JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- DE‑ABREU [No 2] [2024] WASC 303
CORAM: WHITBY J
HEARD: 17 - 18 JULY & 8 AUGUST 2024
DELIVERED : 21 AUGUST 2024
FILE NO/S: SO 1 of 2023
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
JADE DE-ABREU
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 (WA) - Restriction order application - Whether restriction order should be made - Whether continuing detention order or supervision order appropriate
Legislation:
Community Protection (Offender Reporting) Act 2004 (WA)
Criminal Code (WA)
Dangerous Sexual Offenders Act 2006 (WA)
High Risk Serious Offenders Act 2020 (WA)
Result:
Restriction order made
Continuing detention order made
Category: B
Representation:
Counsel:
| Applicant | : | D McDonnell |
| Respondent | : | In person |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | In person |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Hart [2019] WASC 4
Garlett v The State of Western Australia [2022] HCA 30
State of Western Australia v De‑Abreu [2009] WADC 17
The State of Western Australia v De-Abreu [2023] WASC 84
The State of Western Australia v UJG [No 2] [2023] WASC 77
Contents
Procedural history of the application
Materials
Statutory framework and legal principles applicable to the application
Issues to be determined
Offending history of the respondent, propensity to commit serious offences in the future and pattern of offending - s 7(3) (c), (d) and (g)
Relevant personal history - s 7(g)
Reports and assessments - s 7(3)(a), (b), (c), (d), (e), (f), (h) and (j)
Evidence of Dr Peter Wynn Owen (Forensic Psychiatrist)
Evidence of Dr Dylan Galloghly (Senior Clinical and Forensic Psychologist)
Any other medical, psychiatric, psychological, or other assessment relating to the respondent - s 7(3)(b)
Evidence of Emma Cashmore (Acting HRSO Planning Manager)
Evidence of Julie Dabala (Senior CCO)
Rehabilitation of the respondent - s 7(3)(e) and (f)
The risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence - s 7(3)(h)
The need to protect members of the community from that risk - s 7(3)(i)
Any other relevant matter - s 7(3)(j)
Prisoners Review Board denial of parole
Prison behaviour
Post‑Sentence Supervision Order
Respondent's evidence at trial
Assessment and conclusion
Is the respondent a HRSO?
Continuing detention order or supervision order?
Has the respondent satisfied the court on the balance of probabilities that he will substantially comply with the standard conditions set out in the HRSO Act?
Recommendations for ongoing treatment and management
WHITBY J:
By an application made on 31 January 2023, the State of Western Australia applies for a restriction order to be made in respect of the respondent, Jade De‑Abreu, pursuant to s 46 and s 48 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act). The respondent was, at the time that the State made the application, serving a term of imprisonment of 9 years 6 months imposed in the District Court. That term of imprisonment commenced on 26 August 2013 and expired on 25 February 2023.[1]
[1] Exhibit 1.1. The original sentence of 10 years' imprisonment imposed on 13 August 2015 by Eaton DCJ was reduced to 9 years and 6 months on appeal on 16 September 2020.
On 17 February 2023, Vandongen J (as his Honour then was), made an interim detention order pursuant to s 46(2)(c)(i) of the HRSO Act pending final determination of the application.[2]
[2] The State of Western Australia v De-Abreu [2023] WASC 84.
The respondent is now 56 years old and was self‑represented at the final hearing of the application. The respondent contended that he was not a high risk serious offender (HRSO). However, I find that the expert evidence adduced at the final hearing supports a conclusion that the respondent is a HRSO. I find that the respondent has not satisfied the court, on the balance of probabilities, that he will substantially comply with the standard conditions set out in the HRSO Act. I am also satisfied that, in the circumstances of this case, the risk that the respondent may commit a serious offence of a sexual and/or violent nature is not currently able to be managed within the community. I, therefore, impose a continuing detention order. The reasons for these findings and my recommendations for the respondent's ongoing treatment and management follow.
Procedural history of the application
On 17 February 2023, at the preliminary hearing of the application, Vandongen J made an interim detention order and listed the application for final hearing on 24 July 2023. The procedural history of the application prior to 17 February 2023 is set out in his Honour's reasons for decision on the preliminary hearing.[3]
[3] The State of Western Australia v De-Abreu [3] ‑ [10].
On 24 July 2023, at the request of counsel for the respondent at that time, I made orders adjourning the application to 20 September 2023 for a directions hearing to allow the respondent to:
(1)undergo a functional MRI (FMRI) to determine whether the respondent suffered frontal lobe brain damage as a result of a significant fall and injury in 2013;
(2)obtain medical records relating to his injury in 2013; and
(3)provide any FMRI results and medical records to Dr Wynn Owen, psychiatrist, to consider what effect, if any, any brain damage suffered by the respondent has on the respondent's ability to comply with a supervision order and his risk of committing future offences.
On 7 August 2023, the respondent had a standard MRI, not a FMRI. The MRI found that the respondent was not suffering from any frontal lobe atrophy.
On 20 September 2023, counsel for the respondent advised the court that the respondent did not wish to participate in an FMRI or any other similar diagnostic procedure.[4] The respondent's counsel requested further time to obtain instructions from the respondent. As a result, I adjourned the application to 10 October 2023 for a directions hearing.
[4] ts 166, 20 September 2023.
On 10 October 2023, upon the application of counsel for the respondent, I granted leave for counsel to cease acting for the respondent. The application for a restriction order was adjourned to 29 November 2023 for a directions hearing.
On 27 November 2023, the State advised the court that Legal Aid was still reviewing whether another counsel would be provided to the respondent. As a result, I adjourned the restriction order application to 20 December 2023 for a directions hearing.
On 19 December 2023, the State informed the court that the Legal Aid Review Board had not decided whether the respondent would receive a grant of legal aid. I adjourned the restriction order application to 9 February 2024 for a directions hearing.
On 7 February 2024, the State informed the court that Legal Aid had refused the respondent's request for a further grant of legal aid.
On 9 February 2024, at the directions hearing, I made the following orders:
1.The matter be adjourned to a further directions hearing on Friday, 8 March 2024 at 9:15am.
2.The restriction order application pursuant to s 48 of the High Risk Serious Offenders Act 2020 (WA) is to be heard on 17‑19 July 2024.
3.Any further reports authored by Dr Peter Wynn Owen or Dr Dylan Galloghly be provided to the Applicant at least 28 days prior to the date of the restriction order hearing.
4.Any further report authored by the Department of Justice, including any Proposed Management Plan or Community Supervision Assessment Report, be provided to the Applicant at least 21 days prior to the date of the restriction order hearing.
5.There be liberty to the parties to apply generally.
On 5 March 2024, the court received correspondence from Fiona Stanley Hospital (FSH) advising that the respondent had been admitted to FSH and awaiting open heart surgery. The application was administratively adjourned to 28 March 2024.
On 28 March 2024, I determined that the application was ready to proceed on 17 July 2024.
The application was heard over three days - 17 and 18 July and 8 August 2024. The application was adjourned from 18 July to 8 August 2024 to permit the respondent to summons prison officers to give evidence as to the respondent's conduct in prison.
The delay between the preliminary and final hearing has been significant and generally such delays are undesirable. However, in the circumstances of this case, the delay was justifiable and necessary to ensure that the respondent was given every opportunity to obtain representation and to have all relevant material before the court.
Materials
At the hearing, the State tendered a book of materials comprising of seven volumes - volumes 1 ‑ 4 dated 28 April 2023, volume 5 dated 13 July 2023, volume 6 dated 18 July 2023 and volume 7 dated 11 July 2024. They are exhibits 1.1 - 1.7.
The first five volumes of materials consisted of background material. The material included the respondent's criminal record, chronology of offending, transcript and records relating to the respondent's previous offences and criminal hearings and prison records.
The sixth and seventh volumes included material specifically prepared for this application. This material included:
(1)proposed treatment options report of Emma Cashmore dated 12 July 2023;
(2)psychiatric report of Dr Peter Wynn Owen dated 6 July 2023;
(3)psychological report of Dr Dylan Galloghly dated 19 June 2023;
(4)community supervision assessment of Julie Dabala dated 18 July 2023; and
(5)updated community supervision assessment of Julie Dabala dated 10 July 2024.
The State also relies on the affidavit of Brent Douglas Meertens affirmed 31 January 2023 (Meertens Affidavit) and written submissions filed 19 July 2023.
The State called Dr Wynn Owen, Dr Galloghly, Ms Cashmore and Ms Dabala to give oral evidence at the hearing of the application.
The respondent elected to give evidence and to call evidence. The respondent tendered documents which comprise exhibits 2 to 6. The State did not object to the tender of these documents, subject to submitting that most were not relevant and should be given no weight.
The respondent also called the following prison officers to give oral evidence at the hearing of the application:
(1)Senior Officer Rebekah Deas;
(2)Officer Basil Faulkner;
(3)Senior Officer Tahnee Szeremenda;
(4)Assistant Superintendent John Whitehorn;
(5)Senior Officer Gavin Grace;
(6)Senior Officer Leesa Hill;
(7)Senior Officer Karen Tomkins; and
(8)Officer Bradley Turnbull.
Statutory framework and legal principles applicable to the application
The objects of the HRSO Act are to provide for:
(1)the detention in custody or the supervision of a HRSO to ensure adequate protection of the community and of victims of serious offences; and
(2)continuing control, care or treatment of a HRSO.[5]
[5] HRSO Act s 8.
The State may apply to the court for a restriction order in relation to a serious offender under a custodial sentence.[6] If the offender is in custody, the State cannot make an application unless there is a possibility that the offender might be released within one year after the date of the application.[7]
[6] HRSO Act s 35.
[7] HRSO Act s 35(3).
A HRSO is defined in s 7(1) of the HRSO Act as:
An offender is a high risk serious offender if the court dealing with an application under this Act finds that it is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.
A 'serious offence' is defined by s 5 of the HRSO Act which relevantly provides:
5.Term used: serious offence
(1)An offence is a serious offence if -
(a)it is specified in Schedule 1 Division 1; or
(b)it is specified in Schedule 1 Division 2, and is committed in the circumstances indicated in relation to that offence in that Division.
(2)An offence is a serious offence if -
(a)it was an offence under a written law that has been repealed; and
(b)the offender's acts or omissions that constituted the offence under the repealed provision would constitute a serious offence under subsection (1).
(3)An offence is a serious offence if it is an offence of conspiracy, attempt or incitement to commit an offence that is a serious offence under subsection (1) or (2).
Relevant to the respondent's offending history, serious offences include the following offences:
(1)pursue another with an attempt to intimidate contrary to s 338E(2) of the Criminal Code (WA) (Code);
(2)sexual penetration of a child over 13 and under 16 years contrary to s 31(2) of the Code;
(3)aggravated sexual penetration contrary to s 326 of the Code;
(4)deprivation of liberty contrary to s 333 of the Code;
(5)aggravated indecent assault contrary to s 324 of the Code; and
(6)aggravated sexual coercion contrary to s 328 of the Code.
The powers conferred by the HRSO Act are not to be exercised for the purpose of imposing additional punishment on the offender, but rather for the ultimate purpose of protecting the community.[8]
[8] Garlett v The State of Western Australia [2022] HCA 30 [55] ‑ [56].
The State has the onus of satisfying the court that the respondent is a HRSO in accordance with s 7(1).[9] In considering whether it is satisfied that a person is a HRSO, the court must have regard to the matters set out in s 7(3) of the HRSO Act.
[9] HRSO Act s 7(2).
Section 7(3) of the HRSO Act specifies the matters that the court must have regard to in deciding if an offender is a HRSO for the purposes of s 7(1). The matters are as follows:
(1)any report prepared under s 74 of the HRSO Act 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));
(2)any other medical, psychiatric, psychological, or other assessment relating to the offender (s 7(3)(b));
(3)information indicating whether or not the offender has a propensity to commit serious offences in the future (s 7(3)(c));
(4)whether or not there is any pattern of offending behaviour by the offender (s 7(3)(d));
(5)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 program (s 7(3)(e));
(6)whether or not the offender's participation in any rehabilitation program has had a positive effect on the offender (s 7(3)(f));
(7)the offender's antecedents and criminal record (s 7(3)(g));
(8)the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence (s 7(3)(h));
(9)the need to protect members of the community from that risk (s 7(3)(i)); and
(10)any other relevant matter (s 7(3)(j)).
Further, the court must disregard the possibility that the respondent might be temporarily prevented from committing a serious offence by imprisonment, remand in custody, or the imposition of bail conditions.[10]
[10] HRSO Act s 7(4).
The words 'high degree of probability' import more than a finding on the balance of probabilities but less than a finding of beyond reasonable doubt but are otherwise not capable of further definition.[11] The court is required to identify what it is that constitutes the risk and what makes it unacceptable, and then consider whether or not those factors have been proved to the requisite standard by acceptable and cogent evidence.[12]
[11] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [28] (Steytler P & Buss JA).
[12] Director of Public Prosecutions (WA) v GTR [34].
A restriction order means a continuing detention order or a supervision order.[13] A continuing detention order is an order that the offender be detained in custody for an indefinite term for control, care or treatment.[14] A supervision order is an order that the offender, when not in custody, is to be subject to stated conditions that the court considers to be appropriate in accordance with s 30 of the HRSO Act.[15] The standard conditions of a supervision order include the requirement that the offender not commit a serious offence during the period of the order.[16]
[13] HRSO Act s 3.
[14] HRSO Act s 3 s 26(1).
[15] HRSO Act s 3 s 27(1).
[16] HRSO Act s 30(2)(f).
Issues to be determined
As a threshold issue, the application must meet the requirements of the HRSO Act. The application does meet those requirements in the respondent's case because:
(1)on 31 January 2023 (that is the date the application was made), the respondent was serving a custodial sentence for offences including the serious offences of three counts of aggravated sexual penetration, one count of deprivation of liberty, one count of aggravated indecent assault and two counts of aggravated sexual coercion; and
(2)the respondent's custodial sentence was due to expire on 25 February 2023, that is within 12 months of the date of the application.
Those threshold requirements having been satisfied, the issues I must decide on the application are:
(1)is the respondent a HRSO, within the meaning of s 7 of the HRSO Act?; and, if so
(2)should the court make an order that the respondent be detained in custody for an indefinite term for control, care or treatment (a continuing detention order or CDO)[17] or that he be released into the community subject to conditions that the court considers appropriate (supervision order or SO)?[18]
[17] HRSO Act s 26.
[18] HRSO Act s 27.
In order to determine these issues, I will consider the matters specified in s 7(3) of the HRSO Act to which I must have regard.
Offending history of the respondent, propensity to commit serious offences in the future and pattern of offending - s 7(3) (c), (d) and (g)
I must consider the respondent's antecedents and criminal record including all prior offences to the extent that such offences are relevant to the question of whether the person is a HRSO within the meaning of the HRSO Act (whether they are serious offences or not). I must also have regard to the context in which the past offences were committed.[19]
[19] The State of Western Australia v UJG [No 2] [2023] WASC 77 [35].
The State submits that the respondent's prior offences that are not considered 'serious offences' are nonetheless 'relevant material' for the purposes of s 84(5), as they are consistent with conduct, as identified by the s 74 reports, which is offending conduct that the respondent may engage in the future.[20]
[20] Applicant's written submissions [9].
The respondent's criminal record and antecedents are not only relevant in and of themselves but are also relevant to whether the respondent has a propensity to commit serious offences in the future, and whether there is any pattern of offending behaviour.[21]
[21] HRSO Act s 7(3)(c)‑(d); The State of Western Australia v UJG[No 2].
I set out the respondent's relevant offending history, including 'non‑serious offences', in chronological order.
On 5 February 1996, the respondent was convicted of one count of unlawful assault. The respondent was verbally abusing a woman and the victim went to her aid. The respondent then verbally abused the victim and as the respondent was walking away, he punched the victim in the back between the shoulder blades. The respondent received a fine of $400.
On 25 August 1999, the respondent was convicted of breaching a violence restraining order, assault and damage and was sentenced to a 12‑month conditional release order. The facts of those offences were that the respondent approached his former de facto partner who had a violence restraining order against him, verbally abused her, kicked her in the lower left leg, and then kicked the left rear door of her car causing a large dent.
Between 25 August 1999 and 31 March 2005 the respondent was convicted of four further offences involving physical violence and damage to property. In each case the respondent received a fine.
On 27 March 2006, the respondent was convicted of assault occasioning bodily harm. The offence occurred at the respondent's unit when he violently assaulted the female victim following an argument after they had taken drugs together. In proceedings that took place in the District Court in 2015 in relation to offences later committed in 2013, Eaton DCJ said that this offence was 'disturbing similar …' to offences that the respondent later committed in 2013. The respondent was sentenced to pay a fine of $250, after taking into account the respondent's time in custody of between 250 to 270 days on remand for that charge.
On 8 May 2007, the respondent was convicted of the serious offence of pursuing another to intimidate. The facts of that offence were that the respondent drove his car into a car park, parked behind the victim's car and followed her into a chemist. The respondent continued to follow the victim when she left the chemist and moved towards her car. The victim was extremely afraid, got into her car, and drove out of the car park with the respondent following behind her. The respondent received a fine.
On 19 February 2009, the respondent pleaded guilty to, and was convicted of, three serious offences of sexual penetration of a child of or over 13 and under 16, contrary to s 321(2) of the Code. At the time of this offending the victim was 14 years old and the respondent was 39 years old. The victim and the respondent met in July 2007. The respondent offered the victim drugs and they arranged to meet later that night. The respondent drove the victim to the respondent's house, where they smoked drugs together for approximately two hours. After they finished smoking, the victim asked the respondent to drive her home, but he told her there was no fuel in his car. The respondent then left the room and returned wearing only a t‑shirt. He shut the door, pushed the victim onto the bed and got on top of her. The victim did not resist him because she wanted him to keep giving her drugs. The respondent removed the victim's pants and underwear and had rough sexual intercourse with her.
About two weeks later, the victim saw the respondent by his car waving a bag of marijuana. The respondent asked the victim to join him for a smoke, the victim accepted and got in the car. After spending some time at the respondent's house, the victim and the respondent were joined by a friend of the respondent who drove them to the friend's house. When they got to the friend's house, the victim lay down on a bed to sleep. The respondent and his friend left the house and returned later with drugs. The respondent came into the room where the victim was laying. The respondent grabbed her arm and she felt a prick in her arm. The respondent stood next to the bed and removed his clothes. He told the victim to get up because he wanted her to perform fellatio on him. The victim agreed because she wanted the respondent to continue giving her drugs.
About a week later, the respondent picked up the victim, two of her cousins, and a friend, and drove them to various places before returning to his home address. At the respondent's house everyone went to his bedroom. After about two hours, the respondent told everyone except the victim to leave his bedroom.
When the victim attempted to leave the room, the respondent grabbed her by the wrist and pushed her onto the bed. The respondent removed his clothes and got on top of the victim and held her down across her chest and used his other hand to remove her shorts and underwear. The victim gave consent so the respondent would continue giving her drugs.
The respondent had rough sexual intercourse with the victim. The victim asked the respondent to stop. When the respondent finished, he got off the victim, walked into the lounge room area where the three others were and began yelling at them. The victim quickly dressed and walked into the lounge room to sit with the others.
The victim's cousins and friend left the house and the victim wanted to go with them. The respondent wanted the victim to stay in the house, and the victim agreed because she was fearful of his angry state.[22]
[22] Exhibit 1.2, 821 ‑ 822.
Following a trial of issues before Schoombee DCJ on 15 January 2009, her Honour found that:[23]
(1)the sexual acts were not accompanied by violence or deprivation of liberty;
(2)the respondent supplied the victim with drugs and the victim had taken them of her own free will;
(3)on each occasion the respondent supplied drugs to the victim either to lure her into a relationship or to make her more compliant to the sexual conduct; and
(4)the respondent knew the victim was under the age of 16 years.
[23] State of Western Australia v De‑Abreu [2009] WADC 17.
The respondent was sentenced to 3 years' imprisonment for these offences and was made eligible for parole.
After being released from prison, the respondent committed traffic offences and dishonesty offences, including stealing, and using false number plates.
In 2012, on four separate occasions, the respondent was convicted of offences of failing to comply with reporting obligations imposed on him pursuant to s 63 of the Community Protection (Offender Reporting) Act 2004 (WA).[24]
[24] I accept the inference drawn by Vandongen J in The State of Western Australia v De‑Abreu at [85] that the respondent was subject to the reporting obligations imposed under that Act because he had been convicted of offences of sexual penetration of a child of or over 13 and under 16 years of age.
In late 2012, the respondent was convicted of an offence of being armed so as to cause fear, following a verbal altercation with a female. The victim, a third party not known to the respondent, asked if the female needed assistance. The respondent became abusive, produced a knife which was part of a multi‑tool and held it towards the victim in a threatening manner. The respondent received a fine for this offence.
On 13 August 2015, following a trial in the District Court, the respondent was sentenced for a number of offences by Eaton DCJ to a total effective sentence of 10 years' imprisonment, with an order made that he be eligible for parole. After a successful appeal, that sentence was adjusted to a total effective sentence of 9 years and 6 months' imprisonment. It is this sentence that the respondent was serving at the time the application was made.
The respondent was charged on indictment with 13 counts. Prior to trial, the respondent pleaded guilty to count 13, being that he unlawfully assaulted the complainant and thereby did her bodily harm. The respondent pleaded not guilty to the remaining 12 counts on the indictment and proceeded to trial. At the conclusion of the trial, the respondent was convicted of count 3 and counts 5 to 12, but was acquitted of counts 1, 2 and 4. The respondent was sentenced by Eaton DCJ to a total effective sentence of 10 years' imprisonment. This was reduced on appeal to 9 years and 6 months.
The charges and sentences imposed on appeal for each charge were as follows:
No Offence Date Description Final Outcome Count 3
PE 124/2015
6 July 2013 Aggravated common assault
(CRC s317 (1))
Imprisonment 6mths (cm) Count 5
PE 51396/2013
On or about 25 August 2013 Aggravated sexual penetration without consent (CRC s 326) Imprisonment
2yrs 6mths (cc)
Count 6
PE 51397/2013
On or about 25 August 2013 Aggravated sexual penetration without consent (CRC s 326) Imprisonment
2yrs 6mths (cc)
Count 7
PE 51398/2013
On or about 25 August 2013 Aggravated sexual penetration without consent (CRC s 326) Imprisonment
7yrs (cm)
Count 8
PE 51399/2013
On or about 25 August 2013 Aggravated sexual penetration without consent (CRC s 326) Imprisonment
5yrs (cc)
Count 9
PE 51395/2013
On or about 25 August 2013 Deprivation of liberty (CRC s 333) Imprisonment
2yrs (cm)
Count 10
PE 51400/2013
On or about 25 August 2013 Aggravated indecent assault
(CRC s 324)
Imprisonment
9mths (cc)
Count 11
PE 51401/2013
On or about 25 August 2013 Aggravated sexual coercion
(CRC s 328)
Imprisonment
12mths (cc)
Count 12
PE 51400/2013
On or about 25 August 2013 Aggravated sexual coercion
(CRC s 328)
Imprisonment
12mths (cc)
Count 13
PE 51400/2013
On or about 25 August 2013 Unlawfully assault and thereby did bodily harm with circumstances of aggravation
(CRC s317 (1))
Imprisonment
11mths (cc)
Count 3 on the indictment was an offence of assault occasioning bodily harm. The respondent bit the victim on her back and upper thigh when they were wrestling on a bed after they had spent time together using drugs.
Counts 5 to 13 on the indictment relate to a different female victim. The circumstances of this offending were as follows.
The respondent and the victim were in an on again, off again relationship. In August 2013, the respondent was 44 years old and the victim was 43 years old.
On Saturday 24 August 2013, the respondent collected the victim from Joondalup train station and took her to a vacant house in Maylands. Once inside the house, the respondent injected himself with a quantity of methylamphetamine and requested sex from the victim. The victim initially obliged and began performing oral sex on the respondent. The respondent became aggressive towards the victim, yelling at her and grabbing hold of her hair. She complied when he told her to stop and move into the next room.
The respondent stood in front of the victim and the victim began to perform oral sex on him. He again became aggressive towards her and grabbed her by the hair and threw her across the floor. While she lay on the floor, he kicked her to the lower part of her body and to the tops of her legs causing her pain.
The respondent continued to be aggressive and assault the victim when she told him she did not want to continue the sexual act. Despite her pleas to stop, the respondent told her to perform oral sex on him again. The victim continued through fear the respondent would assault her. The respondent punched her to the back of the head and took hold of her hair and dragged her to her feet. He told her she was useless and started to punch her in her face and upper body using force with his clenched fists and pushing her around the room until she fell to the floor.
As the victim lay on the floor, the respondent kicked her body and continually yelled, 'Get up mutt, get up mutt!'. Once she got to her feet, he punched her in the chest between her breasts causing her to fall to the ground again.
The respondent again requested that the victim perform oral sex and she complied out of fear that he would continue to assault her. The respondent again began to yell at her and hit her to the upper body and head. He placed his hands around her throat and started to squeeze causing the victim to make attempts to gasp for air. This continued for a period before the respondent let go.
The respondent then told the victim to remove her clothes, and when she took too long, the respondent grabbed her bra and tore it from her body causing pain. He told her to lay on the ground and she complied out of fear she would be assaulted. The respondent positioned himself on top of her wearing only a purple mesh singlet and purple wig and began to rub his penis around her vagina. The respondent forced his penis inside the victim's vagina causing her pain and discomfort. The respondent continued to have sex with the victim for a period before instructing her to position herself on her hands and knees.
The respondent told the victim to hold her buttocks apart and when she did he forced his penis into her anus causing her pain. Despite her pleas for him to stop the respondent continued for a period before stopping. The respondent continued to verbally abuse the victim and when she told him she needed to urinate he denied her requests to use the toilet and told her to urinate in his mouth. When the victim was eventually allowed to use the toilet she told the respondent she needed a cigarette in an attempt to escape the premises. The respondent grabbed hold of her arms and dragged her back towards the main room. The victim spent a period trying to calm the respondent by talking to him, which continued into the early hours of the following morning.
The respondent told the victim to give him money for more drugs. The victim gave him her bank card under the belief she would be able to leave. The respondent took the victim to an unknown address where he purchased amphetamine, on return to the premises he injected himself and continued with his erratic behaviour, including demanding sex.
The respondent produced a large brown dildo and instructed the victim to place it between her legs and pretend she had a penis. The victim complied out of fear the respondent would physically harm her. The respondent bent over and instructed the victim to rub the dildo on his anus. The victim did as instructed and the respondent told her to lick his anus. The victim complied out of fear she would be harmed if she resisted.
The respondent produced a cylindrical torch and told the victim to penetrate his anus with the object. The victim did as instructed out of fear for her personal safety.
A short time later the owner of the premises and his two sons entered the building and confronted the respondent. The respondent was aggressive towards the owner but eventually left the premises taking the victim with him. The victim started running towards a nearby house however the respondent chased her and dragged her into his car by her hair and fled the scene.
As a result of the assault, the victim suffered severe bruising to her arms, legs, and ribs as well as lacerations to her neck and face.[25]
[25] Exhibit 1.3, 996 ‑ 999.
The respondent pleaded guilty to one count of aggravated assault occasioning bodily harm in relation to this offending and was convicted on all other counts after trial.[26]
[26] Meertens Affidavit [13] ‑ [14].
When the respondent was sentenced on 13 August 2015, Eaton DCJ observed that the facts giving rise to these offences, 'demonstrate[d] a propensity on [the respondent's] part to react quickly in an angry and violent way in a very short period of time for what are often quite trivial provocations'.
In summary, the respondent has been convicted of 10 serious offences as defined in the HRSO Act.
The respondent's criminal history indicates that he has a propensity to commit sexual and other violent offences against women whom he knows in the context of mutual drug use. I accept that the respondent's past offending shows a pattern of behaviour - in that the respondent has befriended females, supplied drugs to, and used drugs with, them and then sexually and violently offended against them when given the opportunity to do so.
The respondent has also been convicted of a number of offences which are not considered serious for the purposes of the HRSO Act. Although they are independently minor offences, when considered in the context of his offending as a whole, they demonstrate that the respondent has a well‑established tendency to behave in an aggressive and violent manner in response to minimal provocation.
Relevant personal history - s 7(g)
The respondent is now 55 years old. He is the oldest of seven children born to his parents' relationship. He was born in Venezuela and his family moved to Australia when he was approximately 9 years old. The respondent's medical records indicate he has partial contact with his family.[27] He has two children from two different partners.[28]
[27] Exhibit 1.2, 382.
[28] Exhibit 1.3, 1070 - 1073.
The respondent has refused contact being made with parties such as his family for the purposes of obtaining information for psychological assessments.[29] There is no apparent history of mental illness in the respondent's family.[30]
[29] Exhibit 1.2, 832.
[30] Exhibit 1.3, 1072.
The respondent reported doing relatively well at school and particularly enjoyed subjects such as drama. He left school after completing year 11.[31]
[31] Exhibit 1.2, 836.
The respondent has described himself as being an active child, involved in music and sports. As an adult, he maintained his interests in music and sports, beginning a professional music career and going on to become a driving instructor. He was also working as a painter to finance his career in music, and prior to his 2008 offending, he was working towards closing a recording deal with a company in Melbourne.[32]
[32] Exhibit 1.2, 825.
The respondent reports that he had a good family and school life, but was otherwise reluctant to provide any further information about his social history.[33]
[33] Exhibit 1.2, 830.
The respondent reported that he had some girlfriends at school and that sexual contact in this period had never progressed beyond kissing. The respondent has been in a number of brief relationships and some relationships that lasted three to four years. He reported these relationships ended due to his unwillingness to settle and commit to a permanent relationship. He reported that he retained these former partners as friends and had a number of friendships with women.[34]
[34] Exhibit 1.2, 837.
Although in evidence the respondent denies that he is a drug user, his medical records indicate a history of IV drug use.[35] The respondent's medical records also indicate a history of self‑harm, and diagnoses of anxiety and depression.[36]
[35] Exhibit 1.2, 382.
[36] Exhibit 1.2, 381 - 383.
The respondent was admitted to the mental health ward at Perth Royal Hospital for 13 days in 2001, following release from his first prison term. He had been suicidal at the time and alleged that he injected himself with rat poison and fly spray. The respondent had two further hospital admissions in 2002 and 2005 for management of situational crises.[37]
[37] Exhibit 1.2, 824.
In the past, the respondent has described feelings of depression and suicidal ideation.[38]
Reports and assessments - s 7(3)(a), (b), (c), (d), (e), (f), (h) and (j)
Evidence of Dr Peter Wynn Owen (Forensic Psychiatrist)
[38] Exhibit 1.2, 825.
Dr Wynn Owen is a qualified expert within the meaning of the HRSO Act.[39] Dr Wynn Owen interviewed the respondent on 14 and 15 June 2023 and prepared a report dated 6 July 2023.[40] Dr Wynn Owen has not recently interviewed the respondent because the respondent refused a request by Dr Wynn Owen to meet with him.[41]
[39] HRSO Act s 3; Exhibit 1.6, 2039 [1].
[40] Exhibit 1.6, 2039 ‑ 2065.
[41] ts 165.
Dr Wynn Owen is a medical practitioner registered with the Medical Board of Australia as a generalist and a medical specialist (Psychiatrist). He is a Fellow of the Royal Australian and New Zealand College of Psychiatrists (RANZCP) and an accredited member of the RANZCP Faculty of Forensic Psychiatry. Dr Wynn Owen, as a consultant forensic psychiatrist, has regularly provided reports and expert testimony in courts for more than 18 years.[42]
[42] Exhibit 1.6, 2039 [1].
Dr Wynn Owen reported that the respondent was intensely focussed on explaining his innocence in relation to his offending, alleging that police had colluded with victims to entrap him and had destroyed and/or fabricated evidence against him, that prison authorities had knowingly prevented him from fair representation, and that senior public servants in government departments and a variety of State Ministers had knowingly and/or inadvertently colluded with denying him justice and a fair go.[43]
[43] Exhibit 1.6, 2042 [27].
Dr Wynn Owen reported that the respondent was clear that his intent was to use this application as his opportunity to revisit his convictions and seek to clear his name. The respondent also told Dr Wynn Owen that the HRSO Act 'does not apply to me'.[44]
[44] Exhibit 1.6, 2042 [27].
It was not possible for Dr Wynn Owen to undertake many components of a semi‑structured interview process as the respondent either declined to participate in that process or did not provide the opportunity, for example, to discuss his personal and family history, or the specifics of his past convictions, serious or otherwise. The respondent essentially controlled the narrative throughout over five hours of interview time, maintaining focus on the injustices he had suffered.[45]
[45] Exhibit 1.6, 2042 [27].
As the respondent did not engage in a semi‑structured interview process, Dr Wynn Owen was unable to investigate past or current attitudes towards past offending, violent ideation, sexual thinking or function, attitudes towards treatment intervention or release conditions.[46]
[46] Exhibit 1.6, 2062 [239].
Dr Wynn Owen reported that, at times during the interview, the respondent stood up, approached within a centimetre of Dr Wynn Owen's face, and shouted, in an attempt to demonstrate how others had approached him inappropriately. The respondent frequently shouted to the extent that an officer entered the interview room to check everything was okay. His mood was angry and labile, with rapid and marked shifts of affect from apparently calm, to angry and loud, to intermittent tearfulness.[47]
[47] Exhibit 1.6, 2052 [153].
Dr Wynn Owen reported that the respondent's attitude towards the victims of his serious offending in 2013 was one of anger. He described the victims of the 2013 serious offending in highly pejorative terms, including using words such as 'dog' and 'cunt'. The respondent made reference to the victims taking advantage of the global '#MeToo' movement. He expressed no remorse or victim empathy.[48]
[48] Exhibit 1.6, 2043 [30].
Dr Wynn Owen noted that the respondent has an unusually extensive prison charge and incident history. The respondent's history from 2013 to 2023 records numerous charges and incidents predominantly for abusive language, threatening language and behaviour and disobeying instructions. In Dr Wynn Owen's opinion this history is suggestive of ongoing and very significant issues that the respondent has with emotional regulation and impulse control.[49]
[49] Exhibit 1.6, 2050 [133] ‑ [135].
Dr Wynn Owen diagnosed the respondent with general personality disorder with narcissistic and antisocial traits.[50]
[50] Exhibit 1.6, 2052 [155].
Dr Wynn Owen reported:[51]
[The respondent] meets the DSM‑V criterion for a general personality disorder, an enduring pattern of inner experience and behaviour that deviates markedly from the expectations of the individual culture that is manifest in the following areas (to be manifest in at least 2 of the following 4 areas for a diagnosis to be made):
Cognition: [the respondent] has a unique way of perceiving himself, others and events, in particular in relation to perceived injustices at individual, group/collusive and systemic levels.
Affectivity: [the respondent's] emotional responses are labile, of extreme range, unusually intense, and frequently quite inappropriate.
Interpersonal function: this is poor and has been associated with violence and a lack of empathy.
Impulse control: [the respondent's] offending history and prison behaviour record provides clear demonstration of impulse control problems.
The narcissistic personality traits identified are grandiosity, lack of empathy and haughty arrogant behaviours and attitudes. The antisocial traits are violation of the rights of others, failure to conform to social norms, irritability and aggressiveness, and lack of remorse. As there is no evidence for a diagnosis of Conduct Disorder as a child or young adolescent a diagnosis of Antisocial Personality Disorder cannot be made.
[The respondent] also presents with an unusually high level of arousal, agitation, sensitivity to and expectation of criticism, emotional reactivity and suspiciousness of the motives of others. He sees links between past and current events such that he implies a conspiracy by individuals, services, organisations and government to his particular disadvantage. There is a very high degree of distress apparent, and his emotional state and demeanour colour his interactions with others to his significant disadvantage. It is not clear that this presentation is related to a treatable mental illness or personality or a combination of both, nor whether [the respondent's] dysphoric life experience has been exacerbated by head injury, however it warrants investigation and will inform reoffending risk.
It has not been possible through this assessment to confirm or exclude a number of diagnoses of relevance that are often co‑morbid with personality disorder including Post Traumatic Stress Disorder, Anxiety Disorder, Attention Deficit Hyperactivity Disorder, a mood or psychotic disorder or an organic (traumatic) cerebral cause or contribution to [the respondent]'s presentation. What is apparent is that [the respondent] is presenting in a state of chronic psychological distress and emotional dysregulation and has mental health needs that are currently not being met.
[51] Exhibit 1.6, 2052 [156] ‑ [163].
Dr Wynn Owen undertook an assessment of the respondent's risk of reoffending using the Static‑99R, Violence Risk Appraisal Guide, Revised (VRAG-R), Hare Psychopathy Checklist, Revised (PCL-R), Historical, Clinical and Risk Management 20, Version 3 (HCR-20 V3), and Risk for Sexual Violence Protocol (RSVP) assessment tools.
Static-99R
Static‑99R is an actuarial tool that is intended to position offenders in terms of their relative degree of risk of sexual recidivism.[52]
[52] Exhibit 1.6, 2053 [168].
Under the Static‑99R tool, the respondent's score placed in the 'Above Average Risk' range.[53]
VRAG-R
[53] Exhibit 1.6, 2053 [169].
The VRAG‑R is an actuarial tool designed to assess the likelihood of violent or sexual offending.[54]
[54] Exhibit 1.6, 2054 [173].
The respondent's score on the VRAG‑R was in the medium‑high risk category.[55]
PCL-R
[55] Exhibit 1.6, 2054 [174].
Under the PCL‑R tool, the respondent did not meet the threshold score of 30 required for a finding of psychopathic disorder. He did, however, score high on the antisocial and affective facet.[56]
[56] Exhibit 1.6, 2054 [178] - [179].
Dr Wynn Owen reported the respondent's score reflects strong narcissistic personality traits relating to a lack of remorse and empathy, poor behavioural controls and antisocial attitudes and behaviour.[57]
HCR‑20 V3
[57] Exhibit 1.6, 2054 [179].
The HCR‑20 is a risk assessment, monitoring and management tool which considers the presence of a range of historical/static and dynamic risk factors for future violence.[58]
[58] Exhibit 1.6, 2054 [181].
Dr Wynn Owen reported the following risk factors to be present using the HCR‑20 V3 tool:[59]
[59] Exhibit 1.6, 2054 - 2058 [183] ‑ [206].
(1)history of problems with violence;
(2)history of problems with other antisocial behaviour;
(3)history of problems with relationships;
(4)history of problems with substance use;
(5)history of problems with personality disorder;
(6)history of problems with traumatic experiences;
(7)history of problems with violent attitudes;
(8)history of problems with treatment or supervision response;
(9)recent problems with insight;
(10)recent problems with violent ideation or intent;
(11)recent problems with instability;
(12)recent problems with treatment or supervision response;
(13)future problems with professional services and plans;
(14)future problems with living situation;
(15)future problems with personal support (possibly present);
(16)future problems with treatment or supervision response; and
(17)future problems with stress or coping.
RSVP
The RSVP is a clinical judgment framework that requires consideration of a number of separate factors or domains. Using the RSVP tool, Dr Wynn Owen found the following risk factors to be definitely present, present or possibly present (as indicated):[60]
[60] Exhibit 1.6, 2058 - 2062 [212] ‑ [235].
(1)diversity of sexual violence (definitely present);
(2)escalation of sexual violence (possibly present);
(3)physical coercion in sexual violence (definitely present);
(4)psychological coercion in sexual violence (definitely present);
(5)minimisation or denial of sexual violence (definitely present);
(6)attitudes that support or condone sexual violence (definitely present);
(7)problems with self-awareness (definitely present);
(8)serious problems with stress or coping (definitely present);
(9)problems with substance abuse (present);
(10)violent ideation (definitely present);
(11)problems with intimate relationships (definitely present);
(12)problems with non‑intimate relationships (possibly present);
(13)non‑sexual criminality (definitely present);
(14)problems with planning (present);
(15)problems with treatment (definitely present); and
(16)problems with supervision (definitely present).
Dr Wynn Owen's opinion
Dr Wynn Owen's opinion is that the respondent, if not subject to a restriction order, presents a high risk of committing a serious offence.[61] Dr Wynn Owen considers any future serious offending is most likely to be in the form of a sexual offence.[62]
[61] Exhibit 1.6, 2063 ‑ 2064 [250].
[62] Exhibit 1.6, 2064 [250].
On the basis of his assessment, Dr Wynn Owen is also of the opinion that the respondent has a high likelihood of committing a non‑serious violent offence if not subject to a restriction order.[63]
Recommendations
[63] Exhibit 1.6, 2064 [252].
Dr Wynn Owen recommends that the respondent be assessed by the prison based mental health team, with access to reports prepared for these proceedings, and the 2013 RPH information and findings on neuroimaging when it occurs, to review treatment options for his high level of arousal and emotional reactivity.[64]
[64] Exhibit 1.6, 2064 [253(a)(i)].
Dr Wynn Owen recommends that the respondent undergo a comprehensive psychiatric assessment. Dr Wynn Owen's opinion is that, once the respondent's level of arousal and emotional dysregulation has been addressed, he should be considered by the Department of Justice Forensic Psychology Assessment Team for treatment to address his future risk of violent and/or sexual offending. This should be tailored individual therapy with a psychologist rather than group treatment, unless the respondent's level of arousal changes very significantly in the short term. Targets for treatment include emotional recognition and management, self‑awareness, interpersonal and communication skills, antecedents to substance use and the relationship between substance use and offending.[65]
[65] Exhibit 1.6, 2064 [253(a)(iii)].
In the event the respondent is released to community supervision, Dr Wynn Owen recommends the order should include a supervision condition which reflects high risk scenarios situations - substance abuse, intimate relationships and contact with females.[66] Dr Wynn Owen recommended any supervision order be for a period of five years.[67]
Dr Wynn Owen's oral evidence
[66] Exhibit 1.6, 2065 [253(b)].
[67] Exhibit 1.6, 2064 [253(c)].
Dr Wynn Owen gave evidence that he was unable to discuss with the respondent his upbringing, formation of earlier attachment, early development and education and that an understanding of these matters may have brought a greater understanding of the respondent's attitude towards the criminal justice system and options for intervention.[68]
[68] ts 165 ‑ 167.
Dr Wynn Owen gave evidence that the respondent's insistence that he is innocent of the serious offences of which he has been convicted means that the respondent has not been prepared to engage in any sort of treatment that may address his risk of future violent offending, sexual offending or substance use.[69] Dr Wynn Owen confirmed, in cross‑examination, that the respondent had not, since 2002, been offered any therapeutic intervention to address his treatment needs in prison or in the community.[70]
[69] ts 167.
[70] ts 184.
Dr Wynn Owen gave evidence that, if a supervision order were imposed on the respondent, it would be imposed for things that the respondent feels are inappropriate and unjust, which would, in turn, undermine the respondent's desire to comply. Dr Wynn Owen said that it would be very difficult for the respondent to comply with reasonable directions of a Community Corrections Officer (CCO), particularly if he disagreed with a specific request.[71] Dr Wynn Owen was of the opinion that, given the respondent's suspiciousness and high level of arousal and that he sees himself as a victim, there is an increased risk that, if a CCO gave him a direction on a supervision order, the respondent would be loud, abusive and behave in an intimidatory way. Dr Wynn Owen said that this may extend to some form of physical violence.[72]
[71] ts 170.
[72] ts 170 ‑ 171.
Dr Wynn Owen gave evidence that, given the respondent's prior conviction for stalking, together with comments the respondent made to the author of the post sentence supervision order report dated 13 January 2023 that he would hunt the victim of his offending down to interrogate her in relation to her lies[73] and the anger he feels towards people who he perceives have conspired against him, there is a great concern that the respondent would stalk a person in order to assist the respondent to clear his name.[74]
[73] Exhibit 1.4, 1614.
[74] ts 174.
Dr Wynn Owen gave evidence that, if the respondent does have a frontal lobe syndrome as a result of the head injury he suffered during a fall in 2013, it would not change his opinion in terms of the risk of the respondent reoffending. Dr Wynn Owen said that it would, however, change his approach as to how that risk was addressed.[75]
[75] ts 175.
In cross‑examination, Dr Wynn Owen gave evidence that he would expect someone, without a frontal lobe injury, who was innocent, placed in prison and had exhausted avenues to appeal but remained imprisoned, to be extraordinarily frustrated and angry with the system. Dr Wynn Owen said, however, that he would not necessarily expect that person to be abusive and threatening or to consistently breach the rules of prison.[76]
[76] ts 178 ‑ 179.
Dr Wynn Owen said in cross‑examination that he had reviewed prison conduct records from 2001 to June 2023 and he had seen a consistent pattern of aggressive and abusive behaviour. Dr Wynn Owen said that there was an increase in the respondent's aggressive prison behaviour from 2013 onwards.[77]
Evidence of Dr Dylan Galloghly (Senior Clinical and Forensic Psychologist)
[77] ts 186.
Dr Galloghly is a senior clinical and forensic psychologist who holds a doctorate in clinical and forensic psychology. Dr Galloghly has 11 years of experience working for the Department of Justice.[78] Dr Galloghly interviewed the respondent on 10 May 2023, 31 May 2023 and 9 June 2023, for a total of four hours and 15 minutes.[79]
[78] Exhibit 1.6, 2067 [4].
[79] Exhibit 1.6, 2064 [2].
Dr Galloghly reported that the respondent presented as hostile during the assessment.[80] During the interviews, the respondent was visibly agitated with demonstrative facial and body gesturing, and mostly speaking with a raised voice. The respondent stated that he felt extremely angry and frustrated at being considered for HRSO status and in general for being imprisoned for crimes that he said he did not commit. He frequently used profanities and derogatory language to describe certain criminal lawyers, the Prisoners Review Board, previous 'court appointed experts', prison officials and judicial institutions whom he stated were incompetent and/or treated him unfairly. The respondent also used similar language to describe the female victims of his sexual offences, whom he accused of colluding with police to have him imprisoned.[81]
[80] Exhibit 1.6, 2067 [5].
[81] Exhibit 1.6, 2068 [6].
The respondent spoke at length about his grievances and mostly controlled the discourse. Dr Galloghly reported it was difficult to interrupt or interject the respondent. The respondent refused to discuss most background or risk relevant factors stating, 'it's no one else's business' and that he was 'unwilling to open up' as he had been 'screwed over'.[82]
[82] Exhibit 1.6, 2068 [7].
Dr Galloghly reported that any information gathered during the interview was mostly gleaned from diminutive moments in between the respondent's diatribes on his perceived victimisation. Further, Dr Galloghly reported the respondent displayed little awareness into his anger and agitated presentation.[83]
[83] Exhibit 1.6, 2068 [7] ‑ [8].
The respondent vehemently denied responsibility for his serious offending. He used profanities to describe his lawyer at the time and used derogatory language, such as 'maggots', to describe victims. The respondent was also reluctant to discuss his non‑serious offending, describing most of the offences on his criminal record as 'crap', and contended that his violent offending was reactionary and that he would not have been violent without good reason.[84]
[84] Exhibit 1.6, 2070 ‑ 2071 [16] - [18].
Dr Galloghly reported that the respondent refused to explore his drug use history in detail. The respondent stated that he has 'never had a problem' with drugs or alcohol use, despite offending‑related documentation indicating that he has a significant history of cannabis and intravenous (IV) methamphetamine use associated with his offending.[85]
[85] Exhibit 1.6, 2072 [28].
The respondent told Dr Galloghly that he plans to initially reside with his parents if released from prison, but he wants to live independently as soon as possible. The respondent stated that he is his own support system. Dr Galloghly noted that the respondent does not interact with his siblings or have a current support network.[86]
[86] Exhibit 1.6, 2077 ‑ 2078 [59] - [60].
Dr Galloghly considers the respondent's plan to live with his parents is not ideal, given their age and past violence restraining orders taken out against the respondent by his parents and siblings.[87]
[87] Exhibit 1.6, 2084 [97].
Dr Galloghly's assessment of the respondent's current mental health and psychological profile was hampered by the respondent's refusal to discuss certain background issues. However, Dr Galloghly is of the opinion that the respondent's offending, prison behaviour, past assessments and presentation indicate the likely presence of 'Personality Disorder (Not Otherwise Specified)'.
In Dr Galloghly's opinion the respondent presents with several personality traits that have likely caused significant impairment in his life, inclusive of his offending and rehabilitation issues.[88] These traits are primarily in the antisocial, borderline, paranoid and narcissistic domains and include:[89]
[88] Exhibit 1.6, 2079 [68].
[89] Exhibit 1.6, 2079 [68].
(1)a failure to comply with social norms;
(2)irritability/aggressiveness;
(3)inappropriate and intense anger;
(4)impulsivity;
(5)irresponsibility;
(6)lack of remorse;
(7)pervasive mistrust and suspicion;
(8)persistently bearing grudges;
(9)a reluctance to confide in others;
(10)grandiosity;
(11)entitlement; and
(12)lack of empathy.
It is Dr Galloghly's opinion that, although the respondent's lack of disclosure inhibits a thorough understanding of what predisposes him to aggression and violence, his history of aggression across many domains is evidence that he has a personality style and temperament consistent with significant anger management and reactivity problems. The respondent appears to have poor capacity to regulate his emotions. Dr Galloghly is of the opinion that the respondent may also have a heightened sexual drive and an entitled need for sexual conquest that assuages challenges to his ego or self‑worth.[90]
[90] Exhibit 1.6, 2079 [69].
Dr Galloghly reported that the respondent's aggressivity and violent behaviour appears to be prompted by various triggers including relational conflict, having to abide by rules and authority, his perception that he has been wronged, not getting what he wants and simply being challenged by others. His violence rapidly escalates in aggression. Substance use, particularly IV methamphetamine use, has likely been a major contributing factor to his sexual offending given the associations with methamphetamines and heighted sexual drive and behaviour. The respondent's 2013 serious offending suggests that methamphetamines increase the respondent's sexual drive and desire for sex and that he subsequently actions this desire with a sense of entitlement. Additionally, methamphetamine use probably accelerated general aggression and other maladaptive personality traits. Likewise, cannabis use may have fuelled his fixations on being wronged and general hostility associated with non‑sexual violent offending.[91]
[91] Exhibit 1.6, 2079 [70].
Dr Galloghly reported a primary factor that likely perpetuates the respondent's propensity for violence is his profound lack of insight into his anger problem, personality, substance use and his offending overall. Dr Galloghly noted there appears to be a form of paradox in that his personality structure likely drives his myopic fixation on his sense that he has been unjustly convicted and treated.[92]
[92] Exhibit 1.6, 2080 [71].
Dr Galloghly identified five maladaptive personality traits that likely maintain the respondent's aggressive behaviour. These include:[93]
(1)lack of empathy;
(2)lack of perspective‑thinking;
(3)paranoia;
(4)impulsivity; and
(5)irresponsibility.
[93] Exhibit 1.6, 2080 [71].
Dr Galloghly reported the respondent's ongoing behavioural issues include poor emotional regulation skills and his use of intimidation and threat. The respondent also appears to maintain hostile attitudes towards systems and professionals that he feels have not acted appropriately. He also retains hostile and misogynistic attitudes towards a certain female demographic, inclusive of his victims.[94]
[94] Exhibit 1.6, 2080 [71].
Dr Galloghly assessed the respondent's risk of recidivism using the Static‑99R, Violence Risk Scale - Sexual Offence Version (VRS‑SO), Violence Risk Scale (VRS), and PCL‑R tools.
Static-99R
The respondent scored 5 on the Static‑99R placing him in the Level IVa risk band, indicating 'Above Average' risk for sexual reoffending. This score is considered relatively high and places the respondent in the top 11% of the normative sample. High risk/needs sexual offenders with the same score have a predicted sexual recidivism rate between 18.0% and 24.8% over a five‑year period.[95]
VRS-SO
[95] Exhibit 1.6, 2080 [74].
The VRS‑SO is a fourth-generation sexual violence risk assessment tool designed to integrate risk, need, responsivity and treatment change factors relevant to sexual offenders. It contains both static and dynamic factors and is used to assess offenders' levels of risk, identify treatment targets linked to sexual offending and to evaluate an offender's readiness for change.[96]
[96] Exhibit 1.6, 2081 [75].
The respondent's risk of sexual violence recidivism based on the VRS‑SO was found to be in the 'High' risk range using traditional risk categories (i.e., low, moderate and high) and in the 'Above Average' risk range (Level IVa) using Common Language (CL) risk level ratings. Sexual offenders within this risk band broadly sexually reoffend at rates between 15.0% and 24.9% over a five‑year period. However, sexual offenders who have a combined Static‑99R and VRS‑SO score consistent with the respondent have a five‑year predicted sexual recidivism rate of 22.9%.[97]
VRS
[97] Exhibit 1.6, 2081 [76].
The VRS is a dynamic actuarial violence risk assessment tool designed to assess the risk of violent reoffending. It contains both 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.[98]
[98] Exhibit 1.6, 2081 [80].
The respondent's risk of violent reoffending on the VRS was found to be in the 'High' range using traditional risk categories (i.e., low, moderate and high), or in the 'Above Average' (Level IV) range using CL risk levels. Research indicates that offenders in the 'Above Average' CL risk range violently reoffend at rates of between 32.0% and 49.9% over a five‑year period.[99]
PCL-R
[99] Exhibit 1.6, 2081 - 2082 [80].
Dr Galloghly scored the respondent 31.2 using the PCL‑R tool, indicating that he has many features consistent with the construct of psychopathy.[100]
Dr Galloghly's opinion
[100] Exhibit 1.6, 2082 [85].
Overall, in Dr Galloghly's opinion, the respondent's risk of committing a serious offence as outlined in the HRSO Act is assessed as being in the 'High' range without a restriction order. Dr Galloghly is of the opinion that the respondent is more likely to violently reoffend than sexually reoffend.[101]
[101] Exhibit 1.6, 2082 [86] - [87].
Dr Galloghly reported that the respondent's sexual offending is likely an extension of his general aggressive and violent tendencies that can morph into sexualised violence including the use of physical and psychological coercion. His risk of sexual offending is amplified when he uses illicit substances. He may also have a high sexual drive/pre‑occupation. The respondent's denial of his sexual offending is not viewed as a risk factor in itself, but rather as an impediment to him addressing his treatment needs.[102]
Dr Galloghly's recommendations
[102] Exhibit 1.6, 2083 [89].
The respondent told Dr Galloghly that he would be willing to work with a professional if they were genuine and had his best interests at heart.[103] Dr Galloghly recommends that the respondent be assigned a strong male clinician experienced in working with personality disorder. Developing trust and a therapeutic alliance will likely be early indicators of treatment success. Increasing self‑awareness and assisting the respondent to better control his anger are appropriate early treatment goals.[104]
Dr Galloghly's oral evidence
[103] Exhibit 1.6, 2084 [97].
[104] Exhibit 1.6, 2084 [89].
Dr Galloghly gave evidence at the hearing of the application that, in his opinion, there is a risk that the respondent would direct violence at any CCO managing the respondent on a supervision order.[105] Dr Galloghly said that he thinks it would be very challenging for the respondent to comply with directions from a CCO.[106]
Any other medical, psychiatric, psychological, or other assessment relating to the respondent - s 7(3)(b)
Evidence of Emma Cashmore (Acting HRSO Planning Manager)
[105] ts 190.
[106] ts 192 ‑ 193.
Ms Emma Cashmore is a HRSO Planning Manager for the Department of Justice and produced a report dated 12 July 2023 which summarises the respondent's treatment options available through the Department of Justice.
Ms Cashmore reported that, should the respondent be made subject to a restriction order, he can be referred to the Department of Justice Forensic Psychological Intervention Team (FPIT), and an assessment of his motivation and suitability to engage in individual criminogenic intervention will then occur.[107]
[107] Exhibit 1.6, 2038 [20].
In the event the respondent is subject to a continuing detention order, he can also be referred to the Prison Mental Health Service.[108]
[108] Exhibit 1.6, 2038 [21].
Ms Cashmore gave oral evidence at the hearing that, while a senior CCO would be responsible for referring the respondent to FPIT, the respondent would have to give his consent for that referral to be made.[109] Ms Cashmore also gave evidence, in cross‑examination, that the treatment options proposed for the respondent would be available in the community.[110]
Evidence of Julie Dabala (Senior CCO)
[109] ts 203 ‑ 204.
[110] ts 206.
Ms Dabala is a Senior CCO and produced a report dated 17 July 2023 which summaries the respondent's court history, serious offending history, prison behaviour, programs, proposed community supervision plan, behaviours to be managed and strategies to manage offending behaviours.
Ms Dabala interviewed the respondent on 24 May 2023 and 27 June 2023. Ms Dabala reported that the respondent's presentation at the interview was demanding, arrogant and aggressive with what she interpreted to be an attempt at intimidation. When this was brought to the respondent's attention, he said that he did not believe his behaviour was aggressive. Throughout, the respondent maintained a focus on his perceived victimisation by various authorities. Due to the respondent's aggressive presentation, Ms Dabala chose to terminate the second interview, to which the respondent responded negatively, stating to Ms Dabala that 'you are just another manipulating woman in my life' and shouted for two prison officers to attend. He informed them that he wanted it known that it was he who had chosen to end the interview and wanted this documented, and then proceeded to document the prison officers' names in his notebook.[111]
[111] Exhibit 1.6, 2086 - 2087.
The respondent told Ms Dabala that he proposed to reside with his elderly parents upon his release.[112] Ms Dabala spoke with the respondent's brother, who also resides with the respondent's parents. The respondent's brother told Ms Dabala that it was not in the best interests and safety of the family for the respondent to reside with his elderly parents and other family members who live at the home.[113]
[112] The respondent's father has subsequently passed away.
[113] Exhibit 1.6, 2092.
The respondent does not have the support of non‑government agencies ReSet and Uniting WA, as they are not willing to engage with him following their experiences with the respondent in 2020 and 2021 which included threatening behaviour.[114]
[114] Exhibit 1.6, 2093.
Ms Dabala reported that the respondent has no confirmed employment or plan to gain employment if he is released into the community. The respondent does have a history of employment, including as a painter and decorator, in fast food outlets and department stores. His stated intention is to connect with peers in the music industry in Sydney and Melbourne and follow his passion for music. The respondent told Ms Dabala that he would like to attend university to study law and continue to work on his appeal and civil proceedings.[115]
[115] Exhibit 1.6, 2093.
Ms Dabala's report concludes with 64 proposed conditions of a supervision order should the court consider the respondent suitable for one.[116]
[116] Exhibit 1.6, 2097 - 2103.
Ms Dabala also prepared an addendum community supervision assessment report dated 10 July 2024.[117] Ms Dabala reported the respondent has recovered well from a coronary artery bypass graft at FSH on 11 March 2024.[118]
[117] Exhibit 1.7, 2191 - 2197.
[118] Exhibit 1.7, 2192.
According to Ms Dabala, the respondent has continued to exhibit an anti‑authoritarian attitude in custody. Ms Dabala sets out details of recent formal prison charges and negative incident reports, indicating multiple instances of threatening conduct towards staff and violent behaviour, including an attempt to strike an Assistant Superintendent on the head, and throwing a chair at a prison officer.[119] These recent charges are still pending.[120]
[119] Exhibit 1.7, 2192 - 2195.
[120] ts 211.
Ms Dabala reports that the respondent has refused to engage with the Community Offender Monitoring Unit (COMU), hindering attempts to explore accommodation options for him in the community, and to obtain the 2013 medical records requested by Dr Wynn Owen. The respondent has not consented to a referral to the Uniting WA HRSO Supported Accommodation Program.[121]
[121] Exhibit 1.7, 2195 - 2196.
At the hearing, Ms Dabala gave evidence that the respondent had previously engaged with Uniting WA for the purpose of a parole assessment, but that Uniting WA refused to accept him at that time because he was arrogant and aggressive toward a male case worker.[122]
Rehabilitation of the respondent - s 7(3)(e) and (f)
[122] ts 213.
In early 2002, the respondent completed the Skills Training for Aggression Control Treatment program (STAC) conducted by the Sex and Violent Offender Treatment Unit of Prison Services.
The STAC completion report states that the respondent
took an active role in the group, listening and offering advice to other group members. [The respondent] was prepared to share his own experiences with others in an effort to illustrate issues under discussion and to provide suggestions for other dealing with situations within his experience. [The respondent] demonstrated an effort to employ techniques other than violence to resolve stressful or conflict situations.[123]
[123] Exhibit 1.4, 1597.
The respondent has not participated in any treatment programs during his current term of imprisonment, despite indicated treatment needs relating to violence, sexual offending, and substance misuse.[124] Dr Wynn Owen gave evidence that the respondent was not offered any treatment programs since his imprisonment in 2013.[125]
[124] Exhibit 1.6, 2036 [5].
[125] ts 184.
Dr Galloghly reported that the respondent's attitude towards treatment, denial of his sexual offending, general fixation on his innocence and his personality style (particularly his hostility and aggressiveness) are a significant impediment to any participation in treatment programs. Dr Galloghly is of the opinion that the respondent is likely to be disruptive within a group setting and only view treatment as a means to an end.[126]
[126] Exhibit 1.6, 2084 [101].
Dr Wynn Owen also considers that standard group based initial treatment approaches are unlikely to be effective for the respondent, stating:[127]
The risk factor problems with treatment is definitely present. Problems with treatment can be related to treatment availability and accessibility, treatment relevance, treatment compliance/adherence and treatment response. [The respondent] has not been offered or participated in treatment to address substance use, violent offending or sexual offending. Standard group based initial treatment approaches are unlikely to be effective for [the respondent]. [The respondent's] presentation at interview suggests that he would not be a candidate for group therapy as he is likely to be unable to emotionally regulate in a group setting and his personal themes and views, and facilitators attempts to manage them, would significantly dominate the group dynamic such that other participants would be highly unlikely to gain any benefit and would probably become dysregulated themselves. Problems with treatment are associated with an increased likelihood of future sexual offending.
The risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence - s 7(3)(h)
[127] Exhibit 1.6, 2061 [231].
I accept the evidence of both Dr Wynn Owen and Dr Galloghly that the respondent presents a high risk of committing a future serious offence (within the meaning of the HRSO Act) if not subject to a restriction order.
The experts' assessment of recidivism risk for both sexual and violent offences, using the various actuarial and structured professional judgment instruments, is summarised in the table below.[128]
[128] State's written submissions dated 19 July 2023 [112].
Dr Wynn Owen Dr Galloghly Static-99R - likelihood of new sexual offence within 5 years 17.3% - 21.2% 18.0% - 24.8% VRS-SO - likelihood of new sexual offence within 5 years 15.0% - 24.9% VRS/Static-99R combined - likelihood of new sexual offence within 5 years 22.9% Static-99R - likelihood of new sexual offence within 10 years 27.3% - 32.1% VRAG-R - likelihood of new violent offence within 5 years 45% VRS - likelihood of new violent offence within 5 years 32.0% - 49.9% VRAG-R - likelihood of new violent offence within 12 years 69%
The need to protect members of the community from that risk - s 7(3)(i)
The respondent has received no treatment interventions to address his past violent or sexual offending.[129] Dr Wynn Owen considers the most likely scenario for future serious offending would be in the context of the respondent prioritising his need for sexual gratification over the needs of an intimate partner and using physical coercion to enable non‑consensual sexual contact. This may be more likely to occur in association with stimulant use.[130]
[129] Exhibit 1.6, 2063 [248].
[130] Exhibit 1.6, 2062 [234].
Dr Galloghly reported that the respondent's reoffending can be grouped into three scenarios:[131]
The first and most likely reoffending scenario relates to [the respondent] becoming agitated, aggressive and verbally threatening in response to perceived provocation. This behaviour can typically be contained within the prison system before escalating to physical violence. However, in the community, this behaviour could escalate to physical violence including damaging property and assault. [The respondent's] offending history denotes that potential victims range from partners and family members to acquaintances or complete strangers. There are also indications that he can respond violently to relational conflict and separations.
A second and more serious reoffending scenario relates to [the respondent's] anger issues escalating to more serious violence if under the influence of illicit substances and/or he impulsively decides to use a weapon.
A third scenario may see [the respondent's] anger issues escalating within a sexual encounter to become sexually violent. The use of illicit substances would likely exacerbate disinhibition and the level of violence used. This scenario is also more likely to occur if [the respondent] reverts to an antisocial lifestyle and/or becomes involved in social settings where drug use and vulnerable females are likely to be present.
Any other relevant matter - s 7(3)(j)
Prisoners Review Board denial of parole
[131] Exhibit 1.6, 2083 [91] - [93].
On 24 June 2021 the Prisoners Review Board denied the respondent's release to parole due to:[132]
(1)having no confirmed suitable accommodation;
(2)his release plan not including any way to adequately address his intensive unmet treatment needs in relation to violence and sexual offending, substance abuse, and poor consequential thinking in the community;
(3)his poor prison conduct indicating an inability to be managed in the community at that time; and
(4)his extensive criminal history, including violence and sexual offending which suggested a high risk of reoffending.
Prison behaviour
[132] Exhibit 1.6, 2091.
The respondent also has a lengthy charge history whilst in prison, generally involving behaving in an insulting or threatening way to prison staff.[133] The History of Board Secretariat Decision Slips indicate 21 guilty charges for poor prison conduct, three outstanding charges for assaulting police officers, and four outstanding charges for threatening and insulting behaviour, which indicated an inability to be managed in the community.[134]
[133] Exhibit 1.1, 21 - 25.
[134] Exhibit 1.1, 344 - 345.
Dr Galloghly reported:[135]
… The charges predominantly relate to aggressive behaviour towards Prison Officers including swearing, insulting, using threatening language and assault.
…
Perusal of prison incident minutes detailed a long history of non‑compliant, agitated and aggressive behaviour by [the respondent], often in response to general directive. He has a history of becoming verbally aggressive and insulting and threatening other prisoners and Prison Officers and staff. His threats have included threats to kill and threats to harm Prison Officers once he is released from prison. Many incidents detail a rapid escalation in aggression in response to outwardly trivial matters or disputes.
[The respondent] does not appear to have insight into his poor behavioural record in prison and defaults to the view that he has been the victim of derisive or nefarious behaviour from prison staff.
…
… He has also had positive work reports and he has not been deemed a management issue in more recent prison behaviour summaries.
[135] Exhibit 1.6, 2078 [38], [39] and [65].
The respondent has three current prison charges pending from incidents committed in March and April 2024.[136]
[136] Exhibit 1.7, 2192 - 2193.
The respondent called prison officers to give evidence as to his behaviour in prison.
Ms Deas, a senior prison officer at Casuarina Prison currently seconded to Banksia Hill, has worked at Casuarina Prison for around five to six years and knows the respondent as a prisoner.[137] Ms Deas gave evidence that the respondent was 'pretty good with her', but she had seen instances where he was 'not so good' with other officers.[138] Ms Deas gave evidence that the respondent was polite and respectful to her most of the time.[139] Ms Deas said that the respondent would generally follow instructions and rules when she asked and demonstrated satisfactory personal hygiene standards.[140] Ms Deas said that the respondent had a good work ethic and required minimal supervision.[141] Ms Deas stated that she did not recall the respondent grooming anyone nor did she recall any pictures of women in the respondent's cell.[142]
[137] ts 376.
[138] ts 368.
[139] ts 368.
[140] ts 369.
[141] ts 369.
[142] ts 370.
Mr Faulkner is a prison officer and has worked in the prison system for five years.[143] The respondent put to Mr Faulkner that he had not sent facsimiles on behalf of the respondent on a particular occasion, but had stamped the document as being faxed.[144] Mr Faulkner did not recall that alleged incident[145] and gave evidence that if a fax was stamped sent, he would have sent it and a receipt would have been provided to the respondent.[146] In cross‑examination, Mr Faulkner gave evidence that the respondent was a high management need prisoner who is frequently argumentative and very disruptive.[147]
[143] ts 378 - 379.
[144] ts 379 - 381.
[145] ts 389.
[146] ts 379.
[147] ts 384.
Ms Szeremenda is a senior prison officer at Casuarina Prison who knows the respondent from her time in Unit 1.[148] Ms Szeremenda gave evidence that she could not recall any high‑level incidents, such as fighting, involving the respondent.[149] However, she said that by the time the respondent was speaking to her - as a senior officer - he was 'pretty worked up', using 'colourful language' and 'quite aggressive'.[150] Ms Szeremenda noted that she was never threatened by the respondent, however, when the respondent was not satisfied with the information conveyed to him, he could get 'quite animated and colourful' with his language.[151] A substantial part of Ms Szeremenda's evidence‑in‑chief was in relation to an incident put to her by the respondent regarding the aftermath of a conversation the respondent had with another public servant.[152] Ms Szeremenda did not have a specific recollection of her conversation with the respondent after this incident, nor was she present during the incident, but does recall providing the respondent with the avenues to follow up any concerns he had.[153] Ms Szeremenda also gave evidence about the process by which an incident report is created - that it was lodged and verified on TOMS[154]: an officer would put the report in TOMS, a senior officer such as Ms Szeremenda would review it, and then a person of the 'rank above' would do the same.[155]
[148] ts 392.
[149] ts 392.
[150] ts 392 - 393.
[151] ts 394 - 395.
[152] ts 395 - 396.
[153] ts 396.
[154] Total Offender Management System.
[155] ts 399.
Mr Whitehorn, Assistant Superintendent Special Units at Casuarina Prison, has known the respondent intermittently over the last eight years due to his various roles in the prison system.[156] Mr Whitehorn gave evidence that, from his observations, he had not seen any grooming behaviour from the respondent.[157] Mr Whitehorn said that the respondent was a high management prisoner.[158] Mr Whitehorn gave the following evidence:
The respondent: … do you think I'm the type of person that just goes off for no reason?
…
Mr Whitehorn: I think you struggle to accept difficult information that doesn't fit your narrative of how things should go.[159]
…
The respondent: … do you think I'm an unreasonable person, Mr Whitehorn?
Mr Whitehorn: … I think when you're given information that you don't accept, you can become unreasonable and present in a threatening manner, which is what's caused you so many problems with staff in the unit - in the - in the prison.[160]
[156] ts 407.
[157] ts 405 - 406.
[158] ts 410.
[159] ts 411.
[160] ts 416.
Mr Grace, a senior prison officer at Casuarina Prison, knows the respondent through his work at Unit 1 in Casuarina Prison.[161] Mr Grace said that the respondent was polite and respectful at times, maintained his cell and himself to requisite hygiene standards, had a good work ethic and completed his duties to a high standard.[162] Mr Grace gave evidence that the respondent is a challenging prisoner to manage.[163] Mr Grace gave evidence that prison officers will input a report onto TOMS after an incident involving a prisoner.[164] Mr Grace said a report is read by a senior officer who, after ensuring a requisite level of quality is met, approves the report and places their own comment on TOMS.[165]
[161] ts 418.
[162] ts 419.
[163] ts 420.
[164] ts 422 - 425.
[165] ts 422 - 425.
Ms Hill knows the respondent through her role as a senior prison officer at Casuarina Prison.[166] Ms Hill gave evidence that the respondent, in her opinion, is not a management issue, is polite and respectful, generally follows rules and instructions, maintains his cell and self to requisite hygiene standards, demonstrates good work ethic, completes his duties to a high standard and requires minimal supervision.[167] Ms Hill said that she had never noticed any photos of women in the respondent's cell, nor had she heard of him grooming anyone.[168]
[166] ts 427.
[167] ts 427.
[168] ts 427.
Ms Tomkins, a senior prison officer at Casuarina Prison, knows the respondent as a prisoner at Casuarina.[169] Ms Tomkins gave evidence that the respondent was polite and respectful to her, generally follows rules and instructions, maintains his cell and personal hygiene to requisite standards, demonstrates good work ethic, requires minimum supervision and completes his duties to a high standard.[170] Ms Tomkins gave evidence that she had never witnessed the respondent grooming anyone, nor had she seen any photos of women in his cell.[171]
[169] ts 429.
[170] ts 429 - 430.
[171] ts 430.
Mr Turnbull, a prison officer at Casuarina Prison for 12 years, knows the respondent as a prisoner.[172] Mr Turnbull gave evidence that the respondent is polite and respectful and generally follows rules and instructions.[173]
[172] ts 432.
[173] ts 433.
All of the prison officers - other than Mr Faulkner and Mr Turnbull, who were not questioned on the subject - gave evidence that during the time they had known the respondent, there was never a time he was not working to appeal what he characterised as a 'wrongful conviction'.[174]
[174] ts 369, 394, 413, 419, 427, 430.
Each of the prison officers gave evidence in cross‑examination that, to the best of their knowledge:[175]
(1)the prison charge history of the respondent contained in Exhibit 1.1 was correct and accurate;
(2)they had no reason to believe that any of the findings of guilty on prison charges against the respondent were without foundation;
(3)they had no reason to believe that any of the prison records contained in Exhibit 1.1 were fraudulently created; and
(4)they had no reason to believe that any of the incident reports in relation to the respondent were fraudulently created.
Post‑Sentence Supervision Order
[175] ts 370 - 373, 382 - 383, 397 - 404, 408 - 410, 420 - 429, 430 - 431, 433 - 437.
The post sentence supervision report dated 9 January 2023[176] noted that:
(1)the respondent threatened, on multiple occasions, to hunt down the victim of his 2013 offending, interrogate her about her lies and force her to admit that she was coerced into making false allegations;
(2)the respondent had a poor history of compliance with custodial authority and had repeatedly caused management issues during his time in custody; and
(3)the respondent has clearly identifiable anti‑social attitudes which are demonstrated consistently through his lack of regard for authority, lack of regard for the welfare of others and use of violence and intimidation to exert control when denied his desired outcomes or interactions.
[176] Exhibit 1.4, 1613 ‑ 1617.
The Prisoners Review Board imposed a post‑sentence supervision order on 21 January 2023 after being of the opinion that the respondent remained a risk to the safety of the victims of his offending on the basis that his conduct indicated an inability or unwillingness to comply with directions, and that his criminal history and current offences indicated unmet treatment needs.[177]
Respondent's evidence at trial
[177] Exhibit 1.1, 344.
The respondent gave extensive oral evidence at trial, relying upon a large volume of documents.[178] Despite admitting these documents into evidence, they are of limited, if any, relevance to the issues to be determined on the application.
[178] Exhibits 2 ‑ 6.
The tenor of the respondent's evidence, and the documents, is consistent with that reported by Dr Wynn Owen and Dr Galloghly. The respondent consistently and persistently denied that he had committed the offences of which he has been convicted, blaming the victims and the police for those convictions. The respondent described the victim as a 'lying treacherous person'.[179] The respondent is adamant that his 2013 convictions are the result of police corruption, saying the police 'obviously got it in for me. They had a hand in this. And without their interjections, I wouldn't be sitting in prison. They had two other - they had complying female witnesses to - to collude with them and lie about stuff to put me in here'.[180] The respondent said 'I see myself as an innocent person who's been wrongfully convicted and I can't step away from that'.[181] The respondent also gave evidence that the prison charges were fabricated and the prison officers had failed to follow procedures.[182]
[179] ts 228.
[180] ts 293.
[181] ts 288 ‑ 229.
[182] ts 220 ‑ 221.
The respondent is focused on appealing and overturning his original convictions. He gave evidence that he needs to be released from prison so that he is on an 'equal footing as the … State Solicitor where I am out and I can access whatever it is I need to access … and gather the evidence that I need to put for my appeal'.[183] The respondent also said, in relation to his ability to pursue litigation and an appeal whilst in custody:[184]
You make it an order, your Honour, to further restrain me in prison, it would - it would just be another obstruction for me and in my pursuit of justice. I can't do it from in there. I say, I shouldn't be on an HRSO, yeah? I can't do it from prison. You know, I've tried. It's practically impossible to try and run any litigations from there. (Indistinct) is frustration. It actually turns into anger, you know? And it'll manifest itself in some way or another, your Honour.
[183] ts 229.
[184] ts 325.
The respondent gave evidence that he wished to pursue justice for an assault against him in 2013 in which he sustained head injuries as a result of a fall from a balcony. The respondent expressed the view that he was 'set up from the get go' in relation to the 2013 assault.[185]
[185] ts 233.
The respondent referred to a civil action he commenced against Acacia Prison in Supreme Court Action CIV 1975 of 2019. By this proceeding, the respondent sought leave to file an application for judicial review. The grounds of the application were that the respondent was kept in unlawful custody, was wrongly deprived of the ability to comply with legal proceedings, a breach of human rights and a deprivation of his proper medical treatment.
During the hearing, the respondent was respectful of the court and conducted himself in accordance with the directions given to him. At times he was clearly distressed and frustrated at the prospect of spending more time in custody. He appeared to me to genuinely want to make something of his life, by pursuing his music career and giving back to the community in the areas of reducing homelessness and suicide prevention.[186] However, the respondent's underlying anger at the victims of his offending, the police and the justice system was evident throughout the hearing. He gave evidence that the malicious conduct of prison staff results in people acting in certain ways - the inference being that his aggressive behaviour was only in response to the egregious conduct of the prison staff towards him.[187] The respondent did not accept responsibility for any of the offences of which he has been convicted, or his conduct whilst in prison. The respondent puts his circumstances down to the conduct of others and him being a victim of the justice system. In relation to prison officers, the respondent said:[188]
… they accuse you … and make up the circumstances in order to - to allow them to get away with their negligence and malicious conduct … by covering up their BS …
[186] ts 260 ‑ 262.
[187] ts 263.
[188] ts 280.
In relation to his response to what he perceives to be aggressive behaviour towards him by persons in authority, the respondent said:[189]
So here I am trying to be cool, calm and collected, just being myself. Often - more often than not, I'm prevented from being myself. That's why I have been attacked, either orally or physically. And I can only take so much of that, your Honour, before I respond in some way, and especially in self‑defence, and I've taken just about as much as I can take.
[189] ts 316 ‑ 317.
The respondent gave extensive evidence about the use of the prison library, fax machine and obtaining photocopies of documents for court. The respondent's demands on the library and prison staff in relation to his various court proceedings have been extensive. He has in my view been afforded a great deal of assistance from the prison staff in relation to his demands. The respondent was not in my view prejudiced because of not being able to put material before the court - the material which he tendered was extensive.
The respondent gave evidence that if he was released from custody, he had suitable accommodation with his family,[190] he wanted to get a job or work as a musician, appeal his convictions and that he did not 'have time' to chase the alleged victims of his offending.[191] The respondent said he would also do the following if he were released from custody:[192]
I've got my own complaints to make and I'm looking forward to going in there that day and making those complaints against her, against [s] and a few other people, because as far as I can tell, your Honour, from what I read so far - you know, I've spent a few thousand dollars on law books - there was no consent from me. This is entrapment, yeah, this is a lie, this is a set‑up. I was snared. So as far as I'm concerned, I want to go there as part of my parole - you know - not parole, sorry, my leaving prison plan, stuff like that. So you know that's one of the places I want to go.
[190] ts 283.
[191] ts 328.
[192] ts 335.
The respondent gave evidence that he would follow reasonable conditions on a supervision order, saying:
… but I want to be dealt with by reasonable people, not people who are going to say things and make things up and then get me breached and put back in prison and further delay any attempts that I have to appeal a wrongful conviction and/or resume the litigations that I had before the courts.[193]
…
I'll follow orders, as long as they are lawful, proper, and competent, they are reasonable orders, and not people making up things, fictitious orders. Yes.
Orders to give me harm, orders to impede and obstructing from achieving doing an appeal against conviction, meeting my daughter, meeting my boy, going to work, doing my music, going out and doing me gigs and not be stuck at home at 6 o'clock, after 6 o'clock, and going, all right, you've got to stay here. And I'm going hang on, I've worked my ass off for almost 15 years, right, I could have been a lawyer plus, yes. Instead, I chose to do music, and there's no set path to it. You've got to go out there and do the hard yards. Yes.
I can't do it, because I'm being portrayed as this person, well, you can't out at night, you've got a curfew. And (indistinct) no, that's wrong. That's just going to impede me and obstruct me from doing the things that I need to do. Your Honour, I don't have time to go nightclubbing and go to the pubs and go drinking and stuff, but if I can, I will. But at the end of the day, most of the time, I don't plan for that. I've got too many other things to do.[194]
[193] ts 305.
[194] ts 341.
The respondent said:[195]
So it would not be inconceivable to think that at some point or another I'm going to get into another fight with someone else and have to defend myself, whether it be today, tomorrow, the next day or whatever. I can only - I can only take so much, your Honour. I had open heart surgery not long ago, as you know, and I had a whole bunch of - I was going to say 'dickheads', for a better word, jumping all over me.
So here I am trying to be cool, calm and collected, just being myself. Often - more often than not, I'm prevented from being myself. That's why I have been attacked, either orally or physically. And I can only take so much of that, your Honour, before I respond in some way, and especially in self‑defence, and I've taken just about as much as I can take.
[195] ts 316 ‑ 317.
Assessment and conclusion
Is the respondent a HRSO?
In order to determine whether the respondent is a HRSO, I must be satisfied that it is necessary to make a restriction order against him in order to ensure the adequate protection of the community against the unacceptable risk that he will commit a serious offence.
I am satisfied to a high degree of probability, on the basis of acceptable and cogent evidence, that it is necessary to make a restriction order to ensure adequate protection of the community from an unacceptable risk that the respondent will commit a serious offence. In particular, having regard to the offending history of the respondent, his prison conduct, the evidence of Dr Wynn Owen and Dr Galloghly in relation to his high risk of reoffending, the likelihood that the respondent will seriously reoffend in the future is such that the community could not be adequately protected unless a restriction order is made.
I therefore, declare the respondent a HRSO.
Continuing detention order or supervision order?
Having found that the respondent is a HRSO and that it is necessary to make a restriction order to ensure adequate community protection against the unacceptable risk that the respondent will commit a serious offence, I must decide whether to make a continuing detention order or supervision order.
In so deciding, the paramount consideration is the need to ensure the adequate protection of the community. The need to ensure the adequate protection of the community does not exclude other considerations.[196] I cannot make a supervision order unless I am satisfied, on the balance of probabilities, that the respondent will substantially comply with the standard conditions of such an order.[197]
[196] Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14].
[197] HRSO Act s 29(1).
The standard conditions are set out in s 30(2) of the HRSO Act. They include reporting, supervision and electronic monitoring and relevantly:
…
(d)be under the supervision of a community corrections officer and comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32); and
(e)not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer;
(f)not commit a serious offence during the period of the order; and
(g)be subject to electronic monitoring under section 31.
The respondent has the onus of proving, on the balance of probabilities, that he will substantially comply with the standard conditions.[198]
[198] HRSO Act s 29(2).
In order to be satisfied, on the balance of probabilities, that the respondent will substantially comply with the standard conditions of the supervision order, I must be satisfied that the respondent will comply with the standard conditions so as to ensure the adequate protection of the community from the unacceptable risk of the respondent committing a serious offence.[199]
[199] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52].
In Hart,[200] Fiannaca J considered the construction of the phrase 'substantially comply with', as it appeared in s 23(1B) of the Dangerous Sexual Offenders Act 2006 (WA) (now repealed). His Honour determined that those words should be given their ordinary meaning consistent with the purposes of the legislation and the general conditions of a supervision order, the overall objectives of which are to adequately protect the community and mitigate the unacceptable risk that the offender will commit a serious sexual offence. As these words are identical to the words of the HRSO Act (and are contained within an identical section of the HRSO Act), this construction is equally applicable to s 29(1) and (2) of the HRSO Act.
[200] Hart [52].
Therefore, the effect of s 29(1) and s 29(2) of the HRSO Act is that the respondent must satisfy the court on the balance of probabilities that he will substantially comply with the standard conditions set out in s 30(2) of the HRSO Act before the court can make a supervision order in relation to him.[201]
Has the respondent satisfied the court on the balance of probabilities that he will substantially comply with the standard conditions set out in the HRSO Act?
[201] Garlett v The State of Western Australia [103], [231].
The respondent has a propensity to commit sexual and other violent offences against women whom he knows in the context of mutual drug use. His past offending shows a pattern of behaviour - he befriends females, supplies drugs to, and uses drugs with, them and then sexually and violently offends against them given the opportunity to do so. The respondent's offending history and his prison behaviour, particularly since 2013, demonstrates that he has a well‑established tendency to behave in an aggressive and violent manner in response to minimal provocation. This history is evidence of his ongoing and very significant issues with emotional regulation and impulse control.
The respondent has an entrenched and pervasive belief that he was wrongfully convicted of his offences in 2013 because of collusion between the victims and the police. Further, the respondent gave evidence to the effect that his aggressive behaviour in prison has only been in response to treatment he has received from prison staff. While the evidence of the prison officers was that the respondent was polite and respectful and could generally comply with directions, some officers also gave evidence that the respondent was difficult to manage and did not respond well to things he did not agree with. This ongoing behaviour in prison causes significant concern as to whether the respondent would substantially comply with reasonable directions of a CCO.
The respondent gave evidence that he would comply with reasonable directions if released. However, the respondent has his own view as to what constitutes a 'reasonable' direction - a view which is tainted by his belief that he is a victim. He has consistently demonstrated a lack of regard for authority. He is quick to anger and responds aggressively when he is denied the outcome he desires. I have no confidence that the respondent's view as to what is reasonable is consistent with objective standards of reasonableness.
In these circumstances, I find that there is a high risk that, if a CCO gave him a direction on a supervision order, the respondent would not substantially comply with that direction. There is a high risk that he would instead respond in a loud, abusive and intimidatory way, and his response would extend to some form of physical violence.
Further, given the respondent's prior conviction for stalking, together with comments the respondent made to the author of the post sentence supervision order report dated 13 January 2023 that he would hunt the victim of his offending down to interrogate her in relation to her lies[202] and the anger he feels towards people who he perceives have conspired against him, there is a great concern that the respondent would stalk a person in order to assist him to clear his name.[203]
[202] Exhibit 1.4, 1614.
[203] ts 174.
The respondent does not have any insight into his lack of impulse control and his aggressive behaviour towards prison officers. He has distorted attitudes towards people in positions of authority and towards the victims of his offending. The respondent, as confirmed by his evidence, is fixated on 'clearing his name' and has not demonstrated a willingness to address his unmet treatment needs as he believes he is innocent of the offences and does not require any treatment to address his offending behaviour. While the denial of his offending may not be a risk factor for future offending by itself, it is an impediment to the respondent addressing his treatment needs.[204]
[204] Exhibit 1.6, 2083 [89].
In my view, if the respondent is released on a supervision order, his belief that he has been victimised by women, the police and prison officers will negatively impact upon his ability and willingness to comply with any directions given to him by a CCO and the conditions of the supervision order more generally.
There is also a risk that the respondent, given his anger issues and his denial of illicit drug use (resulting in him not obtaining any treatment to address drug use), will engage in illicit drug use. Such drug use, in the context of a sexual encounter, increases the risk that the respondent will commit a serious violent sexual offence against an intimate partner.
I am satisfied of each of these risks to a high degree of probability on the basis of the acceptable and cogent evidence that I have outlined in these reasons.
In all of these circumstances, the respondent has failed to satisfy the court on the balance of probabilities that he will substantially comply with the standard conditions set out in s 30(2) of the HRSO Act - in particular those conditions that require him to comply with the reasonable directions of a CCO and not to commit a serious offence. That risk is unacceptable as the consequences to victims of such offending are significant - both physical and psychological. Those consequences are likely to be long term for the victims of the offending.
I must therefore make a continuing detention order in respect to the respondent pursuant to s 48(1)(a) of the HRSO Act.
Recommendations for ongoing treatment and management
Under s 64(2)(a) of the HRSO Act the applicant is required to ensure that a review of the continuing detention order that I am going to make is carried out as soon as practicable after the expiration of 12 months from the date of the commencement of the order. Therefore, a review of the respondent's detention under the continuing detention order will occur relatively shortly after the expiration of 12 months from today's date.
I remind those who are responsible for his day‑to‑day detention that the respondent is being detained in prison for control, care and treatment, and not for punishment. Every reasonable effort should be made to ensure that the respondent has his treatment needs assessed and that options for his release are explored, so that the chances of him being released at the next review date are optimised.
In my opinion, every effort should be made to ensure that the following things are done before the next review:
(1)The respondent should be offered a functional MRI.
(2)The respondent should be assessed by the prison based mental health team, with access to reports prepared for these proceedings, 2013 RPH information (if the respondent consents to its release) and findings on neuroimaging (if the respondent consents to the functional MRI), to review treatment options for the respondent's high level of arousal and emotional reactivity.
(3)The respondent should undergo a comprehensive psychiatric assessment, to review treatment options for his level of arousal and emotional dysregulation.
(4)The respondent should be referred to the Forensic Psychology Assessment Team for treatment to address his future risk of violent and/or sexual offending. This should be tailored individual therapy with a strong male psychologist experienced in working with personality disorder.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RP
Associate to the Honourable Justice Whitby
21 AUGUST 2024
- AGLC
- The State of Western Australia v De-Abreu [No 2] [2024] WASC 303
- Case
- [2024] WASC 303
- Decision Date
CaseChat Overview and Summary
The court considered the nature and seriousness of the offences, De-Abreu's criminal history, and the risk of reoffending. The High Risk Serious Offenders Act permits the making of a restriction order if satisfied that the person is a high-risk serious offender and that a restriction order is necessary to protect the community. The court found that De-Abreu met the criteria for a high-risk serious offender and that a restriction order was necessary to protect the public. The court then considered the appropriate form of restriction order, ultimately determining that a continuing detention order was necessary given the gravity of the offences and the risk of reoffending.
The court found that a continuing detention order was appropriate as it would ensure De-Abreu's continued detention in a secure facility, thereby mitigating the risk of reoffending and protecting the community. The court emphasised the seriousness of the offences and the need to protect the public from further harm. The court also noted that De-Abreu's criminal history demonstrated a pattern of violent and drug-related offending, further supporting the need for a continuing detention order.
The court made a continuing detention order under the High Risk Serious Offenders Act 2020, directing that De-Abreu be detained in a secure facility until further order of the court. The court emphasised the importance of protecting the community from the risk of serious harm posed by De-Abreu.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
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Decision
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