The State of Western Australia v Corbett [No 9] - [2023] WASC 20

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- CORBETT [No 9] [2023] WASC 20
CORAM:   FORRESTER J
HEARD:   25 NOVEMBER 2022 & 3 FEBRUARY 2023
DELIVERED          :   3 FEBRUARY 2023
PUBLISHED           :   6 FEBRUARY 2023
FILE NO/S:   SO 3 of 2012
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
TYRONE KINGSLEY CORBETT
Respondent

Catchwords:

Criminal Law - High risk serious offender - Review hearing - Whether the respondent remains a high risk serious offender - Whether continuing detention order should be affirmed or rescinded - Whether community would be adequately protected if the respondent released on a supervision order

Legislation:

Dangerous Sexual Offenders Act 2005 (WA) (repealed)
High Risk Serious Offenders Act 2020 (WA)

Result:

Supervision Order made

Category: B

Representation:

Counsel:

Applicant	:	B D Meertens
Respondent	:	D C Jones

Solicitors:

Applicant	:	State Solicitor's Office (WA)
Respondent	:	D C 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 3] [2014] WASC 442
Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4
The Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212
The State of Western Australia v ACW [No 3] [2022] WASC 41
The State of Western Australia v Corbett [No 5] [2017] WASC 115
The State of Western Australia v Corbett [No 7] [2021] WASC 318
The State of Western Australia v Corbett [No 8] [2021] WASC 171
The State of Western Australia v Gorham [2022] WASC 351
The State of Western Australia v MAR [No 3] [2022] WASC 371

Table of Contents

Introduction

Background

History of these proceedings

Findings on the contravention hearing

First periodic review

Evidence adduced by the State

Legal principles and statutory framework

Matters to be considered pursuant to s 7(3) HRSO Act

Any report prepared under s 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section - s 7(3)(a) HRSO Act

Evidence of Dr Galloghly (Senior Clinical and Forensic Psychologist)

Any other medical, psychiatric, psychological or other assessment relating to the offender (s 7(3)(b) HRSO Act)

Evidence of Ms Tania Wilson-Brown (Senior Counselling Psychologist)

Medical records

Community Supervision Assessment dated 21 June 2022 (Ms Jodii Nichols and Ms Aimee Goode (SCCO))

Information indicating whether or not the offender has a propensity to commit serious offences in the future (s 7(3)(c) HRSO Act)

Whether or not there is any pattern of offending behaviour by the offender (s 7(3)(d) HRSO Act)

Any efforts by the offender to address the cause, or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme (s 7(3)(e) HRSO Act); and

Whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender (s 7(3)(f) HRSO Act)

The offender's antecedents and criminal record (s 7(3)(g) HRSO Act)

The risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence (s 7(3)(h) HRSO Act)

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

Any other relevant matter (s 7(3)(j) HRSO Act)

Is the respondent a high risk serious offender?

Is it necessary to make a restriction order to ensure adequate community protection against the unacceptable risk that the respondent will commit a serious offence?

Continuing detention order or supervision order?

Engagement of respondent with treatment/supervision since contravention hearing

Accommodation and community support

Monitoring and GPS

Curfew

Alcohol and risk

Australian National Child Offender Register

Conclusion

Has the respondent satisfied the court on the balance of probabilities that he will substantially comply with the standard conditions?

Summary

SCHEDULE A

FORRESTER J:

Introduction

This is an application by the State of Western Australia for the first review of the continuing detention order imposed on the respondent by Fiannaca J on 1 June 2021.

Background

The respondent's offending history has been well-documented. It is necessary only for me to say that, between the ages of 15 and 26 years of age, on five separate occasions, the respondent committed offences of a serious sexual nature. All of the offences involved women known to him and, in some cases, women related to him. The offending involved violence and in a number of cases he was also convicted of deprivation of liberty. In one case, the respondent was armed with a knife. At the time of the majority, if not all, of the offences, the respondent was intoxicated.
As a juvenile, the respondent was also convicted of the manslaughter of a male, committed in a fight whilst he was intoxicated.
The respondent is now 44 years of age.

History of these proceedings

On 16 November 2012, McKechnie J declared the respondent to be a dangerous sexual offender within the meaning of the Dangerous Sexual Offenders Act 2005 (WA) (repealed) (the DSO Act).[1] He was released on 18 February 2013, when suitable accommodation became available.
[1] Director of Public Prosecutions (WA) v Corbett [2012] WASC 438.
On 24 March 2014, the respondent was sentenced to a total effective sentence of 7 months' imprisonment in relation to nine offences of contravening his supervision order, backdated to 31 July 2013. Revocation of the order was not sought at that time, although it was amended, and the respondent was released forthwith.
On 16 April 2014, the respondent was again charged with three offences of breaching his amended supervision order. On this occasion, the State sought an order that the respondent be indefinitely detained. On 25 November 2014, the supervision order was rescinded and the respondent was indefinitely detained in custody for control, care and treatment pursuant to s 23(1)(b) of the DSO Act.[2]
[2] Director of Public Prosecutions (WA) v Corbett[No 3] [2014] WASC 442.
On 8 February 2019, Hall J ordered that the respondent be released on a supervision order under the DSO Act (the 2019 supervision order).[3]
[3] Corbett v The State of Western Australia[No 6] [2019] WASC 37.
On 9 August 2019, the respondent was arrested for contravening the 2019 supervision order and was remanded in custody pending the outcome of the contravention proceedings.
On 31 May 2021, Fiannaca J found that the State had proved that the respondent had contravened the 2019 supervision order on a number of occasions.
Fiannaca J also considered a number of other incidents which did not constitute contraventions of the order but were relied upon by the State to establish that the respondent was likely to contravene the 2019 supervision order and were relevant to the decision whether to rescind the supervision order.[4]
[4] The State of Western Australia v Corbett [No 8] [2021] WASC 171 [192] ‑ [348].
His Honour found that the respondent remained a high risk serious offender and that the community could not be adequately protected against the unacceptable risk that the respondent would commit a serious offence, being a serious sexual offence, if he were to be released subject to the 2019 supervision order or an amended supervision order.[5] Further, Fiannaca J was not satisfied that the respondent would substantially comply with the standard conditions of a supervision order.[6]
[5] The State of Western Australia v Corbett [No 8] [2021] WASC 171 [541] ‑ [543].
[6] The State of Western Australia v Corbett [No 8] [2021] WASC 171 [544].
Accordingly, pursuant to s 55(1)(a) of the High Risk Serious Offenders Act 2020 (WA) (the HRSO Act),[7] his Honour ordered that the 2019 supervision order be rescinded and the respondent be detained in custody for an indefinite term for control, care or treatment.[8]

Findings on the contravention hearing

[7] The HRSO Act had replaced the DSO Act since the 2019 supervision order.

[8] The State of Western Australia v Corbett [No 8] [2021] WASC 171.

Fiannaca J found that the respondent had contravened the 2019 supervision order by:
(1)the respondent's failure to record his movements and contacts in his diary on 11 March 2019, which needs to be considered in the context of a failure to maintain his diary properly for the period 8 to 11 March 2019;
(2)the respondent's failure on 27 March 2019 to record in his daily diary that he had attended a shopping centre during the afternoon;
(3)the respondent being in the company of his aunt in a residential apartment on 20 May 2019, without having sought prior approval from his CCO to do so and his failure to record the contact in his diary; and
(4)the respondent's failure to attend a scheduled appointment with UnitingCare West (UCW) on 19 June 2019, as directed.[9]
[9] The State of Western Australia v Corbett [No 8] [2021] WASC 171 [186].
Under the heading 'What the respondent must do', Fiannaca J indicated that the respondent needed to work towards the goals identified by the forensic psychologists who gave evidence at the contravention hearing, Ms Ballantyne, and Dr Bannister.[10]
[10] The State of Western Australia v Corbett [No 8] [2021] WASC 171 [551].
Ms Ballantyne and Dr Bannister said that the respondent had outstanding treatment needs, being:
(1)exploring risk factors and developing better risk management strategies;
(2)to achieve a better understanding of his substance abuse and how it relates to offending behaviour, and ways to remove himself from high risk situations;
(3)to develop further coping and problem solving skills;
(4)to reinforce his understanding of relationships and how to establish boundaries.[11]
[11] The State of Western Australia v Corbett [No 8] [2021] WASC 171 [411], [438].
Ms Ballantyne also regarded the respondent's treatment needs as including challenging paranoid beliefs about his reporting team, developing emotional regulation and developing ways to manage anxiety.[12]
[12] The State of Western Australia v Corbett [No 8] [2021] WASC 171 [411].
Fiannaca J said:
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.[13]
[13] The State of Western Australia v Corbett [No 8] [2021] WASC 171 [551] ‑ [552].

First periodic review

Pursuant to s 64 of the HRSO Act, when an offender is subject to a continuing detention order, the State must apply for the offender's detention under the order to be reviewed so as to ensure that reviews are carried out at the times specified in s 64(2). In this case, the first annual review is required to be carried out as soon as practicable after 1 year after 31 May 2021.
The first review of the continuing detention order was initially listed to take place on 1 June 2022. However, it was adjourned until 25 November 2022 so as to ensure that, in the event that it was considered appropriate to release the respondent on a supervision order, suitable accommodation was available.

Evidence adduced by the State

At the hearing of this review, the State tendered, without objection, a Book of Materials, made up of 6 volumes of documents regarding the antecedents of the respondent, various reports prepared for sentencing proceedings and previous hearings under the DSO Act and HRSO Act and the:
(1)report of Dr Dylan Galloghly, Senior Clinical and Forensic Psychologist, dated 15 June 2022;
(2)report of Tania Wilson-Brown, Senior Counselling Psychologist dated 16 June 2022;
(3)Community Supervision Assessment, by Jodii Nichols, Senior Community Corrections Officer, Community Offender Monitoring Unit (COMU) dated 21 June 2022, endorsed by Aimee Good, Team Leader, COMU.
Pursuant to s 67 of the HRSO Act, the Chief Executive Officer (CEO) of the relevant Department (the Department of Justice) must engage one or more qualified experts to prepare reports in accordance with s 74 to be used on the review.
Pursuant to s 84(5) of the HRSO Act, in this hearing the court may receive into evidence:
(a)any document relevant to the antecedents or criminal record of the offender; or
(b)anything relevant contained in the official transcript of any relevant proceeding against the offender; or
(c)any relevant material that was tendered to the court, or that informed the court, in a relevant proceeding against the offender; or
(d)any relevant material of the kind mentioned in section 7(3) relating to the offender.
There is a great deal of material in the Book of Materials which is of peripheral relevance, but technically falls within s 84(5)(c) or (d). There is other material which is of very limited value in the form it is presented, such as lengthy medical notes. I will only refer to the evidence I consider to be 'acceptable and cogent evidence' in the course of these reasons.
The State called Dr Galloghly, Ms Wilson‑Brown, Ms Nichols and Ms Goode on the application, who gave evidence consistent with their reports.

Legal principles and statutory framework

The object of the review process was articulated by Hall J in The State of Western Australia v Corbett [No 5]:
The clear intention of the review process is to allow for the possibility of a change of circumstances. Detention under the DSO Act is not a punishment for a past offending: it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised. If circumstances change such that the risk of reoffending reduces or can be adequately managed in the community, then the continuing need for detention must be considered … It does not follow from this that a court conducting an annual review is bound by the factual findings made at previous hearings. In practice, however, there is usually little prospect that expert evidence on a review will call into question the previous finding that the respondent was a serious danger to the community ...
It is a significant thing to deprive a person of his liberty, not for something he has done but for something that he might do in the future. In order to justify detention on these grounds the evidence must be acceptable and cogent and establish the existence of a serious danger to the community to a high degree of probability: s 7(2) DSO Act. Such a finding requires satisfaction that there is an unacceptable risk that the person would commit a serious sexual offence if not placed under a supervision order or detained.
The risk of reoffending may change over time. It may be affected by age, health, or the successful completion of treatment. The availability of new technology or resources in the community may also affect whether the risk of reoffending can be managed by a supervision order. There is also the possibility that the risk may increase because of a failure of treatment or a relapse into deviant thinking.
The justification for making a continuing detention order is the existence of an unacceptable risk of serious sexual offending that cannot be adequately controlled by conditional release. However, detention also serves the purpose of allowing treatment and care in a secure environment: s 17 DSO Act. This confirms an obligation on the part of prison authorities to facilitate change by offering programmes and access to counselling.
If the risk changes or resources improve to enable more efficacious conditions then the need for detention may dissipate. In these circumstances, continuing detention may be unjust.
The review process is intended to ensure that detention only continues where necessary. It mitigates the otherwise draconian effect of imprisoning people for crimes that they have not committed. Reviews are not, therefore, a mere welfare check: they are an exercise of judicial power to affirm, vary or rescind a detention order. Continuing detention should not be ordered unless that course is justified by the circumstances existing at the time of the review. The court should choose the order that is least invasive of the person's right to be at liberty, whilst ensuring an adequate degree of protection of the community ... (citations omitted).[14]
[14] The State of Western Australia v Corbett [No 5] [2017] WASC 115 [8] - [13].
On review the court must determine whether an offender remains a high risk serious offender; that is, whether 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.[15] The State has the onus of satisfying the court that an offender remains a high risk serious offender.[16]
[15] HRSO Act s 68, s 7(1).
[16] HRSO Act s 7(2).
If the court does not find that the person remains a high risk serious offender, the continuing detention order must be rescinded. If the court determines that the offender remains a high risk serious offender, it must either affirm the continuing detention order, or, subject to s 29, rescind the continuing detention order and make a supervision order.[17]
[17] HRSO Act s 68.
It is a matter for the court conducting the review to independently decide whether the respondent is a high risk serious offender, and whether the continuing detention order should be affirmed, although the court conducting the review is entitled to have regard to, and give weight to, views expressed in earlier reviews and the original application.[18]
[18] The State of Western Australia v ACW [No 3] [2022] WASC 41 [27]; The State of Western Australia v MAR [No 3] [2022] WASC 371 [27].
In deciding whether to affirm the continuing detention order or make a supervision order, the paramount consideration is the need to ensure adequate protection of the community.[19]
[19] HRSO Act s 68(2).
The HRSO Act does not require that there be no risk of reoffending. The question is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community.[20]
[20] The Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33].

The court cannot make a supervision order in relation to an offender unless satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order, the onus of establishing which is on the offender.[21]
[21] HRSO Act s 29
The standard conditions of a supervision order are set out in s 30 of the HRSO Act and include the requirement that the offender not commit a serious offence during the period of the order.[22]
[22] HRSO Act s 30(2)(f).
In determining whether an offender 'will substantially comply with the standard conditions of the order', I respectfully adopt, without repeating here, the approach set out by Fiannaca J in Director of Public Prosecutions (WA) v Hart[23] at [39] ‑ [52].
[23] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4.

Matters to be considered pursuant to s 7(3) HRSO Act

Any report prepared under s 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section - s 7(3)(a) HRSO Act

Evidence of Dr Galloghly (Senior Clinical and Forensic Psychologist)

Dr Galloghly is a qualified expert within the meaning of the HRSO Act.[24] He prepared a report dated 15 June 2022. In preparation for that report, he interviewed the respondent on two occasions and had access to the State's Book of Materials. He also spoke to the respondent's treating psychologist and his Senior Community Corrections Officer (SCCO).
[24] HRSO Act s 3; Book of Materials Vol 5, 1665 [5].
The respondent engaged well in the assessment process. Initially, he described feeling positive about his future and having thought a lot about what he needs to do to comply with any future order. In the second interview he was less hopeful due to his recent prison incidents.[25]
[25] Book of Materials Vol 5, 1665.
The respondent told Dr Galloghly that he had been thinking a lot about working with his supervision team and complying with his conditions. He said he wanted 'to do the right thing by court and work with the team'. He still declined to talk about his offending in detail, although he did discuss them to some extent. He now says that he knows 'not to read people wrongly' and not 'to assume they want you'. He said he has learned to ask and clarify if a woman might be interested in a relationship with him, and said that if she was not, he should walk away. However, he also suggested that the complications associated with having a relationship in the community might prevent him engaging in one.[26]
[26] Book of Materials Vol 5, 1671 [33] - [34].
The respondent was able to articulate a plan to manage situations in which he might be encouraged to use alcohol or substances or engage in antisocial behaviour, with the primary strategy to call his support network and to assert himself towards inappropriate peers. He frequently referenced motivation to be open and honest with his supports and supervision team.[27]
[27] Book of Materials Vol 5, 1671 [36].
Dr Galloghly was of the view that, while perhaps out of character, the prison incidents in 2022 highlight the respondent's capacity for reactive violence and his low frustration tolerance, as well as ongoing issues with impulsivity, poor coping and a possible enhanced use of sex/pornography as a form of coping.[28]
[28] Book of Materials Vol 5, 1674 [55].
In Dr Galloghly's opinion, the respondent's plans for release are rudimentary and he will be highly reliant on professional support. His personal support is limited. He would benefit from assistance and encouragement to develop future vocational or employment goals, which could be culturally focused. Increasing his prosocial activity options will be beneficial in reducing his risk of reoffending, and his plans regarding fitness and art are positive in this regard.[29]
[29] Book of Materials Vol 5, 1675 [58] - [59].
Having regard to the potential issues involving the use of actuarial risk assessment tools in relation to Indigenous Australians in remote communities, Dr Galloghly limited his use of assessment tools to those which applied a Structured Professional Judgment (SPJ) approach. Such tools assist with individualised offending formulation, scenario planning and developing risk management strategies.[30]

Violence Risk Scale (VRS)

[30] Book of Materials Vol 5, 1675 [60] - [61].

This risk assessment tool is designed to assess the risk of violent reoffending for incarcerated individuals (among others). It contains static and dynamic factors and is used to assess offenders' level of violence risk, identify treatment targets linked to violence, and to evaluate an offender's readiness for change.
The respondent's risk of violent reoffending was found to be in the moderate range, or 'average'. He scored highly on static/historical factors associated with violent recidivism. The primary dynamic risk factors amenable to change and appropriate for future treatment and risk management plans pertain to work ethic/issues with employment, emotional control problems, negative peer associations, impulsivity, lack of stable relationships, substance abuse, limited community support and order compliance issues.[31]

Violence Risk Scale - Sexual Offence Version (VRS-SO)

[31] Book of Materials Vol 5, 1676 [63] - [65].

This is a sexual violence risk assessment tool designed to integrate risk, need, responsivity and treatment change factors relevant to sexual offenders. It contains static and dynamic factors and is used to assess offenders' level of risk, identify treatment targets linked to sexual offending, and to evaluate an offender's readiness for change.[32]
[32] Book of Materials Vol 5, 1677 [66].
The respondent's risk of sexual violence recidivism was found to be in the average range. Taking into account the standard error of measurement, Dr Galloghly considered this to be the same as a 'moderate to high' risk. He agreed there was no statistically significant change in the respondent's assessed risk since Dr Bannister's assessment in 2019.[33]
[33] ts 1204.
Again, the respondent scored highly on static/historical factors associated with sexual violence recidivism. His dynamic risk factors primarily relate to substance abuse, impulsivity, lack of community support and community supervision compliance issues as well as emotional control issues.[34]
[34] Book of Materials Vol 5, [66] - [68].
The rate of sexual recidivism for a person with a risk level in the average range in a five year period is between 7.4% and 14.9% and in a ten year period between 11% and 19.9%.[35]

3-Predictor Model

[35] ts 1201; Book of Materials Vol 5, 1677 [67].

This is an instrument developed in Western Australia to evaluate risk of sexual and violent reoffending for Indigenous Australian male offenders. It encompasses an evaluation of an offender's dynamic risk from a cultural perspective in terms of their ability to develop feasible release plans, realistic long‑term goals and to cope in a functional manner. The model has been found to have high predictive accuracy for recidivism in the target population group.[36]
[36] Book of Materials Vol 5, 1677 [69].
Dr Galloghly assessed the respondent's release plans as feasible and consistent with his current options. His longer term plans were also realistic. However, the respondent does present with some major problems with coping, at times displaying inappropriate mechanisms such as substance abuse and violent reactions.[37]
[37] Book of Materials Vol 5, 1678 [70].
Dr Galloghly is of the view that the respondent's risk of non‑sexual violence and sexual violence both fall within the average range, with his risk of non-sexual violence possibly being slightly higher. His primary risk factors are issues with employment/work ethic, emotional control problems, impulsivity, lack of stable relationships, negative peer associations, substance abuse, limited community support and order compliance issues. He also has poor coping skills. Substance use is his most critical risk factor for recidivism.[38]

Opinion

[38] Book of Materials Vol 5, 1678 [71] - [72].

The respondent's risk of committing a serious offence is consistent with his overall risk of violent and sexual violence recidivism. One of the most likely scenarios involves impulsive and reactionary violence in response to frustration or perceived provocation. Another is the perpetration of a violent sexual assault of a female known to the respondent who may have resisted his advances. Substance use would likely increase the likelihood of occurring and the severity of violence involved.[39]
[39] Book of Materials Vol 5, 1678 [73] - [74].
A third, more serious, scenario would be the perpetration of violence, either sexual or non‑sexual, to a victim either known or unknown to the respondent while he is intoxicated. Severity of violence would be exacerbated by impulsive use of a weapon.[40]
[40] Book of Materials Vol 5, 1678 [75].
The respondent's treatment needs are in the domains of substance use, emotional control/coping issues, impulsivity, intimate relational issues, interpersonal issues, community support/vocational issues and order compliance.[41]
[41] Book of Materials Vol 5, 1679 [79].
Dr Galloghly noted the respondent's proclivity to become overwhelmed with order compliance, and suggests that supervision practices should take account of this.[42]
[42] Book of Materials Vol 5, 1681 [86].
In Dr Galloghly's view, if the respondent were not subject to a restriction order, his risk of engaging in substance abuse would be elevated, because of the social group he would be engaged with.[43]

Any other medical, psychiatric, psychological or other assessment relating to the offender (s 7(3)(b) HRSO Act)

Evidence of Ms Tania Wilson-Brown (Senior Counselling Psychologist)

[43] ts 1216.

Ms Wilson-Brown prepared a report dated 16 June 2022. She interviewed the respondent, Senior Clinical Psychologist Ms Matringe, and Senior Community Corrections Officer (SCCO) Ms Nichols. She also had access to Department records and the State's Books of Materials.[44]
[44] Book of Materials Vol 5, 1682 - 1683.
The respondent presented at interviews with a settled mood, and was responsive and generally optimistic. In his second interview he appeared more despondent when discussing potential court outcomes, although he reported he remained future‑focused and in interview, the respondent appeared highly motivated to focus on his future behaviour to avoid further issues if he were released into the community.[45]
[45] Book of Materials Vol 5, 1686 [22].
The respondent accepted responsibility for previous contraventions, although some continued externalisation to others was evident. He described his interactions with his risk management team in the community as highly stressful and confusing, and indicated that he felt judged and belittled. He noted that he subsequently responded by being hostile and resistant in his interactions with his risk management team.[46] The respondent said that he would 'make an effort' to have a good working relationship with his CCO on his next release.[47]
[46] Book of Materials Vol 5, 1685.
[47] Book of Materials Vol 5, 1684 [12].
Ms Wilson-Brown confirmed that the respondent had resumed counselling sessions with Ms Matringe since his last review.[48]
[48] Book of Materials Vol 5, 1685 [13].
During the course of the previous supervision order, attempts to improve the respondent's socialisation were unsuccessful, and he appeared to struggle to do tasks independently. Ms Matringe suggested that this could be related to the respondent feeling vulnerable, as a result of cultural issues, and unfamiliarity of living in a metropolitan area.[49] The respondent also reported to Ms Matringe that, precipitating his contraventions, he had felt lonely in his accommodation in the community.[50] Ms Matringe expressed her support for a mentor to be utilised, in conjunction with ongoing psychological treatment, to develop the respondent's socialisation skills.[51]
[49] Book of Materials Vol 5, 1685 [15].
[50] Book of Materials Vol 5, 1684 [12].
[51] Book of Materials Vol 5, 1685 [15].
Ms Matringe described the respondent as seeming more pro‑active and aware of what is expected of him than what he has previously displayed.[52] She said that the respondent had identified that, in the community, he had become upset following interactions with his risk management team and had vented to peers, which at times was unhelpful and may have contributed to his resistance response. A suggestion made by the respondent, and supported by Ms Matringe, was that the respondent be able to have contact with Ms Matringe after appointments to enable him to debrief, and to discuss better strategies to handle his responses.[53]
[52] Book of Materials Vol 5, 1685 [17].
[53] Book of Materials Vol 5, 1686 [18].
As to the respondent's engagement with professional supports such as Uniting WA, he reported he would be happy to work with his current officer who he is familiar with.[54]
[54] Book of Materials Vol 5, 1686 [19].
Ms Matringe reports that the respondent is open to discussing his sexual offending in counselling, and how his distorted beliefs about consent, and violent sexual behaviour, were developed. She says he is aware of his difficulties reading body language, and how he has misread cues for sexual activity. In counselling, there has been a focus on working through issues of consent, and how to manage this, and this will remain an ongoing treatment goal if the respondent were released, with scenario planning focus on risk situations specific to the environment he is released into.[55]
[55] Book of Materials Vol 5, 1686 [20].
Ms Matringe has confirmed that if the respondent is released on a supervision order, she will continue to see him for weekly counselling sessions. Treatment goals will continue to address his re‑integration and interactions with risk management staff, and managing high risk situations. If the respondent were to remain in custody, Ms Matringe reported that she would suspend counselling and re‑engage closer to his next review date.[56]
[56] Book of Materials Vol 5, 1686 [21].
The respondent told Ms Wilson that his self‑harming behaviour in custody was in response to hearing voices, and was not a deliberate suicide attempt. He said he was unable to recognise the voice and that he had not slept well for some time, but reported being able to sleep better and that his hearing voices had ceased after he was given medication. The respondent indicated that if the voices returned, or if he was experiencing stress, he would talk to officers rather than attempt to deal with it on his own.[57]
[57] Book of Materials Vol 5, 1688 [26].
The respondent said that in his sessions with Ms Matringe they have discussed his understanding of his supervision order conditions, and compliance with this order. The respondent said he now he understands that if he is not sure about something, he should ask. Similarly, he noted that if he was struggling or unsure of what he can or cannot do, he could 'ring CJS or SOMS'.[58]
[58] Book of Materials Vol 5, 1688 [31].
The respondent noted that he has felt 'paranoid about police', which he attributed to his history of being assaulted by police and believing that they are trying to frame him. The respondent explained that he remains unsure of the intentions of police, and that these feelings extend to COMU and his CCO.[59]
[59] Book of Materials Vol 5, 1688 - 1689 [31].
When Ms Wilson-Brown asked the respondent how he would manage his interactions with staff in the future, he said he would 'just agree to whatever they want me to do. They'll sit down and talk, and I'll agree to everything'. The respondent did not anticipate any issues with managing his emotions or his paranoia in this regard.[60]
[60] Book of Materials Vol 5, 1689 [31].
In discussing his compliance under his rescinded supervision order, the respondent accepted that he had breached the conditions, but attributed this to a previous CCO not providing 'feedback on what [he] can do'.[61]
[61] Book of Materials Vol 5, 1689 [31].
The respondent reported that his coping strategies are calling one of his supports, going for a walk, communicating to people that he is in a mood and to leave him alone, or having a 'breather'. He described having a 'breather' as creating some breathing space when he is feeling upset, then focusing on controlling his breathing. Although the respondent stated that he has utilised these skills in prison, he also acknowledged the lapse when he reacted aggressively to another prisoner at Casuarina Prison.[62]
[62] Book of Materials Vol 5, 1689 [32].
The respondent initially stated to Ms Wilson-Brown that he did not want to speak about his offences as he was 'trying to move on' and is focused on complying with the expectations of the court. He says he will not be an ongoing risk to others, as he will have a tracking device, will be monitored and will be writing things in his diary. However, Ms Wilson‑Brown noted that as the assessment progressed, the respondent stated that he would talk to staff about his offences as he recognised that he needed help to avoid re‑offending in the future.[63]
[63] Book of Materials Vol 5, 1689 [33].
The respondent identified his high‑risk situations for sexual re‑offending as 'thinking that females like me and they want to be with me' and acknowledged that this thinking was wrong. In order to avoid re‑offending, the respondent said that he would now ask a female if she was interested before considering engaging in sexual activity.[64]
[64] Book of Materials Vol 5, 1689 [33].
Another high-risk situation that the respondent identified was if females around him were intoxicated or using drugs. He reported that if he found himself in this situation, he would walk away or go home.[65]
[65] Book of Materials Vol 5, 1689 [33].
The respondent denied any interest in pursuing an intimate relationship if he was released into the community. He noted that he may become interested in three months once his release environment is 'controlled'.[66]
[66] Book of Materials Vol 5, 1689 [33].
The respondent denied drug or alcohol use as an ongoing risk factor, stating that he would not use as he would be subject to urinalysis and breath analysis on a HRSO order. To avoid breaching the conditions of his order, the respondent said that if he was offered drugs or alcohol he would say, 'I'm on an order, I'm on parole, I don't want to go back to jail', and would walk away. He noted that he was very confident in his ability to refuse offers, including ones made by his family members.[67]
[67] Book of Materials Vol 5, 1689 [34].
The respondent expressed that he was upset at family members who he feels have attempted to derail his progress in the community. To ensure that he complies with the conditions of his supervision order, the respondent reported that he would not be around family members who are using alcohol or drugs.[68]
[68] Book of Materials Vol 5, 1689 [34].
He mentioned using other means such as FaceTime calls to maintain contact with his family. In particular, the respondent stated that his sister, Nina Corbett, is a good support that he can get in contact with if he is upset. However, he did note that she was very busy, as she has five children and has 'her own problems'.[69]
[69] Book of Materials Vol 5, 1689 [34].
The respondent stated that ongoing treatment in the community would be helpful, specifically on how to avoid breaching his order, managing his paranoia, and talking about his coping strategies. He stated that Ms Matringe could assist him by reminding him to ask for help from his CCO, and that he can talk to her or write any issues down to avoid 'getting boiled up'. He reported that his contact with Ms Matringe following his supervisions sessions were helpful to avoid any negative emotions escalating.[70]
[70] Book of Materials Vol 5, 1690 [35].
The respondent said that, if he were to be released into the community, he would focus on other goals such as his painting and artwork, which he hoped would be recognised by Aboriginal people. Another focus of his would be to finish his supervision order, and reunite with his family in Perth.[71]
[71] Book of Materials Vol 5, 1690 [35].

Ms Wilson-Brown reported that, if the respondent were to remain in detention, the current treatment plan would be suspended. The respondent's mental health, mood and coping in prison could be attended to by prison‑based psychological and psychiatric staff.[72]
[72] Book of Materials Vol 5, 1691 [41].
If the respondent were to be released into the community, regular and initially more intensive psychological intervention would continue.[73] Ms Wilson‑Brown noted the respondent's treatment goals as follows:
Treatment goals should remain focussed on addressing risk-relevant treatment targets, such as: his coping with his adjustment to the community and engagement with risk management team; further development and monitoring of his emotional regulation skills; further identifying high risk situations specific to his release environment and ongoing development of risk management strategies through scenario planning and rehearsal; continued reinforcement of his understanding of cues for sexual activity and consent; monitoring his sexual arousal, plans for meeting his sexual needs, and his desire for sexual activity or intention to form an intimate relationship; assertiveness and boundary setting with family members and peers; continued rehearsal of his substance use release prevention plan to maintain abstinence from alcohol and drug use; and developing his plans to engage in meaningful activities in the community.[74]
[73] Book of Materials Vol 5, 1691 [42].
[74] Book of Materials Vol 5, 1691 [42].
Ms Wilson-Brown also suggested, consistent with Ms Matringe's support for a mentor, that an Aboriginal mentor should be considered and incorporated into the respondent's support network.[75]

Medical records

[75] Book of Materials Vol 5, 1691 [42].

The respondent has a number of health issues, including diabetes hypertension, problems with his kidneys and lungs, and atrial fibrillation. He is receiving medical treatment for these conditions and they are managed at this time.[76] His mental health has been assessed as stable.[77]

Community Supervision Assessment dated 21 June 2022 (Ms Jodii Nichols and Ms Aimee Goode (SCCO))

[76] Book of Materials Vol 1, 214 - 216.

[77] Book of Materials Vol 5, 1685 [14], 1691 [36].

After the respondent's reception into custody on 9 August 2019, he was detained in Casuarina Prison and, more recently, Roebourne Regional Prison.
The respondent is classified as a medium security prisoner and was regarded as a quiet prisoner who keeps a low profile. He is studying part‑time and is regarded to be an average student.[78] He advised he was volunteering as a peer support worker and spends time exercising, keeping fit and doing art.[79]
[78] Book of Materials Vol 1, 202.
[79] Book of Materials Vol 5, 1671 - 1672 [38].
While in Casuarina, he received no social contact visits from friends or family, as they all reside in Port Hedland. He did maintain contact with them by phone.[80]
[80] Book of Materials Vol 1, 203.
On 20 January 2022, the respondent requested and was granted transfer from Casuarina Prison to Roebourne Regional Prison, as it allowed him to feel connected to country and allows for social visits with his family.[81] However, the respondent still did not receive any social visits, which he attributes to the fact that his family had not received COVID‑19 vaccinations and were therefore prohibited from visiting the prison.[82]
[81] Book of Materials Vol 5, 1694.
[82] Book of Materials Vol 5, 1696 - 1697.
Ms Nichols commenced supervision of the respondent on 20 February 2022.
The respondent expressed to Ms Nichols that he found it difficult to balance the expectations of his supervision order with his desire to reconnect with his family. He repeated his concerns about his relationship with his risk management team, but also acknowledged that there were alternative and more productive ways about managing those concerns and indicated that he intends to accept his conditions and is motivated to work collaboratively with the risk management team.[83]
[83] Book of Materials Vol 5, 1694.
He has been involved in a number of prison incidents, the majority of which have occurred since May 2022. In April 2020, he incurred one prison charge for fighting.[84] On 27 May 2022, he became disruptive and violent, and smashed four large security windows.[85] On 3 June 2022, the respondent attempted to access pornography on a computer to which he had been given access for a telehealth appointment.[86] On later being told that the incident would be referred to Prison Prosecutions, he became upset and head butted the wall, causing his forehead to bleed. On being taken to the medical centre, he got out of bed and again head butted the wall.[87]
[84] Book of Materials Vol 1, 199.
[85] Book of Materials Vol 5, 1641 - 1648.
[86] Book of Materials Vol 5, 1655 - 1659.
[87] Book of Materials Vol 5, 1649 - 1653.
In a discussion with his SCCO, the respondent identified a number of stressors, including not wanting to be transferred back to Perth for his review hearing, lack of contact with his lawyer, lack of contact with his family, flashbacks of his mother's death, ruminating over the time he has spent in custody, inability to have a single cell and discussions about possible release from custody.[88]
[88] Book of Materials Vol 5, 1696.
Ms Nichols reported that the respondent has been subject to random urinalysis and breath testing over the past 12 months, all of which have returned a negative result.[89]

Information indicating whether or not the offender has a propensity to commit serious offences in the future (s 7(3)(c) HRSO Act)

[89] Book of Materials Vol 5, 1696.

I am satisfied, based on the antecedents of the respondent, that he does have a propensity to commit serious offences in the future, particularly if he is intoxicated.

Whether or not there is any pattern of offending behaviour by the offender (s 7(3)(d) HRSO Act)

The respondent's offending behaviour followed a relatively clear pattern, involving intoxication and non‑consensual sexual advances on women he is either related to or at least knew. Those sexual advances became increasingly violent and on one occasion involved a knife, significantly increasing the level of risk to his victim.

Whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender (s 7(3)(f) HRSO Act)

The fact that the respondent has generally declined to discuss his previous offending in detail has consistently been a hindrance to him participating effectively in conventional rehabilitation programmes. However, he has engaged well with Ms Matringe, and she reports that he has gained an awareness of his offending cycle, and they have worked on his interpersonal issues, and order compliance. He has also demonstrated an increased ability to seek assistance, although he has still had lapses in behaviour when frustrated and faced with stressors with which he was unable to cope.
It appears to be generally accepted that the respondent is unlikely to make any further significant treatment gains in a detention setting.[90]
[90] ts 1207.
The respondent has expressed a willingness to engage again with Ms Matringe, and, importantly, to work with Uniting WA to assist with his transition to the community.

The offender's antecedents and criminal record (s 7(3)(g) HRSO Act)

I have earlier addressed the respondent's criminal history and his conduct in custody. While I have taken it into account, it is unnecessary to recite his personal background for the purposes of this decision.

The risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence (s 7(3)(h) HRSO Act)

I accept the evidence of Dr Galloghly that, if he were not subject to a restriction order, the respondent would be a moderate to high risk of sexual re‑offending. In the respondent's case, I am of the view that such re‑offending would constitute a 'serious offence' within the meaning of the HRSO Act.

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

The type of offence likely to be committed by the respondent is very serious. His victim is likely to be a vulnerable female, intoxicated or asleep. His offending is likely to involve the opportunistic or improvised use of a weapon, and he will likely be intoxicated, increasing the risk of disinhibition on his part. The potential for serious physical or psychological injury is high. In those circumstances, the need for protection of the community is very high.

Any other relevant matter (s 7(3)(j) HRSO Act)

There is no evidence that the respondent has engaged in substance abuse in the community. He has expressed a commitment to remaining abstinent from those substances. However, one of the significant issues the respondent has experienced in complying with his supervision order conditions is the fact that family members and friends with whom he seeks to associate are often engaged in substance misuse. The extent of the supervision of the respondent, and the strict conditions to which he is subject have acted, so far, to prevent the respondent using substances. However, the respondent has not had a sustained period in the community which has enabled his good intentions to be properly tested.
Similarly, the respondent has not committed a serious offence since 2005. His offending since that time has been confined to contravening the conditions of his supervision orders. However, as Hall J observed in Corbett [No 7],[91] in remarks echoed by Fiannaca J in Corbett [No 8],[92] while taken together many of the alleged contraventions were minor, there appeared to be good reasons for the authorities to be concerned as to their ability to manage the respondent. Further, the respondent's contravention of the condition not to be in the presence of adult females without permission had the potential to increase risk, when the very purpose of the conditions was to minimise risk.
[91] The State of Western Australia v Corbett [No 7] [2021] WASC 318 [51].
[92] The State of Western Australia v Corbett [No 8] [2021] WASC 171 [544].
Of course, for a significant period of time since 2005, the respondent has been in custody and for the remainder he has been under extremely strict conditions, and it is not possible to determine whether the respondent would have refrained from committing serious offences in the absence of those conditions. Accordingly, while I take into account the length of time since the respondent has committed a serious offence, it is not a factor to which I am able to ascribe significant weight at this time.

Is the respondent a high risk serious offender?

I have found that the risk of the respondent committing a serious offence, of a sexual nature, is moderate to high. It is likely that such offending would occur when the respondent is intoxicated, and the victim is vulnerable. The potential impact of the type of serious offence which the respondent is at risk of committing involves severe physical and/or psychological harm to a section of the community, namely women to whom he is related or with whom he becomes acquainted.
Against that, I must balance the likely consequences to the respondent of finding that he constitutes an unacceptable risk, those consequences being considerable limits on his liberty regardless of the type of restriction order imposed, in circumstances in which he has not committed a serious offence, or engaged in substance misuse, for a lengthy period.
Having carried out that balancing exercise, I am satisfied to a high degree of probability that the risk that the respondent will commit a serious offence unless subject to restriction is an unacceptable one.

Is it necessary to make a restriction order to ensure adequate community protection against the unacceptable risk that the respondent will commit a serious offence?

In my view, the evidence adduced in this matter compels the conclusion that it is necessary to make a restriction order to ensure adequate community protection against the risk I have outlined.
If the respondent is not supervised closely, and if he is not provided with the level of intensive support which is provided under a restriction order, the prospects of the respondent committing a serious offence are high. The adequate protection of the community requires that he be carefully monitored and supervised to reduce that risk, and also that he be provided with intensive support to continue to develop the skills, relationships, community supports and structure which will help to further reduce his risk in the future.
I am satisfied of that necessity to a high degree of probability.

Continuing detention order or supervision order?

At the time of Ms Nichols' assessment, the respondent was on the waitlist for the Uniting WA HRSO Supported Accommodation Program. The respondent's counsel sought an adjournment of the review hearing, on the basis that the absence of suitable accommodation made releasing the respondent on a supervision order practically impossible, even if the evidence was otherwise in favour of such an outcome.
I considered it appropriate to hear the evidence on the issue of whether the respondent remained a high risk serious offender and to then adjourn the hearing for a short period to see if accommodation could be sourced.
In late December 2022, the court was notified that accommodation was likely to become available in late January 2023. Accordingly, the review hearing was resumed on 3 February 2023.

Engagement of respondent with treatment/supervision since contravention hearing

In his judgment rescinding the 2019 supervision order, Fiannaca J indicated that the respondent would need to find a way to understand the need for the strict conditions of a supervision order, and that cooperation and compliance on his part may result in the easing of restriction.
His Honour suggested that would require the respondent to engage in further treatment, preferably with Ms Matringe. However, at the review hearing, the evidence was to the effect that Ms Matringe saw little benefit, from a clinical perspective, in significant engagement until there was a release plan in existence.[93] Accordingly, there has been no ongoing counselling, although Ms Matringe has seen the respondent on five occasions, during which there has been meaningful discussion regarding the respondent's contraventions, and strategies to prevent their recurrence.
[93] ts 1207.
Fiannaca J also recommended the respondent 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. From the evidence of Ms Nichols, it is apparent that the respondent has engaged constructively with her, and there is room for optimism that the respondent has a greater appreciation of the extent of cooperation required of him if the continuing detention order is to be rescinded.

Accommodation and community support

As indicated above, since the initial hearing of this matter on 25 November 2022, accommodation has become available for the respondent.
A Desktop Spatial Analysis conducted by the Western Australian Police Force establishes that there are some single female residents living within 100m of the address, and some families, including children, who have been the subject of family violence reports live within 500m of the address. Given the likely risk scenarios for the respondent, the risks to these vulnerable groups are manageable. Further, exclusion zones are able to be utilised for high risk areas such as open parks and licensed premises.
In addition to housing, Uniting WA provide reintegration support during the first two years of release. Uniting WA have confirmed that the following support will be available to the respondent, should he be released on a supervision order:
(1)practical support (initial transportation to mandatory appointments as well as teaching the respondent how to use public transport);
(2)information and guidance in decision making;
(3)life skills training (including, but not limited to, budgeting skills, basic technology training, cooking skills, assistance with utilising effective communication in the community, connecting the respondent with health care professionals, assisting the respondent search for permanent accommodation options, linking the respondent with organisations that can assist with furniture for the new accommodation);
(4)referrals to long-term community services; and
(5)linking the respondent to recreational activities including sport, hobby and interest groups.[94]

Monitoring and GPS

[94] Book of Materials Vol 5, 1697 - 1698.

If released on a supervision order, the respondent would be subject to GPS monitoring. However, the limitation of GPS monitoring is that it does not indicate who the respondent is with, or what he is doing.[95]
[95] Book of Materials Vol 5, 1700.
For this reason, the 2019 supervision order contained a diary condition. However, Dr Galloghly did not support this condition being included in any future supervision order, noting that the respondent reported considerable difficulty with compliance, for reasons which are detailed in Corbett [No 8].[96]
[96] Book of Materials Vol 5, 1700.
In my view, the problems which arose from the respondent's difficulty in complying with this condition were disproportionate to the benefit of it. There is no reason why the respondent should not be asked to provide verbal information about his movements and associations, but the requirement to maintain a written diary, with penalty for non‑compliance, is inappropriate in the case of the respondent.
The conditions providing for scrutiny of the respondent's devices are, in my view, appropriate and necessary in the absence of the diary condition.

Curfew

Ms Nichols noted that a curfew requirement can assist in providing stability and structure to the respondent and would reduce the likelihood of the respondent encountering antisocial behaviour that could increase his risk.[97] In my view, a curfew condition is appropriate in the case of the respondent for these reasons.

Alcohol and risk

[97] Book of Materials Vol 5, 1700.

Ms Nichols reported that urinalysis would be undertaken on a frequent and random basis.[98] Given Dr Galloghly's opinion that substance use is the most critical risk factor for the respondent, this is a critical condition; a positive result would be indicative of significantly elevated risk on the part of the respondent.

Australian National Child Offender Register

[98] Book of Materials Vol 5, 1701.

Ms Nichols reported that, should the respondent be released in the community, he would be subject to reporting obligations and would not be permitted to have contact with other convicted child sexual offenders, pursuant to the Community Protection (Offender Reporting) Act2004.[99]

Conclusion

[99] Book of Materials Vol 5, 1698 - 1699.

In my view, the evidence establishes that the risk to the community posed by the respondent can be adequately managed by a supervision order with appropriate conditions, including those outlined above. That is, in part, demonstrated by the fact that the respondent has not committed a serious offence while in the community since 2005. It is also shown by the progress the respondent has made towards awareness of his offending cycle and his continued abstinence from substance abuse, and his motivation to work more productively with his risk management team in the future.
While I accept that there are limitations on all of these factors as positive indicators of progress on the part of the respondent, it is unrealistic to expect that there will not be difficulties, even sometimes significant ones, in managing offenders who are subject to the HRSO Act.

Further, the longer term protection of the community is also advanced by an order which facilitates the gradual reintegration of the respondent into the community, in such a manner which provides continued development of the skills necessary for the respondent to function in that community.

Has the respondent satisfied the court on the balance of probabilities that he will substantially comply with the standard conditions?

The respondent did not give or adduce evidence at the hearing. However, there is evidence on the State case which enables me to determine this issue.
In The State of Western Australia v Gorham,[100] Archer J, citing Fiannaca J's observations in Hart, said:
… his Honour made a number of other useful observations in relation to the assessment of prior contraventions, to the following effect:
(1)self‑evidently from the statutory scheme, the fact that the respondent has contravened the conditions of a supervision order will not necessarily result in a continuing detention order;
(2)given the onerous nature of supervision orders, missteps are to be expected; and
(3)the frequency or regularity of contraventions might inform the question of whether the person will substantially comply.
[100] The State of Western Australia v Gorham [2022] WASC 351 [31] (citations omitted).
Those observations have considerable relevance to the respondent's case. The respondent contravened the 2019 supervision order on a number of occasions, and his conduct overall demonstrated to Fiannaca J that he was likely to contravene the conditions of the 2019 supervision order and there were no other reasonable conditions that would provide adequate protection of the community if he were to be released on a supervision order. Further, and in any event, his Honour was not satisfied that the respondent would substantially comply with the standard conditions of a supervision order.[101]
[101] The State of Western Australia v Corbett [No 8] [2021] WASC 171 [548] - [550].
In Corbett [No 8], the respondent was found by Fiannaca J to have contravened conditions 4, 12, 41 and 43 of the 2019 supervision order. Condition 4 was a standard condition, equivalent to the standard condition contained in s 30(2)(d), which requires the respondent to be under the supervision of a community corrections officer and to comply with any reasonable direction of the officer (including a direction for the purposes of s 31 or s 32). The respondent was found to have contravened this condition on at least three occasions.
The evidence established that, since that hearing, the respondent has given considered thought to how to conduct himself if a supervision order is made in relation to him in the future. He has expressed his motivation to comply and work more constructively with the risk management team of Dr Galloghly, Ms Matringe and Ms Wilson‑Brown and, in counselling with Ms Matringe, has developed strategies to manage his frustrations.
On a practical level, the respondent has also actively engaged with Ms Nichols, and appears to have established at least a basic rapport with her.
It also appears that Uniting West has engaged a mentor for the respondent, which would be a very positive step in developing his supports in the community.[102]
[102] ts 1215.
Some fairly minor amendments to the conditions of the supervision order are also likely to prevent some of the problems which arose under the 2019 supervision order.
On the basis of this evidence, I am satisfied that the respondent will substantially comply with the standard conditions of a supervision order.

Summary

I am satisfied, to a high degree of probability, that it is necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence. Accordingly, I am satisfied that the respondent remains a high risk serious offender within the meaning of the HRSO Act.
I am also satisfied that a supervision order is sufficient to adequately protect the community against the risk identified, and that a detention order is not necessary to do so.
I am also satisfied that the respondent has established, on the balance of probabilities, that he will substantially comply with the standard conditions of a supervision order.
In my view, the appropriate term of the order is 5 years and the appropriate conditions are as set out in the schedule to these reasons.
Having heard the parties, I am satisfied that it is practically feasible for the supervision order to take effect 20 days from today.

SCHEDULE A

IN THE SUPREME COURT OF WESTERN AUSTRALIA

SO 3 of 2012

IN THE MATTER of the High Risk Serious Offenders Act 2020

THE STATE OF WESTERN AUSTRALIA Applicant

-and-

TYRONE KINGSLEY CORBETT Respondent

_________________________________________________________________________

SUPERVISION ORDER MADE BY THE HON JUSTICE FORRESTER
ON 3 FEBRUARY 2023
_________________________________________________________________________

Pursuant to section 68(1)(b) of the High Risk Serious Offenders Act 2020 (WA), the Court, having found that the Respondent is a high risk serious offender within the meaning of section 7(1) of the High Risk Serious Offenders Act 2020 (WA), makes a supervision order in relation to the Respondent, for a period of 5 years from 23 February 2023 on the following conditions:

You, TYRONE KINGSLEY CORBETT, must:

STANDARD CONDITIONS REQUIRED BY THE HRSO ACT

Report to a Community Corrections Officer (CCO) at the East Perth Adult Community Corrections Centre, 30 Moore Street, East Perth, Western Australia within 48 hours of the Order being issued and advise the officer of your current name and address.
Report to, and receive visits from, a CCO as directed by the court.
Notify a CCO of every change of your name, place of residence, or place of employment at least 2 business days before the change happens.
Be under the supervision of a CCO, which includes complying with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32).
Not leave, or stay out of, the State of Western Australia without the permission of a CCO.
Not commit a serious offence during the period of the Order.
Be subject to electronic monitoring under section 31.

ADDITIONAL CONDITIONS

Residence

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

Report to a CCO and supervision by a CCO

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

Attendance at programs or treatment

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

Reporting to WA Police

Report to the Officer-in-Charge of the Serious Offender Management Squad (SOMS) at the Hatch Building, 144 Stirling Street, Perth WA 6000 within 48 hours of your release from custody, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the Serious Offender Management Squad or his/her delegate or authorised person.
Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004.
If requested, permit Police Officers to enter and search your residence, vehicle and/or person for the purpose of monitoring your compliance with your obligations under this order and allow the seizure of any such items that the Police Officer believes to contravene the conditions of the order.
Remain at your residence and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the High Risk Serious Offenders Act 2020.
When requested, advise Police of the names of all of your internet service providers, all mobile or landline telephone services used by you, and all screen name(s), user name(s), email addresses. Further authorise police officers from the Western Australian Police Force to access any cloud-based platforms or services associated with the devices you use, and examine the internet accounts at any time for the purposes of monitoring your online behaviour (absence any investigation for any offence).
Permit a CCO or WA Police to access upon request any computer, telephone or other device capable of storing digital data (electronic storage device), at any location nominated by the CCO or WA Police for the purpose of ascertaining your computer activities.
Provide to the CCO or WA Police upon request any passwords, or any other means used to unlock or access any computer, telephone or electronic storage device, as may be required for the access described in condition 19.
With respect to any computer or telephone in your possession that is connected to the internet or has been used by you to access the internet, not to delete or otherwise remove or disguise any data including but not limited to, calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer/device, without the approval in advance of a CCO or Police Officer.

Disclosure/Exchange of Information

Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information.
Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history.

Restrictions on contact with Victims

Have no contact, directly or indirectly, with the victims of your sexual offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-Offender Mediation Unit of the Department of Justice.
Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times.
Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997.

Criminal conduct

Not commit any criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments.
Not commit an offence under s 202, s 203, s 204 and s 557 Criminal Code 1913 (WA), s l7(1) Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021.
Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996.

Curfew

Be subject to a curfew, pursuant to section 32 of the High Risk Serious Offenders Act 2020, such that you are to remain at and not leave your approved address as directed by a CCO from time to time.
When subject to a curfew under this order, present yourself for inspection at the front door or front door of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew.
When subject to a curfew under this order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew.

Medications/Mental Health

Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of reoffending and compliance with treatment to the Department of Justice.

Prevention of high-risk situations

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

Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer, including accompanying such persons to an appropriate location for such testing to take place.
To provide a valid sample for the testing described in condition 36.
Not go to, enter or remain at any licensed premises with the exception of restaurants or cafes unless permitted or required to do so for the following reasons:
(a)For the purpose of averting or minimizing a serious risk of death or injury to yourself or another person;
(b)For a purpose, and for a duration, approved in advance by a CCO;
(c)On the order of a CCO or Police Officer.
Not remain in the presence of any presence of any person who you know, or ought to know, to be affected by alcohol or prohibited drugs, unless the identity of such person is approved in advance by a CCO.
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.
Not to remain in any place where prohibited drugs are being consumed, or remove the persons consuming prohibited drugs from your residence, unless the identity of such person is approved in advance by a CCO.
Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO.
Report at your next contact with your CCO the formation of any social association (of more than 1 contact by any means), domestic, romantic, sexual or otherwise intimate relationship by you with a person.
As directed by a CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence a social association (of more than 1 contact by any means), domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.

_______________________________
THE HON JUSTICE FORRESTER

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice Forrester
6 FEBRUARY 2023