The State of Western Australia v Coyne - [2022] WASC 434

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- COYNE [2022] WASC 434
CORAM:   STRK J
HEARD:   9 DECEMBER 2022
DELIVERED          :   9 DECEMBER 2022
PUBLISHED           :   13 DECEMBER 2022
FILE NO/S:   SO 13 of 2022
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
PAUL JERRY COYNE
Respondent

Catchwords:

Criminal law - High Risk Serious Offenders Act 2020 (WA) - Preliminary hearing - Whether reasonable grounds for belief that restriction order might be made - Whether interim detention order is desirable - Turns on own facts

Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

Orders pursuant to s 46(2) made
Interim detention order made

Category: B

Representation:

Counsel:

Applicant	:	D McDonnell
Respondent	:	A Fedele

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Legal Aid WA

Cases referred to in decision:

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Director of Public Prosecutions (WA) v Allen [2006] WASC 160
Garlett v The State of Western Australia [2022] HCA 30; (2022) 404 ALR 182
The State of Western Australia v Hansen [2022] WASC 391
The State of Western Australia v Hart [2021] WASC 205
The State of Western Australia v Narrier [2021] WASC 250
The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v Ryan [2020] WASC 352
The State of Western Australia v Winder [2021] WASC 65

Table of Contents

Introduction

The law

The evidence

Background and offending history

Reports and assessments

Rehabilitation attempts and behaviour in prison

Proposed accommodation

Post-sentence supervision order

Disposition

Are there reasonable grounds for believing that the court might find that the respondent is a high risk serious offender?

Should an interim detention order or interim supervision order be imposed?

STRK J:

(This judgment was delivered extemporaneously and has been edited from the transcript.)

Introduction

On 2 September 2022, the State of Western Australia applied for a restriction order in respect of Paul Jerry Coyne under the High Risk Serious Offenders Act 2020 (WA) (HRSO Act).
The preliminary hearing of the application came before me today.
The main purpose of the preliminary hearing is for a decision to be made as to whether there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender within the meaning of the HRSO Act. As to the respondent, the State submitted that there were sufficient facts and circumstances for the court to be satisfied of the same.
In so submitting, the State acknowledged that the Prisoner Review Board is due on 21 December 2022 to consider with respect to the respondent a post-sentence supervision order pursuant to pt 5A of the Sentencing (Administration) Act 2003 (WA); and that no pre-sentence supervision order report had been made for consideration by the Prisoners Review Board.[1] It was the State's position that there was no need to adjourn this application until after the Prisoner Review Board had considered and determined whether to impose a post-sentence supervision order, as regardless of the outcome before the Prisoner Review Board, the most stringent post-sentence supervision order that might be imposed could not be as intensive as an interim supervision order under the HRSO Act, and could not ensure adequate protection of the community.[2]
[1] State's submissions pars 60 - 61; ts 3 (9 December 2022).
[2] ts 3 (9 December 2022).
The State pressed for an interim detention order to be made, alternatively that the respondent be released on an interim supervision order pending determination of the proceeding.
At the hearing of the application, counsel for the respondent did not make submissions in opposition to the court finding that there exist reasonable grounds for believing that the court might find that the respondent is a high risk serious offender within the meaning of the HRSO Act. On behalf of the respondent it was submitted that a post-sentence supervision order (that may be made with respect to the respondent), alternatively the imposition of an interim supervision order would provide the community with sufficient protection pending the restriction order hearing. In light of the State's position as summarised at [4] above, the respondent did not seek that the preliminary hearing be adjourned to a date after 21 December 2022.[3]
[3] ts 7 (9 December 2022).
In all of the circumstances, I am satisfied that the requirements of s 46 are met. I am also satisfied that it is desirable for the protection of the community that an interim detention order be imposed pending the final determination of the restriction order application.
My reasons for so concluding are as follows.

The law

Pursuant to s 46 of the HRSO Act, the main purpose of the preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender.
A 'high risk serious offender' is a person in relation to whom the court is satisfied by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender, in order to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.[4]
[4] HRSO Act s 7(1).
A 'serious offence' within the meaning of the HRSO Act, relevant to the respondent, includes an act causing bodily harm or danger done with intent to harm (Criminal Code s 304(2)(b)), aggravated sexual penetration without consent (Criminal Code s 326), deprivation of liberty (Criminal Code s 333), and aggravated robbery (Criminal Code s 392(d)).[5]
[5] HRSO Act s 5, read with sch 1 div 1 subdiv 3.
The nature of the test to be applied under s 46(1) of the HRSO Act is well-established.[6] I do not have to be satisfied that a restriction order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made. To say that something might occur is to say that it is possible, and belief is an inclination of mind towards assenting to, rather than rejecting, a proposition. For there to be reasonable grounds for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.
[6] See, for example, The State of Western Australia v Hansen [2022] WASC 391 [10]; The State of Western Australia v PAS [2020] WASC 405 [20] - [21]; The State of Western Australia v Winder [2021] WASC 65 [16]. The High Court recently upheld the constitutional validity of the HRSO Act insofar as it applies to the offences of robbery and assault with intent to rob in Garlett v The State of Western Australia [2022] HCA 30; (2022) 404 ALR 182.

The evidence

In support of its application, the State relied upon the affidavit of Daniel Sean McDonnell deposed to on 2 September 2022. Mr McDonnell's affidavit contained details of the respondent's criminal history dating back to 1998, and several reports in relation to him. These reports include individual management plans, a record of decisions made concerning the respondent by the Parole Board and later the Prisoners Review Board, a parole review report, a parole assessment report, a treatment assessment report, multiple pre-sentence reports, a psychological report, and reports detailing the respondent's involvement in programs while in prison.
In addition to Mr McDonnell's affidavit, I received an affidavit from a senior community corrections officer, Stacey Madden, deposed to on 19 October 2022, as well as an affidavit Martyn James Clancy-Lowe sworn on 1 December 2022. Both affidavits addressed the respondent's proposed accommodation upon release, which I describe below.
I also received various documents prepared by the Department of Justice, including:
(a)a charge history report prepared by Corrective Services in respect of the respondent's prison charges between 12 January 2020 and 5 December 2022;
(b)three Community Business Information System case notes for events occurring on 6 January 2020 at 2.17 pm, 6 January 2020 at 4.08 pm and 8 January 2020 at 11.53 am; and
(c)an email sent on 8 December 2022 from a law clerk at the State Solicitor's Office containing further information received from Mr Clancy-Lowe in response to questions raised by counsel on behalf of the respondent.
At the preliminary hearing, a number of treatment program participation forms and associated records were referenced and copies provided to the court.

Background and offending history

The respondent is 38 years of age and has a significant history of offending dating back to his childhood. He has convictions for sexual offences (aggravated sexual penetration without consent) as well as numerous violent offences (including assault, aggravated robbery, assault occasioning bodily harm (both aggravated and not), deprivation of liberty, unlawful assault causing bodily harm, unlawful act with intent to harm, threats to kill, and assault of a public officer). He has also been convicted of offences relating to supervision (namely, escape of custody, as well as breaches of community based orders, bail undertakings and suspended sentences); offences relating to the possession of weapons and drugs; property-related offences (including burglary, stealing, unlawful damage, possession of stolen or unlawfully obtained property, trespass and being on a premises without a lawful excuse); offences of a public nature (namely, disorderly behaviour, obstructing a railway officer, trespass on government railways, failure to comply with a request to give personal details, giving false personal details to police, and resisting arrest); and driving-related offences.
The respondent's criminal history includes convictions for five serious offences within the meaning of the HRSO Act over an 11 year period.
In summary, the circumstances of the first were that the respondent and his partner became involved in an argument during which the respondent punched his partner's head numerous times with his fist, kicked her face and chin, and struck her with the blunt end of an axe.[7] At the time of the offending a child was present. The respondent pleaded guilty to aggravated assault occasioning bodily harm and committing an unlawful act with intent to harm (the latter of which is not a serious offence under the HRSO Act). He was sentenced to 18 months imprisonment for each offence.[8]
[7] Affidavit of DS McDonnell, annexure L, annexure M.
[8] Affidavit of DS McDonnell, annexure O.
Three convictions for serious offences again also involved assaults committed against a female partner. Over several hours, the respondent threatened, intimidated, and physically and sexually assaulted the victim. Among other things, he jumped on the head of the victim, punched her, beat her with a metal wrench, and whipped her with an electrical cord. The respondent forced the victim to perform oral sex on him and engage in sexual intercourse, which the victim complied without of fear of further violence. The respondent pleaded guilty to two counts of aggravated sexual penetration without consent, one count of deprivation of liberty and four counts of assault occasioning bodily harm (the latter of which is not a serious offence under the HRSO Act). He was sentenced to a total of seven years imprisonment.[9]
[9] Affidavit of DS McDonnell, annexure K.
The circumstances of the most recent serious offence for which the respondent was convicted were as follows.[10] The offence occurred on Sunday, 12 January 2020. The victim was 62 years of age and the proprietor of a store in Lower King which operated as a petrol station, post office, general merchandise and liquor store. The liquor store is unable to trade until 10 am on Sundays. At approximately 9.15 am, the respondent entered the liquor area and took two bottles of Jack Daniels Bourbon and a ten-pack of Jack Daniels and Cola. The victim stated to the respondent that he could not leave with the alcohol as no sales were permitted at that time, after which the respondent kicked the victim in his groin and pushed him backwards into the entrance door. The victim followed the respondent as he exited the store. The respondent then turned and struck the victim in the face with the ten-pack of cans, causing the victim to stumble backwards and suffer a broken nose, which has caused him ongoing pain and discomfort. The respondent pleaded guilty to aggravated robbery (Criminal Code s 392(d)) and was sentenced 3 years imprisonment.[11] He will have completed that sentence on 11 January 2023.
[10] Affidavit of DS McDonnell, annexure F.
[11] Affidavit of DS McDonnell, annexure G.
The respondent's offending in January 2020 breached a post-sentence supervision order which was imposed by the Prisoners Review Board upon the respondent's release in November 2019. That post-sentence supervision order was imposed as a result of, among other things, the respondent's extensive criminal history, his poor prison conduct, the risk to the safety of the victim of his offending, the Board's opinion that he did not appear to have protective strategies in place to reduce the risk to the safety of the community or to support his positive rehabilitation, and his unmet treatment needs.[12] Shortly prior to his arrest, the respondent's aunt (Maureen Farmer, with whom the respondent was then living) advised that she no longer wished for him to reside with her due to his illicit substance use and aggressive behaviour,[13] and that she intended to proceed with obtaining a Violence Restraining Order against the respondent.[14] As noted by counsel for the respondent, the case note for 8 January 2020 recorded that Ms Farmer was taking the respondent to PIVOT to discuss accommodation options, the same date as the application for a Violence Restraining Order against the respondent was intended to be heard.[15] The Violence Restraining Order which Ms Farmer took out against the respondent expired in January 2021.[16]

Reports and assessments

[12] Affidavit of DS McDonnell, annexure AK.

[13] Community Business Information System case note for event occurring on 6 January 2020 at 2.17 pm.

[14] Community Business Information System case note for event occurring on 6 January 2020 at 4.08 pm.

[15] ts 14 (9 December 2022); Community Business Information System case note for event occurring on 8 January 2020 at 11.53 pm.

[16] Affidavit of MJ Clancy-Lowe par 8.

The most recent psychological report was that written by Wendy Wager on 16 March 2013, which was prepared for sentencing the respondent in relation to the offences for aggravated sexual penetration without consent, deprivation of liberty and aggravated assault occasioning bodily harm.[17] It is recorded that the respondent's manner during interview was dismissive and he expressed irritation with regard to the need for the report, but he agreed to comply with the process. Ms Wager reported that the respondent provided a somewhat confusing account of his family history and childhood, which was characterised by a lack of relationship with his father and violence towards his mother perpetrated by his stepfather. The respondent reported to Ms Wager that he did not have any positive relationship with family members.
[17] Affidavit of DS McDonnell, annexure AR.
In her report, Ms Wager noted that the respondent advised her that he had used amphetamine, cannabis, alcohol and heroin, the latter of which he only used once, and that he commenced drinking alcohol at around 12 years old. Ms Wager opined that the respondent minimised his substance use and dismissed it as being unproblematic for him.
In addition to noting that the respondent was assessed as presenting a high risk of violence (both within and outside of intimate relationships), Ms Wager gave her opinion as to the respondent's offending behaviour and risk as follows:
The two sexual penetration convictions occurred within the context of an ongoing physical assault and therefore appear to be related to an extension of Mr Coyne's domestic violence behaviour rather than a deviant sexual arousal from violence. That is because he has no history of sexual offending and the sexual acts as described in the [statement of material facts] appeared more related to his expressed jealousy and desire to control and possess rather than his becoming sexually aroused due to the violence. The latter cannot be discounted however if violence were sexually stimulating for him then previous sexual offences would be expected given he has engaged in violent offending over some years. That Mr Coyne has a very limited tolerance for frustration before resorting to aggression is clear in his offending history as well as his conduct in the current (and previous) psychological interview which tend to be lengthy and explore (or at least attempt to explore) more deeply than other types of interviews.
A treatment assessment report was prepared by D Thatcher on 7 April 2021 which recorded that:[18]
(a)the Level of Service / Risk, Need, Responsivity assessment tool indicated that the respondent had a 'very high risk of generalist offending' and that his offending behaviour had been escalating in seriousness;
(b)the Violence Risk Scale tool indicated that the respondent had a 'high risk of violent reoffending'; and
(c)the respondent's dynamic risk factors include:
the use of poor emotional management strategies in the context of perceived threat, provocation, and frustration; poor impulse control as evidenced by his lifestyle that commenced in early childhood and included fighting, early substance misuse, antisocial behaviour, family domestic violence and criminal behaviour; violent lifestyle in view of his exposure to violence from a young age which provided antisocial modelling and affected his cognitions around relationships and conflict resolution; interpersonal aggression as evidenced by his bullying and intimidatory behaviour; and violence during incarceration in view of his records indicating multiple incidents while in custody.
[18] Affidavit of DS McDonnell, annexure AN (section 8).
The treatment assessment report also noted that the respondent's literacy issues may impact his ability to comprehend the content of intervention programs.[19] Although the report recommended that the respondent first complete a Prerequisite Literacy to Treatment Program to prepare him for a treatment program, there is no evidence before the court that he participated in the same, and as was noted by counsel for the respondent, nor was there evidence that such a course was readily available.[20]

Rehabilitation attempts and behaviour in prison

[19] Affidavit of DS McDonnell, annexure AN (section 9).

[20] ts 9 (9 December 2022).

I had regard to an individual management plan dated 21 July 2022 which, among other things, addressed the respondent's participation in treatment.[21] It is recorded that the respondent was assessed and recommended for participation in the Pathways Program, which I understand to be an intensive cognitive-behavioural program for offenders with a history of offending behaviour and substance use problems, but he refused to participate in the program. It was also recorded that the respondent was assessed and recommended for participating in an intensive program to address violent offending, which he again refused. The individual management plan noted that during the interview, the respondent expressed an interest in participating in that program but that there were no available places prior to his release date.
[21] Affidavit of DS McDonnell, annexure AJ (section 1.9).
At the preliminary hearing, counsel for the respondent informed the court that she was instructed that the respondent had not refused treatment and did not sign waiver of treatment forms.[22] As to the respondent's contention that he had not refused treatment, I proceed as follows. I note that there are records before the court that record that the respondent has consistently refused to participate in treatment programs. The respondent through counsel says that he did not refuse. In any event, while the respondent now expresses a desire to change and asserts that he is committed to not reoffending (which is a very positive step) the respondent appears to have significant treatment needs which have not been addressed to date.[23]
[22] ts 18 (9 December 2022).
[23] ts 21, 22 (9 December 2022).

As to the respondent's participation in programs to address his outstanding treatment needs during his previous terms of imprisonment, the materials before me suggest as follows.
The respondent signed up for the Pathways Program in 2018 but withdrew from the program before it commenced.[24] Although the respondent participated in the Pathways Program in 2015, he only completed 44 of the 100 hours required.[25] In 2010 and 2013, he was assessed for the Pathways Program and the Violent Offending Treatment Program but refused to participate in them.[26] He engaged well in a six session Alcohol and Substance Use Program in 2005.[27] In 2004 he completed a Controlling Anger and Learning to Manage It Program, as well as a Reasoning and Rehabilitation Program.[28]
[24] Affidavit of DS McDonnell, annexure AO.
[25] Affidavit of DS McDonnell, annexure AP.
[26] Affidavit of DS McDonnell, annexure AN (section 9), annexure AS.
[27] State's submissions par 43.
[28] State's submissions par 42.
With respect to the respondent's behaviour in prison in his current term of imprisonment, the individual management plan dated 21 July 2022 further noted that his behaviour and demeanour has improved marginally in the last few months.[29] The respondent incurred five formal charges during his current term of imprisonment for fighting with another prisoner, assaulting another prisoner, assaulting two nursing officers, and using threating language towards a prison officer.[30]

Proposed accommodation

[29] Affidavit of DS McDonnell, annexure AJ (section 1.5).

[30] Charge History - Prisoner dated 12 January 2020 to 5 December 2022.

The respondent advised the Community Offending Monitoring Unit that he proposed upon release to live with his aunt, Ms Farmer, in a north-eastern suburb of Albany.[31] On 7 October 2022, the aunt expressed her knowledge of the respondent's criminal history and confirmed her willingness for the respondent to reside with her.[32] Ms Farmer advised the Community Offending Monitoring Unit that she lives at the property with her two sons and her nephew (that is, three of the respondent's cousins), and that no alcohol or drugs are used in the home.[33] The testing of electronic monitoring equipment at the proposed address on 13 October 2022 did not present any issues.[34] As noted at [22] above, the Violence Restraining Order taken out by Ms Farmer against the respondent expired in January 2021.
[31] Affidavit of S Madden par 5. Although two different suburbs are referenced in the materials, the street address is the same, and I understand that the two suburbs referred to are neighbouring.
[32] Affidavit of S Madden par 6.
[33] Affidavit of S Madden par 7.
[34] Affidavit of S Madden par 8.
According to the WA Police Information Management System, the current occupants of the proposed address are the respondent's aunt, Ms Farmer, four of his cousins and another individual with whom the relationship to the respondent is unknown.[35] Each of the occupants have significant criminal histories involving violence and drug-related offences, and two of the occupants are reportable offenders under the Community Protection (Offender Reporting) Act 2004 (WA).[36] I understand that as at 8 December 2022, only two of the named occupants in addition to Ms Farmer presently reside at the property (the others being remanded in custody).[37] Concern was raised by local police as to the suitability of the accommodation given the anti-social and criminal behaviour of those who frequently reside there.[38]
[35] Affidavit of MJ Clancy-Lowe par 6.
[36] Affidavit of MJ Clancy-Lowe pars 7 - 17, annexures A - F.
[37] Email communication from State Solicitor's Office to Associate to Justice Strk dated 8 December 2022.
[38] Email communication from State Solicitor's Office to Associate to Justice Strk dated 8 December 2022.
The WA Police Information Management System indicated that there were three family violence incidents at the proposed address in 2022.[39] Police vehicles were dispatched for seven family violence incidents, 10 disturbances and 13 other matters at the address in 2022.[40] To protect the identity of the callers, Mr Clancy-Lowe did not disclose specific details about any of these incidents.[41] Counsel for the respondent submitted that little weight could be given to these calls without details of the same being provided.[42]
[39] Affidavit of MJ Clancy-Lowe par 18.
[40] Affidavit of MJ Clancy-Lowe par 19.
[41] Email communication from State Solicitor's Office to Associate to Justice Strk dated 8 December 2022.
[42] ts 11, 19 - 20 (9 December 2022).
The respondent did not provide any accommodation alternatives.[43]

Post-sentence supervision order

[43] Affidavit of S Madden par 9.

As noted above, the Prisoners Review Board is due to consider a post-sentence supervision order pursuant to the Sentence Administration Act with respect to the respondent on 21 December 2022, and no post-sentence supervision order report was completed at the time of the hearing of this application.[44]
[44] State's submissions pars 60 - 61; ts 3 (9 December 2022).

Disposition

Are there reasonable grounds for believing that the court might find that the respondent is a high risk serious offender?

I am satisfied that there are reasonable grounds to believe that a court might find the respondent to be a high risk serious offender, a conclusion which was not opposed by the respondent at the hearing. My reasons for so concluding are as follows.
First, while not all of the respondent's past offending involved 'serious offences' within the meaning of the HRSO Act, I accept the State's submission that much of his offending supports the potential for a finding that he has a propensity to act impulsively and aggressively and commit serious violent crimes when confronted by situations he cannot control.[45] The five serious offences he committed occurred on three separate occasions over an 11 year period.
[45] State's submissions par 38.
Secondly, while there is a paucity of recent psychological assessments, the respondent was assessed as presenting a high risk of violence (both within and outside of intimate relationships) by Ms Wager in 2013, which assessment is consistent with the conclusions more recently reached in the treatment assessment report prepared in 2021. There is no evidence of the respondent having engaged in psychological counselling sessions or any other treatment during his most recent term of imprisonment.
On the basis of the respondent's offending history and his unmet treatment needs, I am satisfied that there are reasonable grounds to believe that a court might find that he is a high risk serious offender. I will therefore make programming orders for the hearing of the restriction order application.

Should an interim detention order or interim supervision order be imposed?

The question that remains is whether I should make an order pursuant to s 46(2)(c)(i) of the HRSO Act that the respondent be detained in custody until the determination of the restriction order application, an order pursuant to s 58(5) of the HRSO Act that the respondent be placed on an interim supervision order until the determination of the restriction order application, or no order. Given the non-prescriptive wording of both s 46(2)(c)(i) and s 58(5), I proceed on the basis that it is open to the court to make neither an interim detention order nor an interim supervision order pending the determination of the restriction order application.[46]
[46] The State of Western Australia v Narrier [2021] WASC 250 [59].
With respect to an interim supervision order, I note that the respondent will be released from custody on 11 January 2023. I accept that on its proper construction, s 58(2)(b) applies in relation to a person who would not be in custody on a specified future date from which the order is to take effect.[47] It is therefore open to me to now make an interim supervision order provided that I am satisfied that it is desirable to do so to ensure adequate protection of the community.
[47] See, for example, The State of Western Australia v Hart[2021] WASC 205 [32] ‑ [33].
Given the respondent's history of violent offending and apparent unmet treatment needs, I do not consider that a post-sentence supervision order will ensure the adequate protection of the community against the unacceptable risk that the respondent may ultimately be found to pose to the community. The lack of electronic monitoring and ability to impose a curfew weighed heavily in the balance in this regard.
In determining if I should, in the exercise of my discretion, make an interim supervision order rather than a detention order pending the determination of the restriction order application, I note that the factors to be taken into account include the following:[48]
1.The likelihood of the applicant ultimately satisfying the court that the respondent is a high risk serious offender, to the extent that this can be assessed.
2.The extent to which the court can be satisfied not only that the respondent will adhere to the conditions of an interim supervision order but also that adherence to the conditions of an interim supervision order will ensure the adequate protection of the community against the unacceptable risk that the respondent may ultimately be found to pose to the community.
3.The undesirability of depriving the respondent of his liberty prior to the restriction order application being finally determined, bearing in mind that the application may ultimately be refused.
[48] Director of Public Prosecutions (WA) v Allen [2006] WASC 160 [62] - [64]; The State of Western Australia v Ryan [2020] WASC 352 [21]; The State of Western Australia v Narrier [70]
As to the first of those factors, I am satisfied on the basis of what is before me that there are reasonably strong prospects of the applicant satisfying the court that the respondent is a high risk serious offender.
With respect to the second of the factors, I am neither satisfactorily satisfied that that the respondent will adhere to the conditions of an interim supervision order, nor that adherence to the conditions of an interim supervision order will ensure the adequate protection of the community against the unacceptable risk that the respondent may ultimately be found to pose to the community.
In this regard, I have weighed in the balance that the respondent has been convicted of offences relating to supervision (namely, escape of custody, as well as breaches of community based orders, bail undertakings and suspended sentences). In January 2020, the respondent breached a post-sentence supervision order which was imposed by the Prisoners Review Board upon his release in November 2019. The respondent's response to supervision to date appears to be poor.
I am particularly concerned that the conditions of an interim supervision order would not provide adequate protection of the community (which community includes intimate partners) against the unacceptable risk (manifested in interpersonal aggression and violence) that he may ultimately be found to pose. While I did not give the psychological assessments undertaken to date significant weight, among other things, I did consider the dynamic risk factors identified in 2021 by D Thatcher, which appeared entirely consistent with the suite of materials before the court for the purposes of the preliminary hearing.
As was properly conceded by counsel for the respondent, his offending history is significant and of length. It has been unabated. It has only been stopped by periods of imprisonment.[49] I further note that his behaviour in prison during his current term appears to have been poor.
[49] ts 14 (9 December 2022).
I accept that a detention order ought be one of last resort.[50] Unfortunately, given the respondent's history of violent offending, outstanding treatment needs (in the last term of imprisonment he received no treatment to address substance abuse or violent tendencies), and the less than ideal accommodation available, I am not satisfied that an interim supervision order would provide sufficient protection from the community. For that reason, I will make an interim detention order, pending the determination of the application.
[50] See, for example, Garlett v The State of Western Australia [217], [229] - [234] (Edelman J); Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [14].
I will make orders in terms of the State's minute of proposed orders filed on 5 December 2022 programming this matter to a restriction order hearing, and an interim detention order as proposed by the State.
I understand that the respondent maintains that he is motivated and committed to not reoffend.[51] At the conclusion of the hearing, I addressed the respondent and suggested that to the extent that he is able to do so, it would be prudent for him to engage with Uniting WA in relation to accommodation. I understand that steps may be taken to assess the respondent for potential accommodation assistance, and such assessment ought not await the outcome of the State's application for a restriction order.
[51] ts 8 (9 December 2022).
Secondly, given that the respondent has expressed willingness to engage in treatment and rehabilitation programs, it is important that he be given the opportunity to participate in the same while subject to an interim detention order. To the extent that it is necessary for the respondent to be assessed as to his suitability, that assessment ought be attended to with priority. The respondent ought now be referred to the forensic psychological intervention team for assessment. It will be most unfortunate if the restriction order hearing were to proceed in May 2023 with the respondent having expressed willingness to engage in treatment but not having received treatment by reason of there being a lack of treatment options available to him.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AI
Associate to the Honourable Justice Strk
13 DECEMBER 2022