extent, to a perceived hostility in the cross‑examination, during which he was challenged on aspects of his dealings with the respondent. He was challenged also about the absence of certain matters described by him in his evidence from his contemporaneous notes or the statement he prepared for these proceedings. It was suggested that his evidence was inconsistent with the notes or his statement in respect of those matters, and that I should regard Mr Snow's evidence as unreliable in those respects.
The absence of a relevant matter from a witness's previous accounts may be a factor that reflects adversely on the witness's credibility or reliability, particular in respect of the specific issue to which it relates. However, there may be explanations for the failure to record a particular fact contemporaneously or mention it in a previous statement. For instance, the focus of attention might be on other matters at the time of making notes, the witness may have had a lapse of memory at the time of making the earlier statement, or it may be that the significance of an incident may only become clear later. In any event, I did not consider that there were significant discrepancies between Mr Snow's evidence and his notes or previous statements that would render his evidence unreliable. Overall, I formed the view that he endeavoured to recall relevant facts honestly, and that his account of his dealings with the respondent was consistent and coherent with other known facts. Further, it seemed to me that Mr Snow properly and fairly accepted a number of propositions put to him that were favourable to the respondent, including that he had generally engaged well with supervision.
Historical context for the conditions of the 2019 supervision order
In order to assess the significance of the respondent's admitted contraventions, and the additional alleged contraventions and circumstances said to evidence a likelihood of further contraventions, it is necessary to have regard to his history of sexual offending and the factors that have previously been identified as contributing to that offending.
The respondent's history of sexual offending
The following summary of the respondent's history of sexual offending is adopted from Dr Bannister's outline of that history in his report of 30 January 2019 for the exceptional review.[47]
[47] BOM 163 ‑ 164.
The respondent's first conviction for a sexual offence was in March 1993 when he was 14 years old. He was convicted of an attempted sexual assault committed in November 1992, when he was 13 years old, against an 18-year-old female who was known to him. The offence was committed while the respondent was in a dwelling without consent, in respect of which he was charged with burglary. The offending occurred in an Aboriginal community near Port Hedland. The respondent was placed on 6 months' probation for the two offences. When interviewed by Dr Bannister in January 2019, the respondent said the offending was impulsive and he had consumed about one and a half cartons of beer. The respondent had previously said he thought he may have hit the victim.
In April 1994 the respondent was convicted of the offence of sexual penetration without consent, committed in March 1994, when he was 15 years old, against a 27-year-old woman who was known to him and was six months pregnant at the time. He was also convicted of burglary and deprivation of liberty in respect of the same incident. The respondent said to Dr Bannister that he had entered the house through an unlocked sliding door and stood watching the victim before she woke. He then wrestled with her in an attempt to have sex with her. He said he did not know she was pregnant. He was sentenced to a total of 10 months in juvenile detention for these offences and was released on a conditional release order for three months in September 1994.
Between the 1994 offences and his next conviction for a sexual offence, the respondent was convicted of manslaughter and burglary on 11 June 1996, for which he received a total effective sentence of 18 months' imprisonment commencing on that date. After his release from prison, he was convicted of a number of disorderly type offences, including street drinking and damage offences, before his next serious sexual offence.
The respondent's next conviction for a serious sexual offence was in October 2002, for an offence of aggravated indecent assault committed by him in May 2002, when he was 23 years old, against his 44‑year‑old aunt at Marble Bar. He was convicted at the same time of offences of assault occasioning bodily harm, threats to injure and breaching bail. He was sentenced to a total effective sentence of 2 years and 6 months' imprisonment, which was taken to have commenced on 24 May 2002. The respondent told Dr Bannister that he had been drinking prior to going to his aunt's house in order to sleep. He said he woke up, obtained a kitchen knife and demanded sex from his aunt. He said the offence was not planned and happened because he was intoxicated. Dr Bannister noted that the respondent was denied release on parole by the Prisoners Review Board and was eventually released without supervisory conditions in January 2004.
Between his release from prison in 2004 and his next sexual offending, the respondent was convicted of a number of disorderly type offences, including street drinking and consuming alcohol in a public place.
The last of the respondent's sexual offences were committed by him in April and August 2005, when he was 26 years old. He was convicted of two counts of deprivation of liberty and three counts of aggravated sexual penetration without consent in respect of that offending. The offences were committed against his 21‑year‑old aunt and his 17‑year‑old cousin in South Hedland.
In respect of the offences against the 21‑year‑old victim, the respondent told Dr Bannister that he had been smoking cannabis and drinking alcohol. That is the extent of his account to Dr Bannister upon which I place any reliance, as the balance of what the respondent said to Dr Bannister about the incident was, in effect, exculpatory, and therefore contrary to his conviction. I note that in summarising Dr Bannister's evidence in Corbett [No 6], Hall J described the respondent's account of his offending as follows:[48]
There was some level of cognitive distortion in terms of how he recalled, for example, the behaviour of some of the victims, but there was no outright denial.
[48] Corbett [No 6] [19].
I accept that to the extent that the respondent's description of the behaviour of the 21‑year‑old victim tended to contradict his conviction, it was an example of the cognitive distortion referred to by Hall J. Such distorted thinking by the respondent is a factor which may inform the level of his risk of future sexual offending.
The respondent demonstrated similar cognitive distortion in respect of the offences against the 17‑year‑old victim. He told Dr Bannister that he was walking with her to get help in relation to her vehicle, which had broken down. As they were walking, he asked her for sex. He told Dr Bannister that they 'started wrestling and screaming',[49] which I take to be a reference to the victim screaming. The respondent acknowledged that the victim twice refused to have sex with him. However, he then gave an account that suggested, in effect, that the sexual act that followed was consensual. Again, I place no weight on that aspect of his account to Dr Bannister, which I take to be another example of the distorted thinking referred to by Hall J, rather than an outright denial. The respondent told Dr Bannister that he was not intoxicated at the time of the incident with the 17‑year‑old victim.
[49] BOM 164 [19].
On 3 February 2006, the respondent was sentenced to a total effective sentence of 7 years' imprisonment for the offending in April and August 2005.
It was as the respondent was approaching the end of that sentence that the DPP made the original application under the DSO Act.
I note that the offences of deprivation of liberty and manslaughter, to which I have referred, are serious offences for the purposes of the HRSO Act.[50] The deprivation of liberty offences were committed in the context of the respondent's sexual offending. They are relevant as part of the circumstances that inform the nature of the respondent's risk of committing serious offences that were serious sexual offences under the DSO Act, but the evidence in these proceedings does not support a finding that the respondent is a high risk serious offender on the basis of the offences of deprivation of liberty, independently of the serious sexual offending. Similarly, while the manslaughter conviction is part of the respondent's antecedents, and is relevant in the consideration of static and variable factors in Dr Bannister's assessment of the respondent's risk of sexual reoffending,[51] the application was not brought on the basis that there is an unacceptable risk that the respondent would commit a non‑sexual serious offence, such as manslaughter, and the evidence does not support such a conclusion. Accordingly, I will take into account the respondent's convictions for deprivation of liberty and manslaughter in the limited manner in which they are relevant, as I have described.
Factors to be addressed by the conditions
[50] HRSO Act sch 1 div 1 subdiv 3.
[51] See BOM 170 [57], 172 [65], 197 [20], [27]. The manslaughter conviction is mentioned by Dr Bannister in the context of the variable factor 'interpersonal aggression' in the Violence Risk Scale: Sex Offender Version, being the scale used by Dr Bannister to assess the respondent's risk of sexual recidivism. It would also appear to be relevant to the static factor of 'prior sentencing dates', in that a 'history of prior incarcerations or of being sentenced has … been linked with increased risk for sex offence recidivism' (BOM 170 [57]).
It is obvious from the respondent's previous sexual offending that drug and alcohol use was a significant factor contributing to his offending. However, it is also apparent that he has demonstrated cognitive distortions about the behaviour of some of his victims that contribute to his risk of sexual reoffending. Further, the respondent has been assessed as having antisocial personality traits, which is an additional factor contributing to his risk of committing sexual offences.[52]
[52] See Corbett [4], [7]; Corbett [No 3] [23]; Corbett [No 5] [72].
In terms of management of the respondent's risk in the community, his previous contraventions in 2013 and 2014 demonstrated that he had difficulty with compliance, in particular with supervision. Of particular concern when assessing the significance of his contraventions in the present case is his poor attitude towards supervising staff and the conditions of his supervision orders in the past.
As Hall J noted in Corbett [No 4]:[53]
Mr Corbett's past history of breaching the conditions of a supervision order shows the difficulties he has with compliance. The risk of a future breach is not in itself sufficient to justify continuing detention. The risk with which the DSO Act is concerned is the risk of committing further serious sexual offences. However the ability to manage that risk in the community depends on controlling the risk factors that are addressed by the conditions of a supervision order. The conditions that have previously been breached by Mr Corbett were highly relevant to the controlling of that risk.
[53] Corbett [No 4] [43].
The respondent's history also indicated that he was more likely to engage in behaviour that put him at risk of committing sexual offences, by resorting to illicit drug use or alcohol abuse, when he was stressed and lacking suitable support within the community. The history also indicated that the respondent was likely to offend against women who were known to him, including relatives.
It has been, and will continue to be, an integral part of any supervision order that the respondent continue to engage in treatment to address the factors that have contributed to his sexual offending, and engage with support services and supervision to mitigate the stresses of living in the community and managing relationships which may lead to an increase in his risk of reoffending.
It is also important to consider, in the context of necessary conditions for a supervision order, the need for suitable accommodation and for the respondent to comply with any obligations attaching to his use of such accommodation when it is provided by a support service. As Hall J explained in Corbett [No 5]:[54]
Accommodation for a person on a supervision order is not simply a place to live. The location and type of accommodation are factors that are integral to any proper assessment of the risk of reoffending. The absence of suitable accommodation makes it impossible to be satisfied that a supervision order is presently a viable option.
[54] Corbett [No 5] [80].
Against that background, the conditions proposed for (and ultimately adopted in) the 2019 supervision order, including those outlined below which were contravened or allegedly contravened by the respondent, were appropriate and necessary to address the respondent's risk factors and sufficiently mitigate his risk of committing a serious sexual offence. Moreover, it was particularly important that the respondent engage in a cooperative and meaningful way with officers whose responsibility it was to supervise him and monitor his activities, and with support services whose responsibility it was to assist the respondent to adjust in the community and avoid stressors that might increase his risk of sexual offending.
The assessment in February 2019
By the time of the exceptional review in February 2019, it appeared that the respondent had made important progress in relation to the factors that had contributed to his sexual offending. In fact, Hall J had noted most of the improvements in the previous review of the respondent's continuing detention in 2017. As I mentioned earlier, the obstacle to release at that time was the unavailability of suitable accommodation. Hall J made the following findings in 2017:[55]
Over the past 12 months, Mr Corbett has addressed a number of the factors that are relevant to the risk of his reoffending. In particular, he has engaged with regular counselling, which has given him insight into his risk factors and strategies for avoiding them. He has also engaged positively in drug and alcohol counselling. Whilst his treatment gains have yet to be tested in the community, his positive prison behaviour is a good indicator that his prospects of complying with a supervision order are good.
Mr Corbett has previously responded poorly to a supervision order. The reasons for that include release into an urban area where he had few supports or opportunities to engage in meaningful employment or cultural activities. However, all the indications are that a supervision order could now be better tailored to Mr Corbett's needs and that he has made significant progress since he was last released. Greatly improved professional and community supports are also available. These factors all contribute to a mitigation of the risk of reoffending.
[55] Corbett [No 5] [73] ‑ [74].
Those findings contributed to his Honour's conclusion in 2017 that the respondent was suitable for release on a supervision order, but for the unavailability of suitable accommodation.
In the time between the 2017 review and the exceptional review in February 2019, the respondent continued to participate in psychological counselling with Ms Matringe. By the time of the exceptional review, he had engaged in such counselling over a period of about four years. Evidence about his progress in counselling generally and, more particularly, since the previous review was given by Dr Tara Yewers, a counselling psychologist employed by the Department of Justice, who had sought information from Ms Matringe and had also interviewed the respondent for his perspective. Dr Bannister also gave evidence about the progress made by the respondent.
The respondent had addressed his use of drugs and alcohol with Ms Matringe and in alcohol treatment sessions with Mission Australia. Hall J noted that alcohol use had been a factor in the respondent's previous breach offences, as well as in his sexual offending.[56] The evidence at the hearing in February 2019 was that the respondent had engaged well, had been abstinent from drugs and alcohol while in prison and had been able to discuss various risk related issues with a view to establishing recovery goals that would support relapse prevention.[57] This was a significant factor in Hall J's finding that the respondent was suitable for release into the community, subject to a supervision order.[58]
[56] Corbett [No 6] [21].
[57] Corbett [No 6] [21].
[58] Corbett [No 6] [42].
It would seem that it was also a significant development that the respondent had made progress in his attitude towards a supervision order and supervising officers. Hall J noted:[59]
One of the issues that Dr Bannister raised with Mr Corbett was his response to supervision when released in 2012. Mr Corbett referred to experiencing temptations from some family members and an inability to contact other family members because his victims were related to him. He confessed to being annoyed with supervising staff on his previous release and to being suspicious that they were trying to 'trip (him) up'. However, he said that his previous poor attitude had improved and he accepted that the intention was to see him succeed in the community. Indeed, he later pointed out to Dr Yewers an instance where he had had positive interaction with a person responsible for electronic monitoring and believed that this was one of the resources that he could use on release. Perhaps most importantly, Mr Corbett has maintained counselling with Ms Matringe and one of the main points addressed in that counselling has been the causes of previous breaches of supervision orders. Treatment has focussed on the employment of strategies to overcome stresses on release. (emphasis added; citation omitted)
[59] Corbett [No 6] [20].
His Honour further noted:[60]
In his conclusions Dr Bannister states that Mr Corbett's meaningful engagement in treatment has assisted in mitigating his potential risk, thereby making that risk more manageable. However, this has been in the context of the restricted environment of prison. His ability to maintain treatment gains and apply learned concepts in the community remains to be seen. Nonetheless, in oral evidence Dr Bannister said that he had no concerns regarding Mr Corbett's ability to comply with a supervision order. He said that there may be occasions where Mr Corbett would find it challenging but he believes that he has the capacity to comply with an order at this point in time. In particular Dr Bannister said that Mr Corbett was much better positioned to engage with community corrections and those who are providing him with treatment than was previously the case. Dr Bannister considered that the appropriate length of an order was six years. (emphasis added)
[60] Corbett [No 6] [24].
It was apparent that the respondent's poor performance when previously subject to a supervision order was due in part to his inability to manage frustration and disappointment. Hall J noted the following information from Ms Matringe, which was referred to in the evidence of Dr Yewers:[61]
Ms Matringe reported that Mr Corbett was disappointed and discouraged following the outcome of the last review and had requested a break in contact for two months. However, after a month he asked for the sessions to resume. He has remained respectful in his interactions and his behaviour has been appropriate. Ms Matringe considered that this reflected his ability to appropriately manage frustration and disappointment.
[61] Corbett [No 6] [27].
As will appear later in these reasons, an important consideration in the present application is the respondent's attitude towards the police who are tasked to monitor his activities while subject to a supervision order. A negative attitude towards the police had been a factor in his previous contraventions. In Corbett [No 6] Hall J identified an apparent improvement in that regard, and in the respondent's overall intended approach to compliance with the conditions of a supervision order:[62]
Ms Matringe reported to Dr Yewers that Mr Corbett's long held mistrust and suspicion of police was continuing to be addressed in treatment. Attention has been directed towards increasing Mr Corbett's awareness of viewing supervising officers as doing their job rather than conducting a personal campaign against him. He has made progress around these issues and has taken greater responsibility for his own behaviour and developed strategies to cope with any stress that may occur. He is conscious that he must adhere to all the conditions of a supervision order or risk a return to custody. He is aware that he cannot yield to the influence of family and friends in regard to behaviours such as drinking alcohol. He has acknowledged that he will require support and has stated his willingness to seek assistance if required. He has identified the importance of planning activities and social interactions to avoid loneliness and boredom. (emphasis added)
[62] Corbett [No 6] [29].
Further, Hall J noted that Ms Matringe was available to continue to provide counselling to the respondent within the community. The respondent had indicated that, over the four years that he had engaged with Ms Matringe, he had developed a trusting relationship and felt comfortable in confiding in her.[63]
[63] Corbett [No 6] [31].
Hall J concluded:[64]
At the last periodic review which concluded on 10 April 2017 I noted that Mr Corbett had responded positively to treatment, had engaged with drug and alcohol counselling and was suitable for release into the community. However, it proved impossible to make a supervision order at that time because of the unavailability of appropriate accommodation. In the following 20 months Mr Corbett has continued to make progress with treatment. A detailed release plan has been developed, which includes significant professional and community supports. Most importantly, suitable accommodation is now available. I am satisfied that it is likely that Mr Corbett will substantially comply with the conditions of the order, including the standard conditions. All of this supports a conclusion that release on a supervision order is now appropriate. That is a conclusion that the State supports.
[64] Corbett [No 6] [42].
Release of the respondent subject to the 2019 supervision order
The respondent was released subject to the 2019 supervision order on 5 March 2019. He signed the 2019 supervision order, which contained an acknowledgement that he had received a copy of the order, that the effect of the order and what may happen to him if he contravened it had been explained to him and that he understood those things. The respondent's signature appears against each of the conditions in the order. There is no dispute about the fact that he was aware of his obligations under the order.
Particulars of contraventions and other conduct relied upon by the applicant
The contraventions upon which the applicant relies, as amended, are set out in an 8‑page document titled 'Amended Particulars of Contravention Allegations and Likely Contravention' (Amended Particulars), which is contained in the Supplementary BOM. Further amendments were made during the hearing. They consisted of two typographical amendments and the withdrawal by the applicant of one of the particulars under the heading 'Other behaviour/conduct not being contraventions', which were relied on in support of the submission that the there is a likelihood that the respondent will contravene the 2019 supervision order.
The latter aspect of the Amended Particulars included the following preface:
The respondent's contraventions, non‑compliance with the [2019 supervision order], lack of appropriate engagement/cooperation in supervision sessions, belligerent attitude, refusal to provide certain information and placing himself in high risk situations have given rise to COMU having concerns regarding the potential risk his behaviour poses to the community and COMU's ability to identify, respond and manage his risk of sexual reoffending.
The preface continues by referring to the report of Dr Bannister, dated 30 January 2019, which was prepared for the exceptional review in February 2019, in which Dr Bannister said the respondent overestimates his capacity to manage challenging situations and may 'act on resentment towards restrictions placed on him and prioritise his own needs or how he is perceived by others', which could result in his compliance with supervision being compromised. Dr Bannister had expressed the opinion that if such a situation were to occur and the respondent were to consume alcohol and become intoxicated, he could reoffend in the manner he did previously, especially if he was in the company of an intoxicated woman who is known to him and who denies him sex. However, as I noted earlier, in his oral evidence at the exceptional review hearing Dr Bannister had expressed no concern about the respondent's ability to comply with supervision requirements.[65] Hall J had acted on that opinion and other evidence to be satisfied that the respondent would substantially comply with the standard conditions of a supervision order.
[65] See [93] above.
Nevertheless, in the Amended Particulars, the applicant sought to combine the effect of the alleged contraventions and the other conduct described in the ensuing particulars as follows:
The contraventions particularised above, and the instances of non‑compliance and rejection of supervision summarised below have occurred during the early stages of the [2019 supervision order] and were directly linked to conditions imposed to minimise his risk of sexual reoffending, rendering it difficult for COMU to manage him in the community. In the circumstances, it is likely if re‑released into the community that the respondent will contravene a condition or conditions of the [2019 supervision order] again.
The particulars in large part consist of a narrative of events and the respondent's conduct said to constitute the contraventions and other relevant behaviour, in some respects outlining evidence and argument, as can be seen in the passage quoted in the preceding paragraph, rather than simply particularising the contravention or alleged relevant conduct. In most instances, the narrative reflected the contents of witnesses' statements and the second affidavit affirmed by Ms Comery in support of the application. It is obvious from the manner in which the applicant's case was conducted that the form of particulars adopted was intended to provide context for specific aspects of the respondent's conduct relied upon by the applicant as indicating the likelihood that the respondent would contravene the conditions of a supervision order if he were to remain on the 2019 supervision order or be released on another supervision order. However, it is desirable in a matter of this kind for the particulars to be confined to clearly identifiable aspects of the respondent's conduct that are said to underpin the case that the respondent is likely to contravene the conditions of the supervision order.
I will deal first with the alleged contraventions, and will then address the more significant aspects of the additional 'behaviours/ conduct' relied on by the applicant.
The alleged contraventions – Relevant conditions
I will refer to the alleged contraventions, whether admitted by the respondent or not, by the numbering in the Amended Particulars. It is convenient to identify first the conditions alleged to have been contravened by the respondent.
The conditions alleged to have been contravened
The 2019 supervision order contained 46 conditions with which the respondent was bound to comply for a period of six years.[66]
[66] Corbett [No 6] Annexure.
The conditions contravened or allegedly contravened by the respondent are those numbered 4, 12, 41 and 43. Although other conditions provide context for each of those conditions, it is sufficient to set out the four conditions for the purposes of assessing the contraventions and alleged contraventions. I will also refer to four other conditions that are relevant to (a) the circumstances upon which the applicant relies as evidence that the respondent is likely to contravene the conditions of a supervision order, and (b) the broader question of the respondent's attitude to the conditions of the 2019 supervision order and the role of his CCO and WA Police in supervising him and monitoring his activities.
Condition 4 provided that the respondent:
Be under the supervision of a Community Corrections Officer, which includes, comply with any reasonable direction of the officer (including a direction for the purposes of section 19A or 19B [of the DSO Act]).
Condition 12 provided that the respondent:
Consult and engage with any medical practitioner, psychiatrist, psychologist, programs, mentor, support service, support person and/or accommodation provider nominated by a CCO, as directed by a CCO.
Condition 41 provided that the respondent was:
Not to enter or remain in any residence where any female(s) are present, whether the female(s) are accompanied or not, unless the identity of the female(s) are approved in advance by the CCO.
Condition 43 provided that the respondent was to:
Maintain a daily diary of your movements, activities and associations if and as directed by the CCO, and present this diary to the CCO or any Police Officer upon request.
Other relevant conditions
As will appear later, part of the respondent's frustration has been with the prospect that the authorities will provide information about the respondent's offending to his family members or associates. Conditions 22 and 23 of the 2019 supervision order provided that the respondent must:
22.Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information.
23.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.
As will also appear later, part of the circumstances that are said to indicate a likelihood that the respondent will contravene the conditions of a supervision order is an incident in which at least one person who was in possession of cannabis was at the respondent's residential address. There are a number of conditions in the 2019 supervision order that were intended to mitigate the risk that the respondent would relapse into alcohol and drug use, which has been associated with an elevation of his risk of sexual reoffending. Although the respondent is not alleged to have breached any of the following conditions, they provide context for the concern that he is likely to contravene a condition of the 2019 supervision order. Conditions 39, 40 and 42 provided that the respondent must:
39.Not remain in the presence of any person 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.
40.Not remain in the presence of any person affected by illicit substances, or reasonably ought to know to be affected by illicit substances.
42.Not to remain in any place where prohibited drugs are being consumed, or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place.
In any event, I am not satisfied that the respondent would substantially comply with the standard conditions of a supervision order. I respectfully adopt the reasons expressed by Hall J in refusing the respondent's application to be released pending the determination of these proceedings, as they are an apt reflection of my conclusions, having heard and analysed all of the evidence in these proceedings, and having considered the parties' submissions in respect of that evidence:[552]
Taken individually many of the alleged contraventions are minor. However, when the alleged contraventions are viewed together and in the light of other conduct that the State relies on, there appears to be good reasons for the authorities to be concerned as to their ability to manage the respondent. There is evidence of non‑compliance, aggressive resistance to authority, oppositional behaviour and deceit. Despite the explanations for this given by the respondent in his affidavit, much of it is undisputed. Nor can I accept that the alleged breaches do not relate to any risk of further serious sexual offending. Being in company with adult females without permission and being in the presence of people using cannabis have the potential to increase risk. It is not to the point that the risk was not realised on these occasions. The purpose of the conditions is to minimise risk by ensuring that any conduct that has the potential to make offending more likely is prevented or at least caught and stopped at an early stage. On the presently available information I am not satisfied that the respondent would substantially comply with the standard conditions if released. In particular I am not satisfied that he would substantially comply with the conditions regarding supervision by a community corrections officer and compliance with all reasonable directions issued by such an officer.
[552] Corbett [No 7] [51].
The only qualification to those reasons is that there is no evidence that the respondent was in the presence of people using cannabis. However, my findings in respect of particular (xvi),[553] to which the comments of Hall J in that regard relate, also lead to the conclusion that the circumstances had the potential to increase the respondent's risk of committing a serious offence by virtue of his subversion of supervision and the possibility that associating with at least one person who used cannabis on his premises could put him on a pathway to drug use, which is a significant risk factor.
[553] See [343] ‑ [347] above.
The respondent's claims to Ms Comery and others, after he was returned to custody, that he has changed his attitude to the conditions of the 2019 supervision order and to the role of those tasked to supervise and monitor him, that he will engage with such officers in a more constructive manner and will take his obligations under the order seriously are a familiar refrain, echoing his expressions of change and resolve to do the same things after a period of detention following his contravention of the previous supervision order. Hall J accepted the evidence at that time that the respondent had made important progress and was likely to substantially comply with the standard conditions of a supervision order. The respondent's contraventions, and the deterioration of his attitude within a relatively short time after his release on the 2019 supervision order, suggest that his resolve was not genuine or that he did not have the capacity to maintain the resolve. Within a relatively short time he was again displaying the frustration and annoyance with the conditions of the supervision order that he had displayed in respect of the previous supervision orders, and he was again behaving in a somewhat belligerent and deceitful manner towards those entrusted with supervising him and monitoring his activities.
Belligerence may not prevent the effective operation of a supervision order, if the person who is subject to the order is substantially compliant, but if it leads to a failure to properly engage with supervision and monitoring, and if it is also associated with deceit or a failure to disclose relevant information, it affects the confidence one can have in the effectiveness of supervision and monitoring to mitigate the respondent's risk of reoffending.
Given that I have found the contraventions proved, the onus is on the respondent to satisfy me that he would substantially comply with the standard conditions. However, if I were required to determine the application on the alternative ground that it is likely the respondent will contravene the conditions of the 2019 supervision order or any amended supervision order, I would find that the alternative ground has been established.
The respondent has previously contravened his supervision orders (including the 2019 supervision order) when he has been resentful about the conditions of those orders and towards those who have been required to monitor and supervise him in the community. To the extent that past behaviour is a predictor of future behaviour, the previous contraventions suggest that it is likely the respondent will again contravene the conditions of any supervision order. That is because, notwithstanding his claims that he understands the role of the conditions and his supervisors, and that he intends to do better, he has exhibited persistent resentment about the conditions and supervisors since he has been in custody, and he has continued to express resistance to the notion that the conditions of a supervision order are necessary to manage his risk, because he does not believe he poses an unacceptable risk of committing a sexual offence. Of particular concern are statements by the respondent that he does not want to tell his supervisors everything, and that he should not have to. As Ms Comery indicated, this tends to perpetuate concerns that the respondent will not be forthcoming with information that is necessary for the risk management team to be able to effectively monitor and supervise the respondent on a supervision order. The respondent has not sought to put before me any evidence of his conduct or attitudes during the time that he has been in custody since the hearing of this application that would demonstrate a change in his attitudes and level of insight in respect of those matters.
On the basis of the whole of the evidence presented at the hearing, I am satisfied it is likely that the respondent will contravene the conditions of the 2019 supervision order if he were released again subject to that order. As I have indicated, I am satisfied that there are no other reasonable conditions that could be imposed that would provide adequate protection of the community if the respondent were to be released on a supervision order. In any event, the fact that I am not satisfied that the respondent would substantially comply with the standard conditions of a supervision order would mean that the outcome would not change if the application were determined on the alternative ground.
What the respondent needs to do
The respondent needs to pursue the goals identified by Dr Bannister and Ms Ballantyne. Most importantly, he must reflect on his behaviour and his attitudes in a serious manner, to find a way to understand that his past does render him a serious danger to the community under the DSO Act, and a high risk serious offender under the HRSO Act, which now applies. He must find a way to understand that a supervision order, if it is to be effective, must contain strict conditions. He must understand that, over time, the conditions of a supervision order may be eased if he demonstrates that he is able to comply with the conditions of such an order, that he is cooperative with his CCO and those who are responsible for monitoring him, and that he accepts the assistance that is provided by agencies such as UCW. In those circumstances, if the assessment is made that the easing of conditions would not compromise the adequate protection of the community, the respondent may have greater freedoms and may be able to associate with people with less restriction.
Given the outcome of these proceedings, the respondent will first need to demonstrate from a custodial setting that he has the capacities I have described. That will require him to undertake further treatment, preferably with Ms Matringe, as he has developed a good rapport with her. As Dr Bannister also suggested, the respondent will need to engage with his CCO in custody to come to an understanding of what will be required of him if he is to be released in the future, as he may well be, if he can demonstrate, genuinely, on the next occasion, that he will be able to substantially comply with the standard conditions of a supervision order. It might be thought that the hurdle has been raised, because the respondent engaged in the same kind of behaviours and demonstrated the same attitudes while subject to the 2019 supervision order as he did in the past, which led to earlier contravention proceedings. However, it should not be an impossible hurdle if the respondent sets his mind to making the necessary changes.
Conclusion
Having regard to the respondent's contraventions of the conditions of the 2019 supervision order and the whole of the evidence concerning his attitude to the conditions of the order and his level of risk, and in the absence of any change to his attitude in the period that has elapsed since the hearing, I am not satisfied that the respondent will substantially comply with the standard conditions of a supervision order. Consequently, I am required to rescind the 2019 supervision order and make a CDO.
Orders
I make an order under s 55(1)(a) of the HRSO that the supervision order made by Hall J on 8 February 2019 be rescinded and that the respondent be detained in custody for an indefinite term for control, care or treatment.
I set 1 June 2022 as the date of the first review of the respondent's detention pursuant to s 64(2)(a) of the HRSO.
Annexure 1 – Extract from Amended Particulars
Other behaviour/conduct not being contraventions
Other behaviour/conduct relevant to risk which may not amount to a contravention of the [2019 supervision order] but which is relevant to an assessment of the respondent's risk include the following:
on 14 March 2019, during a supervision session with his CCO, Mr Snow, the respondent stated that he did not like having to fill in a diary and did not like his CCO knowing where he is and who he is with. After the reasons for these conditions being in place were explained him, the respondent stated that he will stay in his house and not contact anyone as he did not want his CCO to have contact with his family or people who meets;
on 28 March 2019, during a supervision session the respondent discussed with his CCO his wish to have visitors to his home and he expressed frustration that the [2019 supervision order] conditions and the UCW property rental agreement made this difficult for him. After the CCO reminded him that he would need to speak with UCW about such matters as his rental agreement prohibited people being at the property, the respondent stated that his CCO was not making things easy for him and that he wanted to see him put back into prison. The respondent then closed down during the session on a number of occasions and refused to engage in topics relating to his peers, sexual thoughts, interactions, positive pro‑social activities and release potential names in the event that a relationship developed into an intimate one;
on 4 April 2019, during a supervision session, the respondent informed his CCO of a female from the Pilbara region who was 4 years his junior and whom he liked. The respondent was asked to provide her name but he did not do so. The respondent self‑reported to his CCO that he had a picture of the woman naked on his mobile phone. Upon the CCO inspecting the phone, he noted that the respondent had accessed pornographic websites with 50 applications open in his phone history which included the following:
[particulars redacted for present purposes].
the respondent frequently requested a change of CCO due to his belief that Mr Snow asked too many questions of him and behaved like a Police Officer. On 18 April 2019, the respondent stated he wanted another CCO as he didn't feel comfortable with Mr Snow. Mr Snow informed him that a change would not be happening at that time however, the respondent was welcome to speak to his supervisor if he wished, but he declined.
on 9 May 2019, CCO Mr Kyle Jarvie made a home visit to the respondent's residence for the purposes of conducting a supervision session. During this visit, the respondent stated that Mr Snow was a 'military man' and needed to leave this behind when dealing with him. Mr Jarvie advised the respondent that he would face the same questioning, the same level of scrutiny no matter who his CCO was and encouraged him to work with Mr Snow. The respondent stated that he felt as though he was not free;
on 23 May 2019, the respondent raised his voice in a supervision session with Mr Snow stating that he was annoyed that he was directed to attend for urinalysis twice in that week. He stated he was frustrated with the conditions of the SO, could not do what he wants to, and that he felt that he is not permitted to do anything. The respondent was reluctant to provide information regarding people he wanted to spend time with, stating that he did not want Mr Snow or SOMS having contact with them. He also told Mr Snow that he should tell demand that UCW to let him have people into his house because he believed that his CCO was 'the man that can do this';
the respondent's engagement in supervision improved over the next 4 sessions but deteriorated again on 27 June 2019 when during a session he asked Mr Snow what he was hiding from him (the respondent), accusing him of sending the police around to spy on him and to speak to his family. He used derogatory words about SOMS and in particular, Detective Sgt Birtwistle, calling him an "arsehole" and the team 'arseholes'. He stated that the team and the SO was 'bullshit' and that if he wanted to, he could 'go out with a bang'. When Mr Snow asked him to explain what he meant, he replied: 'just wait, you watch'. He refused to supply the names of any of the associates and family members he stated he had interacted with over the previous weekend and added that he had seen women in the city who want to get to know him. The respondent stated that he was not happy with UCW as it had told him he cannot have people back to his home, which continued to upset him;
on 9 July 2019, a senior UCW case worker advised that staff from the agency visited the respondent's home earlier that day but he did not answer the front door. A telephone call was made to the respondent's mobile and he told the case worker he was not home. He eventually admitted he was not being truthful and answered the door. He appeared to be angry and refused to answer any questions the case worker asked him and upon being asked if he would like UCW staff to leave, he replied 'yes';
on 12 July 2019, Ms Kimberley Comery took over the role of the respondent's CCO. After the change, the respondent's engagement in supervision was noted to improve until it deteriorated again on 23 July 2019. On that date, Ms Comery directed the respondent to take an alternative route from his home to the [REDACTED] Shopping Centre as he had been travelling in dose proximity to an exclusion zone set up around [REDACTED] Reserve. Ms Comery also provided a map to the respondent to assist his understanding of her direction to which he became abusive and raised his voice, swearing at Ms Comery. He then screwed up the map, stood up and threw it in the bin directly behind Ms Comery, turned his chair to the wall and refused to speak to her further and so the supervision session was terminated. Ms Comery felt the screwed‑up piece of paper pass close by her face;
on 8 August 2019, the respondent was directed to attend urinalysis after his court appearance. The respondent reacted by stating: 'You and I are gonna have more words, you don't want a bloke to live, it's fucked, I'll give you something to breach me for, this is fucked'. He was escorted to Royal Perth Hospital to undergo urinalysis and was travelling in a vehicle afterwards, he stated to SOMS officers and Ms Comery: 'You guys been treating me bad, you are gonna get it like Kim did a few weeks back, she knows, she can tell you. I'm gonna have words with you tomorrow';
at the commencement of the 2019 supervision order, a mentor was arranged for the respondent via UCW, consisting of 10 x two hour sessions. The mentor met with the respondent at his home on 9 March 2019 during which the respondent told him that he has '3 women chasing him', one being his ex‑partner. He reported that he met another woman (one of the 3) in person stating that she is from his country area and she approached him when she saw him and he gave her some money;
on 11 April 2019, during a supervision session with Mr Snow, the respondent stated that he does not want to work with his mentor as he thinks that mentor may have an issue with him and he has not helped him at all. UCW attempted to make contact with the mentor on several occasions to discuss this but were unsuccessful. UCW later advised that the mentor service was no longer available;
[withdrawn by the applicant on 14/2/2020];
after the respondent's arrest on 9 August 2019, he was taken to Hakea Prison where at reception an 'Risk Management System - Reception Intake Assessment' form was completed with him. Question 6.7.2 in the Assessment form is: 'Do you normally use drugs (non‑prescribed)?' to which the respondent is indicated to have answered: 'Yes';
Question 6.7.3 in the Assessment form is 'Which of the following drugs do you use?' to which the respondent is indicated to have answered: 'Marijuana, once every couple of months';
On 7 August 2019, police attended the respondent's residence in [REDACTED] for the purposes of monitoring his compliance with his obligations under the 2019 supervision order. Under the conditions of his occupancy incorporated into a Participant Agreement dated 24 January 2018, no other person has permission to reside in the house.
Prior to answering the front door the respondent sprayed deodorant in the living room area. He then opened the front door and invited police inside. After a discussion, police inspected the rear yard and located a glass smoking implement near the rear sliding door.
The respondent admitted knowing the implement was there however denied ownership of it, claiming a friend had left it there before leaving the address earlier that day.
Police searched the yard and located 2 adult males hiding along a wall to the rear of the unit. They were identified as the respondent's relatives. The 2 males were searched and a small clip seal bag was found on one of them (later identified as [DC]). Mr [DC]'s eyes appeared glassy, he was slurring his words, unsteady on his feet, required some time to answer questions regarding his date of birth and address, and appeared to be affected by a substance, believed to be cannabis.
The contents of the clip seal bag were later analysed and found to be cannabis.
The glass smoking implement was also analysed and traces of tetrahydrocannabinol and other cannabinoids were detected on its inside surfaces.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
KR
Associate to the Honourable Justice Fiannaca
14 JUNE 2021
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