The State of Western Australia v Hansen [No 2]
[2025] WASC 4
•7 JANUARY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- HANSEN [No 2] [2025] WASC 4
CORAM: FIANNACA J
HEARD: 30 MAY 2023
DELIVERED : 7 JANUARY 2025
FILE NO/S: SO 15 of 2022
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
STEVEN LLOYD HANSEN
Respondent
Catchwords:
Criminal Law - High risk serious offender - Application for restriction order - Whether the respondent is a high risk serious offender - Whether unacceptable risk that respondent will commit a serious offence if not subject to restriction order - Whether necessary to make restriction order to ensure adequate protection of community - Whether community can be adequately protected by imposition of supervision order - Whether the respondent will substantially comply with standard conditions of a supervision order
Legislation:
Dangerous Sexual Offenders Act 2006 (WA) (repealed)
High Risk Serious Offenders Act 2020 (WA)
Result:
Supervision Order made
Category: B
Representation:
Counsel:
| Applicant | : | Mr B Meertens |
| Respondent | : | Ms A Fedele |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Legal Aid WA |
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 Lyddieth [2012] WASC 246
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4
Garlett v Western Australia [2022] HCA 30; (2022) 298 A Crim R 510; (2022) 96 ALJR 888; (2022) 404 ALR 182
The State of Western Australia v Abdullah [2019] WASCSR 55
The State of Western Australia v CF [2021] WASC 20
The State of Western Australia v CF [No 2] [2022] WASC 424
The State of Western Australia v Corbett [No 8] [2021] WASC 171
The State of Western Australia v D'Rozario [No 3] [2021] WASC 412
The State of Western Australia v Garlett [2021] WASC 387
The State of Western Australia v Hansen [2022] WASC 391
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Lewis [No 3] [2022] WASC 148
The State of Western Australia v PAS [No 3] [2021] WASC 117
The State of Western Australia v Sandwell [2022] WASC 206
The State of Western Australia v ZSJ [2020] WASC 330
Table of Contents
The application and its history
Statutory framework and legal principles
The issues in this application
Evidence
Consideration of the matters under 7(3) of the HRSO Act
Respondent's antecedents and criminal history
(i) Family background and developmental history
(ii) Education and employment
(iii) Relationships
(iv) Substance use
(v) Medical history
Physical health
Mental health
(vi) Criminal offending
Assault occasioning bodily harm - February 2004
Assault occasioning bodily harm x 2 - June 2005
Aggravated assault occasioning bodily harm and Deprivation of liberty - December 2005
Assault occasioning bodily harm - May 2007
Aggravated unlawful assault - December 2008
Assault occasioning bodily harm - July 2009
Aggravated assault with intent to rob and Aggravated burglary - August 2010
Threats to unlawfully kill x 3; Threats to injure x 3 - August 2015
Aggravated robbery (index offence) and Aggravated burglary - November 2017
Being armed or pretending to be armed in a manner that may cause fear - November 2017
(vii) Respondent's account of his offending
(viii) Prison history
Previous psychiatric assessment of the respondent's risk
Propensity and pattern of offending
Rehabilitation programmes and efforts to address causes of offending
Think First Cognitive Skills - February 2012
Pathways Programme - May 2012 to August 2012
Think First Cognitive Skills - September 2012 to November 2012
Intensive Violent Offending Program - May 2013 to October 2013
Brief intervention cognitive skills - June 2016
Pathways Program - November 2019 to March 2020
Waiver of participation in Intensive Violent Offending Program - April 2020
Post‑sentence supervision order
The respondent's performance in the community while subject to the ISO
Psychiatric and psychological evidence in respect of risk
Dr Wynn Owen
The respondent's presentation at interview
Diagnosis
Risk assessment tools
Treatment needs
Opinion in respect of the respondent's risk
Form of restriction order
Duration of supervision order
Recommendations
Ms Hasson
The respondent's presentation at interview
Risk assessment tools
PCL-R
HCR-20 V3
Risk Scenarios
Management strategies and treatment needs
SARA
Opinion in respect of the respondent's risk
Form of restriction order
Duration of restriction order
Recommendations
Intervention options as at 30 May 2023
Suitability of accommodation
Developments since the first hearing
Hearing 18 October 2024
Hearing 9 December 2024
Update Community Supervision Assessment report
Updated Treatment Options Report
The parties' submissions
The respondent is a high risk serious offender
The appropriate restriction order
Duration of order
Commencement date
Orders
Residence
Attendance at programs or treatment
Reporting to WA Police
Restrictions on contact with Victims
Prevention of high-risk situations
FIANNACA J:
The application and its history
This is an application by the State of Western Australia, under s 35 of the High Risk Serious Offenders Act 2020 (WA) (the HRSO Act), for a restriction order in relation to the respondent, Steven Lloyd Hansen, who, at the time of the application, was 'a serious offender under custodial sentence', and not 'a serious offender under restriction', in accordance with the meaning of those phrases under the HRSO Act.[1] The application was made on 26 October 2022.
[1] HRSO Act s 3.
At the time the application was made, the respondent was serving a sentence of 5 years' imprisonment for offences of aggravated home burglary (Criminal Code (WA), s 401(2)), aggravated robbery (Criminal Code, s 392(d)) and two counts of stealing a motor vehicle (Criminal Code, s 378). The respondent had been convicted of the offences on 1 March 2019 after a trial by jury in the Supreme Court of Western Australia. He had been tried with two co‑offenders. The sentence was imposed by Jenkins J on 17 May 2019, but was backdated to commence on 5 December 2017. The sentence of 5 years' imprisonment was imposed for the aggravated robbery, and was ordered to be served concurrently with sentences of 4 years' imprisonment for the aggravated home burglary and 12 months' imprisonment for each of the offences of stealing a motor vehicle, which were also ordered to be served concurrently with each other. Although Jenkins J made an order that the respondent be eligible for parole, he was not released on parole, for reasons I will refer to later. He was due to complete his sentence on 4 December 2022.
The offence of aggravated robbery is a serious offence for the purposes of the HRSO Act, so the respondent was a serious offender and was 'under custodial sentence' for such an offence at the time. I will refer to that offence as the 'index offence', as it provided the statutory basis for the application. The respondent was not 'under restriction' at the time the application was made in that he was not subject to a restriction order, or an interim supervision order, imposed under the HRSO Act.[2]
[2] HRSO Act s 3 (definition of serious offender under restriction).
The application was made against a background of offending by the respondent that was summarised by Quinlan CJ in his decision on the preliminary hearing of this application.[3] I respectfully adopt that summary, as follows:[4]
Mr Hansen has a long history of offending. His offending has included drug related offences, stealing, and offences involving violence. He has convictions for common assault, assault in circumstances of aggravation, assault occasioning bodily harm, unlawful wounding, breach of violence restraining orders, unlawful damage, deprivation of liberty, aggravated burglary, being armed in a way that causes fear, threats to injure and threats to kill.
Mr Hansen's criminal history includes convictions for five serious offences within the meaning of the [HRSO Act], in 2005, 2010 and 2017. Mr Hansen is currently serving a term of five years imprisonment for his recent offending.
…
The circumstances of Mr Hansen's offending on 10 November 2017 had concerning parallels with a violent home invasion committed by him in company with others in 2010.
[3] The State of Western Australia v Hansen [2022] WASC 391 (Hansen) [15] ‑ [21].
[4] Hansen [15] ‑ [16], [21].
As will emerge later in these reasons, the only significant gaps in the respondent's offending have occurred during his terms of imprisonment.
The HRSO Act provides for two forms of restriction order. The first is a continuing detention order (CDO), being an order that the respondent be detained in custody indefinitely for control, care or treatment.[5] The second is a supervision order, being an order that the respondent be subject to conditions when not in custody.[6] The application need not (and does not) specify which form of restriction order is sought,[7] although, in written submissions and at the hearing, the State submitted that the court should make a supervision order.
[5] HRSO Act s 3 and s 26(1).
[6] HRSO Act s 3 and s 27(1).
[7] HRSO Act s 35(4).
Before the court can make a restriction order, it must be satisfied that the respondent is a high risk serious offender.[8] This requires the court to be satisfied on acceptable and cogent evidence, and to a high degree of probability, that it is necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against an unacceptable risk that the respondent will commit a serious offence, as defined in the HRSO Act.[9]
[8] HRSO Act s 48(1).
[9] HRSO Act s 7(1).
The preliminary hearing of the application was heard on 18 November 2022 by Quinlan CJ, in accordance with s 43 and s 46 of the HRSO Act. His Honour was satisfied that there were reasonable grounds for believing that the court might, in accordance with s 7 of the HRSO Act, find that the respondent is a high risk serious offender.[10] Accordingly, his Honour made orders under s 46(2), including orders that the respondent undergo examination by a psychiatrist and a qualified psychologist for the purpose of preparing reports in accordance with s 74 of the HRSO Act to be used on the hearing of the restriction order application.
[10] Hansen [4], [33] - [38].
In its application, the State had sought an interim restriction order pending the determination of the restriction order application. At the preliminary hearing, the State specified that the order it sought was an interim supervision order (ISO) under s 58 of the HRSO Act. Quinlan CJ was satisfied it was desirable to make such an order, for the following reasons:[11]
[11] Hansen [43] - [51].
As I have said, there are a number of encouraging indicators in the Prisoner Performance Feedback and Pathways Program Completion Report, and Mr Hansen has the support of his immediate family and community. His family is aware of and accept his need for strict conditions.
While Mr Hansen would be subject to a post-sentence supervision order in any event upon his release, in all of the circumstances, I am not satisfied that the conditions of the post-sentence supervision order would adequately meet the requirements of community protection in the interim or indeed, Mr Hansen's own supervision needs immediately upon his release.
I am particularly influenced by two matters.
The first is that the post-sentence supervision order does not enable the use of a curfew. Whether a curfew is ultimately necessary would be a matter for the community corrections officer, but Mr Hansen's recent offences did occur night and it is important, in my view, that community corrections officers at least have the discretion to impose a curfew in relation to him, in order to ensure that they have as much scope as possible for the monitoring of his behaviour and performance while on supervision.
I should stress that a curfew should not be simply regarded as the default position. It should be used by community corrections officers if and when the circumstances suggest that it is appropriate. In particular, it would not be in Mr Hansen's interests, or in the interests of the protection of the community, were the use of a curfew to in any way impede meaningful employment or meaningful activities within the community. Those are matters which should be specifically taken into account in the management of the conditions.
As I have said, the imposition of a condition to be subject to a curfew does not require it be in place. It is, however, an appropriate precaution.
The second matter that persuades me to order the imposition of an interim supervision order rather than a post-sentence supervision order is that Mr Hansen's proposed residence will be some distance from the nearest community corrections office. It is appropriate in my view to include the capacity for reporting to and receiving visits from police in the locality, who would be able to more closely monitor Mr Hansen than community corrections officers. For those reasons, it is appropriate that an interim supervision order be imposed to enable that to occur.
Therefore, in all of the circumstances, I am satisfied that it is in Mr Hansen's interests and the interests of the protection of the community that the supervision to which he is subject include the potential for these additional measures.
I will nevertheless make the conditions of the interim supervision order as simple as circumstances will allow to ensure there is a focus on treatment of his underlying conditions and practical monitoring and encouragement of his prosocial behaviour in the community.
The application was heard by me on 30 May 2023. The application was supported by a book of materials in three volumes (BOM) tendered by the State,[12] which I will describe in more detail below. The respondent did not object to the contents of the BOM being received into evidence. For present purposes it is sufficient to note that it included the reports of the psychiatrist and qualified psychologist prepared under s 74 of the HRSO Act. The application was also supported by the oral evidence of four witnesses given at the hearing, including the psychiatrist and the qualified psychologist.
[12] Received as exhibits 1, 2 and 3 respectively.
At the hearing on 30 May 2023, the respondent, through his counsel, did not dispute that the evidence supported the conclusion that he was a high risk serious offender at that time. The issue was which restriction order should be made, particularly having regard to the paramount consideration of needing to ensure adequate protection of the community. The respondent submitted that the evidence supported the conclusion that a supervision order was appropriate, and that I could be satisfied that the accommodation that had been proposed by the respondent as his place of residence, if released subject to such order, would be suitable. As I noted above, the State's position at the hearing was that it would be appropriate to make a supervision order in respect of the respondent. It did not dispute that the accommodation proposed by the respondent was suitable.
At the conclusion of the hearing, I reserved my decision. The respondent continued to be subject to the ISO made by Quinlan CJ on 18 November 2022. I note at this stage that the evidence at the hearing of 30 May 2023 was that the respondent had been compliant with the conditions of the ISO and had taken positive steps towards his rehabilitation.
Regrettably, although I had come to the conclusion on the evidence presented on 30 May 2023 that the respondent is a high risk serious offender and that the appropriate order would be a supervision order, I was not able to give my decision within the reasonable timeframe expected.[13] Having regard to the time that had elapsed, I had come to the view, which I maintain below, that the duration of any supervision order made in determining the application would be reduced by the time the respondent had been on an ISO since it was made by Quinlan CJ.
[13] Section 28 of the HRSO Act provides: 'A court making a restriction order must, when making the order, give detailed reasons for the order.' My detailed reasons were not finalised until October 2024.
The matter was eventually listed for my decision to be delivered on 18 October 2024. However, on 9 October 2024, counsel for the respondent forwarded to my associate an email letter from the respondent's mother, setting out a number of matters concerning the respondent's conduct and change of outlook since the hearing, suggesting he had rehabilitated in a significant way, and asking that I take the changed circumstances into account in making my decision. I will refer to the details later in these reasons. Upon receiving the email, I had my associate enquire with the parties:
(1)Whether the respondent was seeking leave to reopen the respondent's case to adduce the email letter as evidence;
(2)Whether the State had any objection to the court receiving the letter; and
(3)If the letter was received without objection, whether the respondent wished to make any further submission on the question of whether the court should find that the respondent is a high risk serious offender, or whether the information was sought to be adduced on the basis that it may be relevant to the question of the duration of any supervision order made by the court.
After taking instructions and conferring with the State, counsel for the respondent, Ms Fedele, informed the court that the respondent did seek to reopen his case to adduce the email letter, and that the respondent wished to make further submissions in respect of both whether the respondent should be found to be a high risk serious offender, and the duration of any supervision order the court may make if the court finds he is a high risk serious offender. Ms Fedele subsequently filed a minute of proposed orders that included orders that: (a) the decision date be vacated; (b) the case be re-opened and re-listed for hearing on a date to be fixed; (c) the respondent have leave to tender the email letter; (d) the respondent be re-examined by the psychiatrist and qualified psychologist who had previously examined the respondent and prepared reports, for the purpose of preparing updated reports in respect of the respondent; (e) an updated Community Supervision Assessment Report be prepared in respect of the respondent by the Department of Justice; and (f) an updated Treatment Options Report be prepared in respect of the respondent by the Department of Justice. It is sufficient to note that the State subsequently indicated it did not oppose the tender of the email letter. Further, while the State was not in a position to consent to the orders sought, counsel for the State, Ms Holloway, informed the court in writing that the State did not oppose the orders sought, having regard to the exceptional nature of the circumstances, being the delay between the hearing and delivery of the judgment, and the respondent's performance on the ISO. That position aptly reflected the State's role as a model litigant. However, the question of what further assessments should be required was a matter to be determined by me, having regard to the evidence given at the hearing on 30 May 2023 and the relevance of the respondent's rehabilitation since that time to the issue of risk of committing a serious offence.
In the circumstances, the matter was listed for a directions hearing on 18 October 2024. After hearing submissions from counsel, I was of the view that there was insufficient utility in having the respondent reviewed by the court‑appointed experts for the purpose of further reports. My reasons are set out below, but it is apt to note at this stage that the opinions expressed by those experts at the hearing of 30 May 2023 had taken into account the respondent's good compliance with the ISO and the positive steps he had taken in his rehabilitation up to that point in time. However, I was of the view that an updated Community Supervision Assessment Report should be obtained to provide the court with information about the respondent's performance on the ISO since the 30 May 2023 hearing, as that would be relevant to whether the supervision order conditions proposed at that hearing were still apt and the extent to which the duration of any supervision order imposed by me should be reduced from the periods recommended by the experts at the hearing. I made orders accordingly, and the matter was listed for further hearing on 9 December 2024.
At the hearing of 9 December 2024, I received the updated reports into evidence and heard further submissions from the parties.
For the reasons that follow, I am satisfied to a high degree of probability, on the basis of acceptable and cogent evidence presented in the application, that the respondent is a high risk serious offender. I am also satisfied that the appropriate restriction order is a supervision order in the terms of the annexure to these reasons.
Statutory framework and legal principles
The application is to be dealt with under s 48 of the HRSO Act, which reads:
(1) If the court hearing a restriction order application finds that the offender is a high risk serious offender, the court must —
(a)make a continuing detention order in relation to the offender; or
(b)except as provided in section 29, make a supervision order in relation to the offender.
(2) In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.
Section 7 of the HRSO Act provides:
(1)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.
(2)The State has the onus of satisfying the court as required by subsection (1).
'Serious offence' is defined in s 5 of the HRSO Act. Relevantly, for present purposes, by s 5(1), an offence is a 'serious offence' if it is specified in sch 1 div 1 of the HRSO Act. It is sufficient to note that the respondent has previously been convicted of the following offences, all of which are specified in sch 1 div 1 of the HRSO Act: aggravated robbery, aggravated burglary, aggravated assault with intent to rob (Criminal Code, s 393(d)) and deprivation of liberty (Criminal Code, s 333).
In The State of Western Australia v ZSJ,[14] I concluded, having regard to the relationship the provisions of the HRSO Act bear to the provisions of the Dangerous Sexual Offenders Act 2006 (WA) (repealed) (DSO Act), which the HRSO Act replaced, that the concepts and criteria with which the court is concerned in determining an application under the HRSO Act are substantially the same as they were under the DSO Act. I was of the view, therefore, that the jurisprudence established in respect of the DSO Act remains relevant in construing and applying the HRSO Act, with appropriate adaptation in cases involving non‑sexual offences.[15]
[14] The State of Western Australia v ZSJ [2020] WASC 330 (ZSJ) [30] - [63].
[15] ZSJ [30] - [63].
The DSO Act was concerned with serious sexual offending (as defined in the DSO Act), and provided for the making of a continuing detention order or a supervision order in respect of a person if they were found to be a 'serious danger to the community', which, by s 7 of the DSO Act, required the court to be satisfied that there was 'an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence'.
The general approach, applying the jurisprudence developed in respect of the DSO Act to the interpretation of the HRSO Act, has been adopted in subsequent cases. However, in The State of Western Australia v Garlett,[16] Corboy J identified an arguable difference in the way the criteria in s 7(1) of the HRSO Act are to be applied, when compared with the criteria for finding a person to be a serious danger to the community under s 7 of the DSO Act. The difference turns on whether the element of necessity for a restriction order in s 7(1) of the HRSO Act is additional to the element of unacceptable risk.
[16] The State of Western Australia v Garlett [2021] WASC 387 [135].
It is arguable that the meaning given to the concept of 'unacceptable risk' under the DSO Act, elucidated by Wheeler JA in Director of Public Prosecutions (WA) v Williams,[17] included the element of necessity for the making of a restriction order:[18]
[T]he judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention. (emphasis added)
[17] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 (Williams).
[18] Williams [63]. See The State of Western Australia v Sandwell [2022] WASC 206 (Smith J); The State of Western Australia v Lewis [No 3] [2022] WASC 148 (Archer J).
However, the arguable interpretation identified by Corboy J in The State of Western Australia v Garlett should be accepted as correct, as it has been adopted in this court since then[19] and, in my opinion, it may be taken to have been endorsed by the reasons of the plurality and Edelman J in Garlett v Western Australia.[20] On that interpretation, the test in s 7 in effect involves two evaluative steps: (1) an evaluation of whether there is an unacceptable risk that the respondent will commit a serious offence; and (2) if so, an evaluation of whether it is necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against that unacceptable risk.[21]
[19] For instance, see The State of Western Australia v D'Rozario[No 3] [2021] WASC 412 (D'Rozario [No 3]) [21] (Quinlan CJ).
[20] Garlett v Western Australia [2022] HCA 30; (2022) 298 A Crim R 510; (2022) 96 ALJR 888; (2022) 404 ALR 182 [73] (Kiefel CJ, Keane & Steward JJ), [220], [225] ‑ [228] (Edelman J).
[21] The State of Western Australia v Garlett [135]; Garlett v Western Australia [73] (Kiefel CJ, Keane & Steward JJ), [220], [225] - [228] (Edelman J); D'Rozario[No 3] [21].
In Garlett v Western Australia, Kiefel CJ, Keane and Steward JJ (who were in the majority in the outcome) recognised the two distinct evaluative steps in the following passage:[22]
Whether or not a risk that an offender will commit a 'serious offence' is 'unacceptable' is a question which requires the Court's judgment as to the nature and extent of the harm said to be in prospect. Further, whether a restriction order is 'necessary' to protect against that risk requires recognition of what would otherwise be the offender's entitlement to be at liberty, an entitlement not lightly to be denied. The Court must consider whether a restriction order is necessary to ensure adequate protection of the community.
[22] Garlett v Western Australia [73].
In the same case, Edelman J noted that the criterion of 'unacceptable' is closely associated with notions of the 'adequate' protection of the community and the 'necessity' of the restriction order,[23] but went on to describe the evaluative process in a manner consistent with the two‑step approach as follows:[24]
The requirements that the risk be 'unacceptable' and that the restriction order be 'necessary' to ensure 'adequate' protection of the community direct attention to whether the identified risk to the community can be tolerated. That assessment must be made in light of the whole of the burden which would be placed upon the liberty of the offender by the making of a restriction order, including any standard supervision order conditions.
Section 7 thus requires balancing, on the one hand, the level of the risk identified at the second stage (that is, the probability of the commission of the specified serious offence) together with the magnitude of the harm associated with that risk with, on the other hand, the burden that would be placed upon the liberty of the offender by a restriction order for an offence that they have not committed …
Even if the balancing process favoured the making of a restriction order, it might still be unnecessary to make such an order if, for example, the Court were able to make orders under other legislation, such as post-sentence supervision orders under the Sentence Administration Act. Such orders might reduce an unacceptable risk to an acceptable one.
[23] Garlett v Western Australia [220].
[24] Garlett v Western Australia [226] - [228].
As to the last paragraph of the above passage, in D'Rozario [No 3], Quinlan CJ had noted that it was possible to envisage circumstances in which the court might find that it was not necessary to make a restriction order to adequately protect the community, notwithstanding that it has found that the risk of future offending was unacceptable.[25] His Honour noted that, while such a situation would be rare, an example might be where the court was of the view that, in the particular circumstances, a post‑sentence supervision order made by the Prisoners Review Board under s 74D of the Sentence Administration Act 2003 (WA) or some other external constraint may provide adequate protection of the community against the unacceptable risk that the offender will commit a serious offence (such that a restriction order is not 'necessary').[26]
[25] D'Rozario[No 3] [21].
[26] D'Rozario[No 3] [21].
Having regard to the principles referred to above, the first evaluative step under s 7 of the HRSO Act requires the court to determine whether, in the absence of any measures that would provide protection of the community against the risk that a respondent would commit a serious offence in the future, that risk is unacceptable. That evaluation requires the balancing of various considerations, which I will discuss below. The second evaluative step requires the court to determine whether a restriction order is necessary to provide adequate protection of the community against the unacceptable risk that has been found to exist. That requires consideration of whether there are measures, other than a restriction order, that would provide adequate protection of the community against the unacceptable risk. If there are, the risk could no longer sensibly be regarded as 'unacceptable'.
The court must be satisfied by acceptable and cogent evidence to a high degree of probability before it can make the findings that there is an unacceptable risk and that it is necessary to make a restriction order.
The State bears the onus of satisfying the court that it is necessary to make a restriction order.[27]
[27] HRSO Act s 7(1) and s 7(2).
More generally, I remain of the view that the concepts and criteria with which the court is concerned in determining an application under s 48 of the HRSO Act are substantially the same as under s 17 of the DSO Act, and, therefore, the jurisprudence established in respect of the DSO Act remains relevant in construing and applying the HRSO Act. I note that nothing in Garlett v Western Australia, which considered the constitutional validity of aspects of the HRSO Act, is inconsistent with that approach when construing and applying the HRSO Act. In fact, it is implicit from the plurality judgment that such jurisprudence remains relevant.[28]
[28] See for instance Garlett v Western Australia [55] (footnote 68); [103], [104], [106].
The need for the court to be satisfied 'to a high degree of probability' is a standard that is greater than a finding on the balance of probabilities but less than a finding of beyond reasonable doubt; it is otherwise incapable of further definition.[29] The test does not mean necessarily that the risk or the necessity for making a restriction order must be at some high percentage of probability. As was previously noted in respect of 'unacceptable risk' under the DSO Act, a risk may be less than 50%, yet still be unacceptable. However, the court must identify what it is that is alleged to constitute the risk and makes it unacceptable, and then consider whether or not those matters have been proved to a high degree of probability by acceptable and cogent evidence.[30] The same approach must be taken in respect of the necessity for making a restriction order to ensure adequate protection of the community.
[29] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 (GTR) [28] (Steytler P & Buss JA).
[30] GTR [34] (Steytler P & Buss JA).
In GTR, Steytler P and Buss JA explained that the word 'unacceptable' connotes a balancing exercise that will take into account the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim), the likelihood of the risk being realised, and the serious consequences for an offender if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order).[31]
[31] GTR [27] (Steytler P & Buss JA).
In considering whether it is satisfied that the offender is a high risk serious offender, the court must have regard to each of the matters specified in s 7(3) of the HRSO Act. Those matters are:
(a)any report prepared under s 74 of the HRSO Act for the hearing of the application and the extent to which the respondent cooperated in the examination required by that section;
(b)any other medical, psychiatric, psychological or other assessment relating to the respondent;
(c)information to indicate whether or not the respondent has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by the respondent;
(e)any efforts by the respondent to address the cause or causes of his offending behaviour, including whether he had participated in any rehabilitation programme;
(f)whether or not the respondent's participation in any rehabilitation programme has had a positive effect on him;
(g)the respondent's antecedents and criminal record;
(h)the risk that, if he were not subject to a restriction order, the respondent would commit a serious offence;
(i)the need to protect members of the community from that risk; and
(j)any other relevant matter.
There is overlap between some of the matters specified and the evidence relating to the various matters, which I will discuss below.
Where, as in the respondent's case, the offender has committed offences other than serious offences, those other offences may be relevant as part of the offender's antecedents and criminal record, as well as shedding light on the offender's risk of committing a serious offence, because the other offences may be connected to behaviour which has the real potential to lead to serious offending.[32]
[32] Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246 [10].
The court must disregard the possibility that the offender may be temporarily prevented from committing a serious offence by various specified measures affecting his liberty, including imprisonment.[33]
[33] HRSO Act s 7(4).
If the court finds that the respondent is a high risk serious offender, it must make a restriction order. The issue then is whether a supervision order or a CDO is the appropriate outcome. In deciding between those two options, the paramount consideration is the need to ensure the adequate protection of the community.[34]
[34] HRSO Act s 48(2).
The court should make the order that is least invasive of the respondent's right to liberty, while at the same time ensuring an adequate degree of protection of the community, having regard to the paramount consideration stipulated in s 48(2).[35] As was decided in respect of s 17(2) of the DSO Act, that requirement does not exclude other considerations. Further, the use of the word 'adequate' indicates that a qualitative assessment is required. It cannot simply be assumed that the most assured preventative measure is detention and, therefore, the protection of the community will always favour such an order.[36]
[35] The State of Western Australia v Latimer [2006] WASC 235 [49].
[36] Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14].
However, the proviso in s 48(1)(b), referring to s 29, means that the court cannot make a supervision order, and therefore must make a CDO, unless it is satisfied, on the balance of probabilities, that a respondent will substantially comply with the standard conditions of a supervision order.[37] The respondent has the onus of proving that he will substantially comply.[38]
[37] HRSO Act s 29(1).
[38] HRSO Act s 29(2).
The standard conditions referred to in s 29 are those specified in s 30(2) of the HRSO Act, which in the DSO Act were specified in relevantly identical terms in s 18(1).[39] A supervision order must contain conditions that the person who is subject to the order will:
(a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender's current name and address; and
(b)report to, and receive visits from, a community corrections officer as directed by the court; and
(c)notify a community corrections officer of every change of the offender's name, place of residence or place of employment at least two days before the change happens; and
(d)be under the supervision of a community corrections officer and comply with any reasonable direction of the officer (including a direction for the purposes of s 31 or s 32 [of the HRSO Act]);[40] and
(e)not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and
(f)not commit a serious offence during the period of the order;[41] and
(g)be subject to electronic monitoring under s 31 [of the HRSO Act].
[39] HRSO Act s 3 (definitions) and s 30(2).
[40] DSO Act s 18(1)(d) referred to 'section 19A or 19B', which correspond to s 31 and s 32 of the HRSO Act.
[41] DSO Act s 18(1)(f) referred to 'a sexual offence as defined in the Evidence Act 1906 section 36A', which included offences that were not within the meaning of 'serious sexual offence' in the DSO Act. Some of the offences referred to in s 36A of the Evidence Act are not included in the definition of 'serious offence' in the HRSO Act.
Therefore, the effect of s 29(1) and (2) of the HRSO Act (as was the case with s 17(3) and (4) of the DSO Act) is that the respondent must satisfy the court that he will substantially comply with those standard conditions before the court can make a supervision order.
The words 'will substantially comply with' in s 29(2) are identical to those that appeared in provisions of the DSO Act and bear the same meaning. In effect, that phrase means that the court must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with, and will enable the attainment of, the general objects of a supervision order and of the legislation,[42] the primary object being to achieve the adequate protection of the community by appropriate management and mitigation of the unacceptable risk that the respondent will commit a serious offence.[43]
[42] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 (Hart) [52]; The State of Western Australia v CF [2021] WASC 20 [61] ‑ [62]; The State of Western Australia v PAS [No 3] [2021] WASC 117 [17]; The State of Western Australia v Corbett [No 8] [2021] WASC 171 [48].
[43] Hart [52].
Obviously, substantial compliance with the condition that the respondent will not commit a serious offence during the period of the order should be sufficient to ensure adequate protection of the community. However, the probability that a respondent will substantially comply with that condition will almost invariably depend on the likelihood of the respondent complying with other conditions of a supervision order, additional to the standard conditions. Section 30(5) of the HRSO Act provides that a supervision order may include such other conditions as the court considers appropriate to ensure adequate protection of the community, for rehabilitation, care or treatment of the offender and to ensure the adequate protection of victims.
Factors that are relevant to the assessment of whether the respondent will comply with the standard conditions of a supervision order include the respondent's history of compliance and non‑compliance with a community-based order, including an ISO (as in this case), his attitude to the conditions of the supervision order, his willingness and capacity to comply with the conditions, what measures are in place to ensure he substantially complies, and the relative importance of any breach that might occur, in terms of the impact it would have on the practical effect of the supervision order.[44] Further relevant factors include: the offender's motivation to remain offence free and in the community; his willingness to participate in any relevant treatment program; abstinence from drugs, where that is a relevant risk factor; and demonstrated gains in treatment, self‑management and life skills.[45] The measures that are relevant to ensure he substantially complies include external constraints and monitoring, such as GPS monitoring, urinalysis testing (where that is relevant) and a curfew, and treatment, such as psychological counselling.
[44] Hart [50].
[45] The State of Western Australia v CF [No 2] [2022] WASC 424 (Archer J) [52].
Ultimately, even apart from the respondent's onus of satisfying the court that he will substantially comply with the standard conditions of a supervision order, if the court is not satisfied (which includes if it is left in doubt) that conditional release of the respondent under a supervision order will ensure an adequate degree of protection of the community, it must make a CDO.[46]
[46] Williams [86] (Wheeler JA, Le Miere AJA agreeing).
Proceedings under the HRSO Act are taken to be criminal proceedings for all purposes. This does not require that anything be proved to a higher standard than is required by s 7(1) of the HRSO Act.[47]
[47] HRSO Act s 82.
The issues in this application
Having regard to the analysis of the statutory framework and legal principles above, the first issue to be determined in these proceedings is whether the respondent is a high risk serious offender, in other words:
(1)Is there an unacceptable risk that he would commit a serious offence in the future, in the absence of any measures that would provide protection of the community against that risk?
(2)Is a restriction order necessary to provide adequate protection of the community against that unacceptable risk?
If both of those questions are answered in the affirmative, the next issue is whether the appropriate order to ensure adequate protection of the community is a CDO or release into the community on a supervision order.
Evidence
In an application for a restriction order, the court must hear any admissible evidence called by the State and, if he elects to give or call evidence, any admissible evidence given by or on behalf of the respondent.[48] The rules of evidence apply but are modified to permit the court to receive in evidence any one or more of the following:[49]
(a)any document relevant to the antecedents or criminal record of the offender;
(b)anything relevant contained in the official transcript of any relevant proceedings against the offender;
(c)any relevant material that was tendered to the court or that informed the court in relevant proceedings against the offender; and
(d)any relevant material of the kind mentioned in s 7(3) of the HRSO Act relating to the offender.
[48] HRSO Act s 84(3).
[49] HRSO Act s 84(4) and (5).
As noted above, the evidence adduced by the applicant in these proceedings consisted of the BOM[50] and oral evidence given by:
(1)Dr Peter Wynn Owen, a consultant forensic psychiatrist, who was one of the experts who prepared a report, dated 16 May 2023, in respect of the respondent's risk of committing a serious offence;
(2)Ms Julie Hasson, a forensic psychologist, who was the other expert who prepared a report in respect of that that risk, being a report dated 28April 2023;
(3)Ms Valerie Thatcher, a high risk serious offender Planning Manager within the Department of Justice, who prepared a proposed High Risk Serious Offender Treatment Options Report, dated 25 May 2023, in respect of the respondent;
(4)Ms Phillipa Casserly, a Senior Community Corrections Officer (SCCO) with the Department of Justice, who prepared a Community Supervision Assessment report, dated 10 May 2023, in respect of the respondent.
[50] While the three volumes of the BOM were received as exhibits, it is convenient to refer to them as 'BOM‑1' - 'BOM-3' respectively in the footnotes. The pagination was continuous from BOM-1 through to BOM-3. Contents of the BOM will be referred to by the page number and, where a document has numbered paragraphs, the paragraph number/s.
Volume 1 of the BOM contained materials provided by the Department of Justice, including a copy of the respondent's criminal record, a chronology of the respondent's offending prepared by the applicant, prison records, substance use test results, medical records and medical reports. It also contained transcript and other materials from the proceedings in respect of the respondent's previous convictions for serious offences.
Volume 2 of the BOM contained transcript and other materials from the proceedings in respect of the respondent's previous convictions for relevant offences not defined as 'serious offences' under the Act.
Volume 3 of the BOM contained the reports of the witnesses who gave oral evidence.
In addition to the BOM, the applicant tendered an amended chronology of serious and other relevant offences,[51] email correspondence from the State Solicitor's Office to the court in respect of the desktop spatial analysis of the accommodation proposed for the respondent if he were to be released subject to a supervision order,[52] and email correspondence from the State Solicitor's Office to the court outlining responses to queries in respect of the desktop spatial analysis.[53]
[51] Exhibit 4.
[52] Exhibit 5.
[53] Exhibit 6.
The respondent did not give or adduce evidence at the hearing.
Consideration of the matters under 7(3) of the HRSO Act
As I noted earlier, the matters listed in s 7(3) of the HRSO Act, to which the court must have regard, overlap. The matters in paragraphs (h) and (i), concerning the respondent's risk and the need to protect the community, involve conclusions that directly inform the question of whether the respondent is a high risk serious offender. Those matters are informed by the information and findings in respect of all the other matters listed in s 7(3). Consideration of the questions concerning propensity and any pattern of offending behaviour (paragraphs (c) and (d)) will be informed by the respondent's antecedents and criminal record (paragraph (g)) and the findings in the reports and assessments referred to in paragraphs (a) and (b). Those findings will also inform the matters in paragraphs (e) and (f) concerning the respondent's efforts at rehabilitation and the effect of his participation in rehabilitation programmes.
It is convenient to start with the respondent's antecedents, including his criminal history, in particular the offending that is most relevant to the assessment of his risk of serious reoffending.
Respondent's antecedents and criminal history
The following summary of the respondent's antecedents and history is collated from various materials in the BOM, including pre‑sentence, psychological and psychiatric reports prepared for proceedings in respect of the respondent's previous serious offences, reports from programmes in which the respondent has engaged, and the reports prepared for these proceedings.
Family background and developmental history
At the time of the restriction order hearing, the respondent was 37 years old.
The respondent was born in Kalgoorlie and was one of six children. He had two older brothers and three younger sisters. He told Dr Wynn Owen that he was 'born drunk', explaining that his mother had told him that she was drinking during her pregnancy.[54] However, he was not aware of any early developmental problems.
[54] BOM-3 779 [100].
The respondent's account of his early life is one of dysfunction, exposure to alcohol abuse and violence, trauma from family tragedy and a lack of adequate emotional nurturing.
The respondent recalls seeing his parents fighting, and seeing his father hit his mother 'a lot' from when he was a very young age. He told Dr Wynn Owen that he would try to hide.[55] He also said that his parents beat him when they were drunk.[56]
[55] BOM-3 779 [101].
[56] BOM-3 779 [102].
The respondent's two oldest brothers cared for the younger children. Tragically, both were killed in a fire in their home when the respondent was 9 years old.[57] The loss of his siblings had a significant impact on his parents and on him.[58] Both of his parents consumed large quantities of alcohol, and there was significant violence within the home.[59] Despite this, the respondent has said that his mother 'tried her best and always ensured the children were well fed'.
[57] BOM-3 779 [103].
[58] BOM-3 799 [3].
[59] BOM-3 799 [3].
The respondent's parents separated when he was 11 years old, at which time he went to live with an aunt and uncle.[60] His father moved away, found another partner and fathered more children.[61] The respondent has said he enjoyed a good relationship with his two stepbrothers and three half siblings from his father's relationship with the respondent's stepmother.[62] However, he told Dr Wynn Owen that this was a confusing time in his life, and that he saw his mother 'every now and then'.[63]
[60] BOM-3 [104].
[61] BOM-3 799 [4].
[62] BOM-3 799 [4].
[63] BOM-3 779 - 780 [104].
His mother also had other partners at different times. The respondent said they were all violent men who also abused alcohol and other substances. He recalls that he and his younger siblings were often afraid, and worried about their mother.[64]
[64] BOM-3 799 [5].
The respondent told Ms Hasson that he frequently ran away from home from the age of 11 and lived an itinerant lifestyle, getting involved with older antisocial peers, using alcohol and drugs and often being hungry.[65]
[65] BOM-3 799 [6].
Despite, the difficulties referred to above, the respondent recalled good times during his childhood, telling Dr Wynn Owen that he enjoyed hunting, prospecting and camping with an uncle.[66] When he was 13 years old, he returned to Kalgoorlie to live with his mother.[67] Unfortunately, the cycle of violence and substance abuse continued.[68] He told Ms Hasson that he felt 'helpless' witnessing his mother being abused, and was distressed at some of the injuries she sustained. The respondent was also a victim of such abuse, and he would attend school with injuries.[69]
[66] BOM-3 780 [105].
[67] BOM-3 780 [106].
[68] BOM-3 799 [5].
[69] BOM-3 799 [5].
While the respondent was able to find some positives in his childhood, I accept the assessments made by both Dr Wynn Owen and Ms Hasson that the respondent had a traumatic upbringing in which he was both a witness to, and the victim of, violence, and in which violence and substance abuse were normalised due to his home environment and the behaviour of adults around him.
Education and employment
The respondent enjoyed primary school, as he had many of his cousins at school with him. He said that he was 'in trouble sometimes' for being loud in class. He was able to read and write but did not find schoolwork interesting.[70]
[70] BOM-3 780 [108].
He went to high school in Laverton and Kalgoorlie.[71] He said that he was bullied by older boys, but he also bullied others as he believed that 'you have to prove yourself'.[72] He told Dr Wynn Owen that he did not enjoy, or see the point in, school, and he would truant to smoke marijuana with other kids.[73] He also described a history of truanting and aggression at school to Ms Hasson, saying he was suspended and expelled for fighting.[74]
[71] BOM-3 780 [109].
[72] BOM-3 780 [110].
[73] BOM-3 780 [111].
[74] BOM-3 799 [6].
The respondent left school during or after Year 9 and returned to Mount Margaret.[75]
[75] BOM-3 780 [112].
After leaving school, the respondent worked for a very short period with the Community Development Employment Projects (CDEP). Since then, and prior to his imprisonment for the 2017 offences, he had not engaged in paid employment. He had received social welfare payments and had supported his lifestyle through selling prohibited drugs.[76]
Relationships
[76] BOM-3 780 [114].
The respondent's first significant relationship was with a young woman named Shannon, who he has said was three years younger than him. He told Dr Wynn Owen that their relationship started when he was about 15 or 16 years old. He had three children with Shannon, the first being born when he was 18.[77]
[77] BOM-3 780 [117].
Both the respondent and Shannon used prohibited drugs. He told Dr Wynn Owen that a source of stress in their relationship was Shannon's mother 'trying to get the kid's off [them]', due to their drug use.[78]
[78] BOM-3 780 [118].
The respondent was violent towards Shannon. He told Dr Wynn Owen he became angry with her, thinking she was being unfaithful. He said she would deny the accusation when he confronted her. He described his acts of violence towards her as stemming from the fact that he was 'young and silly' and did not listen to her.[79] He was charged for the first time for assaulting his partner when he was 20 years old. At the time of the assault, he had separated from Shannon and a violence restraining order was in place.[80]
[79] BOM-3 780 - 781 [119].
[80] BOM-3 781 [120].
The respondent had another significant relationship in 2009 or 2010 with a woman named Sarah. He described her as a non‑smoker who did not use drugs, and who was critical of his drug and alcohol use. The respondent told Dr Wynn Owen that there was no violence in that relationship.[81]
[81] BOM-3 781 [123].
Sarah has a son from another partner, and she and the respondent now have a son. This relationship ended when the respondent was in prison serving a long sentence. The respondent said that Sarah told him he was 'absent too often and for too long', so she was returning to New South Wales to live.[82]
[82] BOM-3 781 [125].
When the respondent was released from prison in December 2014, after a four‑year sentence, he had planned to reunite with Sarah, however rekindled his relationship with Shannon.[83] This relationship recommenced in 2015.[84] During the short time they were then together, they had their third child. The relationship ended when the respondent returned to prison on charges that were subsequently dismissed.[85]
[83] BOM-3 781 [126].
[84] BOM-3 781 [121].
[85] BOM-3 781 [122].
After being released from prison in 2017, the respondent reunited with Sarah. He was still in a relationship with her when he was arrested for the index offence.[86] The respondent has maintained contact with Sarah and their son, and has said that they have a positive relationship.[87]
[86] BOM-3 781 [127].
[87] BOM-3 781 [128].
During his interview with Ms Hasson, the respondent acknowledged the volatile nature of his past intimate relationships, including difficulties with anger management, substance abuse, jealousy and trust issues, mental health issues, including paranoia, and poor or absent communication skills and conflict resolution skills. He said that until his most recent prison sentence he had not appreciated the seriousness of his behaviour. He said that when he began to get well in prison and took his medicine regularly, he began to realise that his lifestyle of violence, substance use, and untreated mental health issues had 'cost him everything', including his relationship and a chance to spend time with his children. He said he knew he needed to change.[88]
[88] BOM-3 801 [14].
The respondent did not indicate any immediate plans to form a new intimate relationship, stating that he would like to have some time in his own space. However, he said that he needed to learn to communicate better and was prepared to do further courses to assist him for when he is ready to meet a new partner. He indicated that his relationship with his two former partners was amicable.[89]
[89] BOM-3 801 [14].
The respondent said that, from a young age, he had mostly associated with negative peers and antisocial family members. He recognised that, in the past, he had not engaged in any prosocial hobbies, leisure pursuits or interests. Instead, he was focused on funding his drug habit, which could only be achieved through criminal means in the absence of paid employment or other legitimate sources of income.[90]
Substance use
[90] BOM-3 801 [15].
The respondent has described using alcohol and prohibited drugs from the age of 13 years. He told Dr Wynn Owen that he used alcohol regularly from the age of 13 until his late twenties, when prohibited drugs became his primary means of intoxication.[91] He claimed that his use of alcohol had 'never been a problem' for him, saying that, while he experienced alcohol blackouts, he had not had signs or symptoms of physical dependency.[92]
[91] BOM-3 779 [93].
[92] BOM-3 779 [93].
At the age of 13, the respondent smoked marijuana with peers while truanting from school, which eventually led to daily use. He acknowledged that marijuana had been a regular drug of abuse for him while he was in the community previously. He said that prior to his arrest for the index offence, he was smoking up to two 'bags' a day.[93]
[93] BOM-3 779 [94].
The respondent also began to use amphetamines when he was about 13. From the age of 14, he was injecting amphetamines almost daily. When in the community as an adult, there had only been short periods when he had abstained from amphetamine use. He told Dr Wynn Owen that, prior to his arrest for the index offence, he was using $3,000 worth of methamphetamine per day.[94]
[94] BOM-3 779 [95].
The respondent told Ms Hasson that he had sold drugs to support his own drug use. In addition to the substances already mentioned, the respondent said he had also used heroin, hallucinogens and MDMA occasionally. He denied any use of volatile substances such as paint, petrol or glue.[95]
[95] BOM-3 801 [16].
The respondent acknowledged that substance abuse has been a significant problem for him and that his use has contributed to mental health problems, relationship difficulties and violent behaviour. Ms Hasson noted that this was a big shift in the respondent's insight, because, for a long time, he had used cannabis in particular to manage his mental health difficulties.[96]
[96] BOM-3 801 [16].
The respondent told Ms Hasson that using drugs and alcohol daily felt normal for him, as he had used such substances from a very young age with his peers, various family members and other members of his local community. He acknowledged that people in his immediate environment have always been tolerant of alcohol and substance abuse, violence and other antisocial behaviours.[97]
[97] BOM-3 801 [18].
The respondent said that, during his last prison term, he made a conscious decision to cease using drugs. He has abstained from drug use for several years. He had also quit smoking some 18 months prior to being examined by the experts. He told Ms Hasson that being abstinent from substance use has had a significant positive impact on his physical and mental health.[98]
Medical history
Physical health
[98] BOM-3 801 [19].
The respondent has had a number of long‑term health issues, including a history of morbid obesity, asthma, diabetes type‑2, high cholesterol, kidney disease, sleep apnoea, a history of chronic pain and limited sight in his right eye, the lens having been removed surgically in 2017 as a result of an injury. When interviewed by Ms Hasson, he was awaiting corrective surgery. He also said that asthma was no longer an issue for him. He is prescribed various medications to manage his other health concerns.[99]
Mental health
[99] BOM-3 802 [20].
The respondent has a long history of mental health problems commencing in his late teens. There is also a family history of Bipolar Affective Disorder.[100]
[100] BOM-3 802 [21].
The respondent harmed himself while in custody at the age of 18, as he was not coping well with incarceration. During subsequent periods of imprisonment, he was admitted to the Frankland Centre, the secure psychiatric facility at Graylands Hospital, on two occasions, in 2010 and 2011, both times being referred from prison pursuant to the Mental Health Act2014 (WA), due to low mood, suicidal ideation, auditory hallucinations and referential delusions.[101] Upon discharge from the Frankland Centre, the respondent was diagnosed with depression with psychotic features. When he was admitted in 2011, his depression was worsening, and his other symptoms included social withdrawal, psychotic symptoms and suicidal ideation. When he was discharged after that admission, the diagnosis remained one of depression with psychotic features, but there was a differential diagnosis of schizoaffective disorder.[102]
[101] BOM-3 802 [21].
[102] BOM-3 802 [21].
The respondent has received mental health treatment in both the prison system and community mental health clinics for the better part of two decades. Ms Hasson noted that his mental health has improved when he has adhered to prescribed medication (a combination of antidepressant and antipsychotic medication), and has abstained from substance abuse, which has resulted in remission and almost a complete resolution of psychotic symptoms.[103]
[103] BOM-3 801 [22].
The respondent has shown an awareness of the need to take medication to manage his mental health. During his interview with Ms Hasson, he spoke of a history of paranoia, believing people were out to get him, and that he was being watched and followed. He also reported hearing voices telling him that his partner was cheating on him, and that he experienced hallucinatory signs from the television that his partners were cheating. He indicated that the voices never told him directly to harm anyone, but he had believed that if he did not 'get people, they would get [him]'.[104]
[104] BOM-3 801 [22].
When interviewed by Ms Hasson, the respondent said that all of his previously reported psychotic symptoms had resolved, saying he had 'never felt better'.[105] At the time, the respondent was receiving depot medication monthly (Paliperidone) and was attending a community mental health service in Esperance weekly, seeing a mental health worker with whom he had developed a good rapport. He was also seeing a psychiatrist monthly.[106]
[105] BOM-3 801 [23].
[106] BOM-3 801 [23].
In 2011, Dr Adam Brett, a consultant forensic psychiatrist, completed an assessment for court in respect of the respondent for the purposes of his sentencing in the Supreme Court in December 2011 (see below for the relevant offending). He diagnosed the respondent with antisocial personality disorder, drug abuse, and schizoaffective disorder. In 2017, the respondent was assessed by another psychiatrist, Dr Smith, who disputed the diagnosis of schizoaffective disorder, giving the opinion that the respondent's symptoms were more consistent with a diagnosis of bipolar affective disorder. In 2019, in a report prepared to assist the court for the purposes of sentencing the respondent in May 2019, the respondent was assessed by another psychiatrist, Dr Siva Bala, who diagnosed him with substance use disorder (amphetamines and cannabis) in remission in a controlled environment, antisocial personality disorder and schizoaffective disorder. Dr Bala noted that a diagnosis of bipolar disorder could also be considered, but he preferred a diagnosis of schizoaffective disorder due to the respondent's reports of ongoing psychotic symptoms, such as auditory hallucinations, in the absence of depression or mania.[107] In a bipolar affective disorder, psychotic symptoms occur only in the context of depressive or manic episodes which characterise the disorder.[108] However, Dr Bala considered the distinction to be academic (forensically), and to make no difference in terms of the respondent's offending history or treatment needs.[109]
[107] BOM-2 548 [36(b)]; BOM-3 801 - 802 [24].
[108] BOM-2 548 [36(b)].
[109] BOM-2 548 [36(b)]
In relation to whether there has been any causal connection between the respondent's mental illness and his offending, Dr Brett noted in 2011 that:[110]
It may have been difficult to differentiate intoxicated states with an emerging mental disorder. The impact of his mental disorder on his offending behaviour appears to be secondary to his drug use and personality structure.
[110] BOM-1 481.
In 2019, Dr Bala noted that the respondent's offending behaviour was related to his 'longstanding tendency towards antisocial activities and severe substance use'.[111] He was of the view that, although it was possible that the respondent may have been psychotic at the time of his offending, his psychosis did not have a direct bearing on the offending.[112] Dr Bala said:[113]
Although he could have made other choices, there is a longstanding pattern of making poor choices driven by voluntary substance abuse and this relates to his need for instant gratification, lack of empathy for others, lack of structure in life and negative peer associates.
Criminal offending
[111] BOM-2 550 [37(a)].
[112] BOM-2 550 [37(a)].
[113] BOM-2 550 [37(a)].
The respondent's previous offending was described as follows by Jenkins J when she sentenced him in 2019:[114]
You have a lengthy prior criminal record for serious offences which commences when you were 17 years of age. For example, you have at least 10 convictions for serious assaults.
In December 2011, you were convicted in this court of a series of offences related to a violent home invasion of an occupied home which was committed in company for the purpose of stealing property and drugs. Thus, there are similarities between that offending and this offending.
You were sentenced to 2 years and 2 months' imprisonment which was cumulative on another sentence of 2 years' imprisonment you were then serving for violent offences. The sentence of 2 years and 2 months was less than you would have otherwise received because of matters which are not relevant to sentencing you today.
You must have been released from those sentences in late 2014. It seems that you stayed out of trouble for about a year, but in August 2015 you committed a large number of threat to injure offences for which you received another 10 months' imprisonment.
You would have been released from prison from those sentences in mid‑2017. Given what you told the report writers, it seems that you almost immediately recommenced using drugs and committed these offences about five months later.
[114] The State of Western Australia v Abdullah [2019] WASCSR 55 [56] ‑ [60]. The citation for the sentencing remarks bears only the name of one of the respondent's co-offenders, although the respondent was named in the heading.
The facts of the respondent's relevant offending prior to the index offence are referred to in materials in the BOM and were summarised by the applicant in the 'Chronology of serious and other relevant offences'.[115] It is necessary to outline the prior offending to provide context for findings later in these reasons. The circumstances were as follows.
Assault occasioning bodily harm - February 2004
[115] BOM-1 11 - 14. The Chronology incorrectly referred to the aggravated burglary offences committed in 2010 and 2017 as serious offences for the purposes of the HRSO Act. The error was identified by counsel for the applicant at an early stage in the hearing (ts 40), and it did not have any bearing on the opinions expressed by the expert witnesses (see ts 45 and ts 77).
On 10 February 2004, when the respondent was 18 years old, he became involved in an argument with a 15‑year‑old male in the carpark of a takeaway food outlet. He punched the victim in the eye, causing him to fall to the ground. The victim suffered considerable swelling and broken skin to his right eyebrow. The respondent was sentenced in the Court of Petty Sessions to an intensive supervision order for 8 months.
Assault occasioning bodily harm x 2 - June 2005
These offences, for which the respondent was sentenced in the Kalgoorlie Magistrates Court in March 2006 were committed against two victims. On 25 June 2005, when the respondent had just turned 20 years of age, he went to a house with others, intending to confront the occupier about a recent offence. Having entered the house, he found one of the victims and punched him. He then grabbed the second victim by the throat and punched him in the face. At the same time, a co‑offender was hitting the second victim's lower limbs with a steel pole. The second victim managed to escape. The respondent then found the first victim in the roadway and punched and kneed him to the head and body. Both victims suffered injuries that bled, as well as bruising and swelling.
The respondent was sentenced to a total term of imprisonment of 6 months and 1 day.
Aggravated assault occasioning bodily harm and Deprivation of liberty - December 2005
On 18 December 2005, when the respondent was 20 years of age, he assaulted his then de facto partner, who was 17 years of age, in a serious manner. His partner had taken out a violence restraining order, which prevented the respondent from approaching within 50 metres of her or threatening, harassing, abusing, intimidating or assaulting her. At the time of the offending, the respondent was intoxicated by alcohol and amphetamines. Upon seeing his partner, the respondent chased her up a street and threatened to damage her car if she did not drive him to his father's house. He ordered her into the back seat of the car, sat next to her, and punched her to the face. The victim then drove him to his father's home. The respondent continued to strike the victim during the drive. When they arrived, he pulled her out of the car and forced her to walk with him towards his aunt's house. The victim managed to escape. The respondent caught up with her and threatened to kill her. He made the threat in front of people outside the house. He was sentenced for the offences of aggravated assault occasioning bodily harm and deprivation of liberty in the District Court at Kalgoorlie on 27 March 2006. He was sentenced to a total effective sentence of 16 months' imprisonment. Around the same time, he was sentenced for other offences of violence and the contravention of the violence restraining order.
The offence of deprivation of liberty is a serious offence for the purposes of the HRSO Act.
Assault occasioning bodily harm - May 2007
On 18 May 2007, the respondent was involved in a fight at a party. Without warning, he punched the victim in the mouth, his right eye and right ear. The respondent claimed to have done so to prevent the victim from hitting someone else. He was sentenced in the District Court in Kalgoorlie on 11 December 2008 to a term of imprisonment of 6 months and 1 day, conditionally suspended for 18 months.
Aggravated unlawful assault - December 2008
This offence was committed by the respondent against his 23‑year‑old aunty when he was also 23 years of age. On 19 December 2008, they were drinking together. The victim woke the respondent and asked him to take her home. He became angry and pushed her to the ground, where he punched her more than once. He was fined for this offence.
Assault occasioning bodily harm - July 2009
On 31 July 2009, the respondent went to the victim's home. There, they became involved in an argument, during which the respondent punched the victim, causing him to fall to the ground. The respondent then got on top of the victim and repeatedly punched him in the face and head. He dragged the victim outside along the ground. He then picked up a garden ornament and dropped it several times on the victim's body, including on his head. He then left. He was sentenced in the Kalgoorlie Magistrates Court on 14 February 2011 to 18 months' imprisonment cumulative.
Aggravated assault with intent to rob and Aggravated burglary - August 2010
These were offences arising from the incident that Jenkins J described as having similarities to the offences for which she sentenced the respondent in 2019. As her Honour said, the offending involved a violent home invasion of an occupied home which was committed in company for the purpose of stealing property and drugs.
On 3 August 2010, the respondent and three other people went to an associate's home and announced their arrival. The respondent entered the home when the door was opened. Inside the home, he picked up a pair of scissors and threatened to rob the occupants. This was the offence of aggravated assault with intent to rob, which is a serious offence for the purposes of the HRSO Act.
The co-offenders entered and searched the house for property to steal. They left, having stolen property worth approximately $1,000, along with some cannabis.
The respondent was sentenced in the Supreme Court on 1 December 2011 to a total term of imprisonment of 2 years and 2 months.
Threats to unlawfully kill x 3; Threats to injure x 3 - August 2015
On several days in August 2015, the respondent made threats to kill or injure his then de facto partner. From the history outlined above, it will be apparent this was Shannon. She was pregnant with their third child at the time of the offences. The respondent was in prison. On a number of occasions he called his partner, abused her and threatened her. He also called his mother from prison and instructed her to post threats to his partner from his Facebook account to her Facebook profile.
On 12 August 2015, the respondent threatened to kill the victim and her dog. On 16 August 2015, he instructed his mother to post something on Facebook threatening to burn the victim's bus with petrol. Also on 16 August 2015, the respondent directly threatened to burn the victim's bus with her in it. On 18 August 2015, he threatened to harm her and her dog, threatening to jump all over her head. On 19 August 2015, he threatened to kill her by jumping on her head and burning her. On 24 August 2015, he instructed his mother to post to the victim's Facebook account a threat from him to kill her.
The respondent was sentenced on 30 May 2017 in the District Court at Perth to a total sentence of 10 months' imprisonment, consisting of the same sentence for each of the offences, to be served concurrently.
Aggravated robbery (index offence) and Aggravated burglary - November 2017
In sentencing the respondent in 2019 for the index offence and the aggravated burglary offence, Jenkins J stated the facts of the offending, as found by her, at [10] - [29]. Those facts may be summarised as follows:
(1)In the early hours of Friday, 10 November 2017, the male adult complainant was in bed at his home in Boulder. He was alone in the house. The house had a two metre high fence around it. One of the front panels of the fence was a vehicle gate. Within that gate was a smaller gate through which visitors could enter into his yard. The property also had a CCTV camera located on the edge of the roof of the house at the front of the property. The camera filmed the front yard. The complainant had screens in his house which displayed the footage from that camera and other security cameras around the house.
(2)Prior to going to bed, the complainant locked the gates in the fence, although it was not clear how the gates were secured.
(3)At about 1.30 am, the complainant awoke and heard a noise coming from his front gate. When checked the security camera screen, he could not see any footage from the camera. Photographs taken by the police subsequently showed that a cloth had been placed in front of the camera. Jenkins J was satisfied that, before the complainant awoke, either the respondent or his juvenile co‑offender placed the cloth in front of the camera. Her Honour thought it likely that the juvenile co‑offender had done it, as he was the younger, slimmer and fitter of the two of them.
(4)The complainant then heard a voice calling his name. He opened the front door of the house and saw the juvenile co‑offender and the respondent standing in the front yard of the house, inside the security gate. While it was not clear how they got inside the yard, her Honour considered it logical that one of them, logically the juvenile offender, had climbed over the fence and opened the visitor gate to allow the other person inside.
(5)The complainant knew both the respondent and the juvenile offender, but he was suspicious about them being inside his yard. Nevertheless, he opened the security screen of his front door to speak to them, and they both barged into the house. The respondent and his co-offender asked for water and told the complainant that they were on the run from the police.
(6)A short time later, the complainant heard the doorbell ring. He went to the front door and thought he heard someone call out 'Steven', which prompted him to tell the respondent that there was somebody asking for him. The respondent approached the door and said that they were calling instead for the complainant.
(7)The complainant then saw three men inside the yard walking towards his house. While he had testified at the trial that the three men were wearing bandanas over their faces, her Honour did not consider it necessary to make a finding as to whether they were wearing bandanas or not.
(8)A third co-offender, who also came to be sentenced by her Honour, was one of the three men. The complainant did not know him. The three men entered the house.
(9)The complainant went back towards the kitchen area. The respondent stood near him and told him that he was being robbed. The juvenile offender was close by. The respondent then told the complainant to lay face down on the ground. The complainant complied. At the respondent's direction, two of the offenders then tied the complainant's hands and feet with cable ties and an electrical cord. The respondent then directed them to drag the complainant down the hallway while he was tied up. The co-offenders dragged the complainant down the hallway and left him near his bedroom.
(10)All of the offenders then searched the house looking for property to steal. The respondent was in charge of the offenders and directed the search, which continued for some time. Various items of property were stolen, including jewellery, clothing and electronic equipment. The respondent asked the complainant if there was a safe in the house, indicating that he was intent on stealing as much property as he could. A crate containing a coin collection was also stolen.
(11)The offenders took the stolen items outside to two cars, which were owned by the complainant and his partner, who was not present at that time. They also took the keys to both vehicles.
(12)Her Honour noted that the photos taken of the house afterwards showed that it had been ransacked.
(13)At some point during the search, the respondent threatened to take the complainant out bush and to 'split' him. The respondent also kicked the complainant in the face when he was on the ground, which resulted in bruising and swelling to the complainant's cheek. The other offenders also inflicted blows to the complainant, but they did not result in any significant injuries.
(14)Whilst the offenders were outside at the vehicle, the complainant managed to break free from his restraints. He ran out the back of the house. Some of the offenders chased him, but he managed to escape. He knocked on doors seeking help, eventually waking a resident who lived nearby. The police were then called.
(15)The five offenders drove from the property in the stolen vehicles, which were not recovered.
(16)The whole incident lasted a number of hours.
I note that the concern raised in the desktop spatial analysis is not a reason why the respondent should be denied such accommodation, if it is the only available safe location for him, given his demonstrated capacity to remain abstinent from alcohol use, and the fact that he remains subject to conditions that enable monitoring of alcohol and drug use.
Ms Casserly reported that the respondent had been given permission upon request to engage in regional travel, and he had been compliant with all requirements. The confidence placed in the respondent by his supervisors is reflected in the fact that he has been allowed overnight stays away from Kalgoorlie.
Ms Casserly referred to a number of events that had occurred in the respondent's life since the hearing in May 2023, which had created stressors and difficulties for him. She summarised the situation as follows:[391]
Mr Hansen has experienced a number of challenges since his release from custody. Throughout the events arising, Mr Hansen has continued to communicate stressors and concerns during supervision contacts, remained proactive in his management of the situations, and demonstrated insightful reflection post-incident.
[391] Exhibit 8, page 7.
The events outlined by Ms Casserly included the support the respondent had provided to his mother and sister in relation to court proceedings, various issues concerning his adult children, disappointment when his prior partner who is in New South Wales broke off contact after they had made arrangements for her to travel to Kalgoorlie, with the possibility that she might relocate there, and his son's involvement in an incident of family violence. In respect of the incident concerning his former partner, Ms Casserly said:[392]
Notwithstanding, the frustration relayed by Mr Hansen and a decline in his level of participation in supervision contacts for a three week period following, he continued to comply with directions to report for supervision issued, as well as other requirements of his ISO.
[392] Exhibit 8, page 8.
That incident tends to show that there remains a degree of fragility to the respondent's capacity to navigate difficult emotional circumstances. It seems to me this is precisely the sort of situation referred to by Ms Hasson, in which the respondent would benefit from having counselling available to him.
That said, the respondent has demonstrated a capacity to resort to the assistance available to him to deal with emotional difficulties arising from his relationships. Ms Casserly referred to the following incident:[393]
Most recently, Mr Hansen contacted ACCC on 06/11/2024 to discuss his reaction to inappropriate comments made by his former partner, located in Kalgoorlie, on social media. Mr Hansen described feeling angry immediately and reactiveness in a direct message sent to his former partner, however stated he then took time to consider his actions and determined to block communication instead. Mr Hansen was able to identify the difference in his response to this event, in particular in comparison to actions he would have taken previously, including threats and violence.
[393] Exhibit 8, page 9.
Ms Casserly reported that the respondent continues to express his intention to comply with the conditions of any supervision order imposed on him.
The respondent had applied for public housing prior to the hearing of May 2023. The application, in which he was supported by the Department, was lodged on 19 May 2023. He remains waitlisted within the Esperance area.
The respondent has made repeated applications for employment. He engaged in trial employment with a pizza restaurant as a delivery driver, and subsequently was given work for up to five days a week. However, he was stood down when damage was caused to the vehicle he was driving. Another employee had also used that vehicle, and the respondent denied he had caused the damage. However, the employer subsequently informed him that neither he, nor the other employee, would be offered further shifts.
Ms Casserly reported that the respondent is currently enrolled in a Certificate III in Civil Construction Plant Operations, facilitated by Australian Business and Vocational Training, and funded by his job search provider in Kalgoorlie.
Ms Casserly summarised the respondent's performance as follows:[394]
Mr Hansen has demonstrated compliance with his HRSO ISO conditions since his release on 04/12/2022, aside from two missed urinalysis tests on 17/03/2023 and 27/12/2023. It is noted these two absences were related to forgetfulness and did not raise concern for a lapse to illicit substances, further noting his timely re-engagement. Mr Hansen has also navigated some complex family issues and life stressors since his release, however readily employed prosocial avenues to support resolve of these issues. He has often reflected the avenues taken contrasts with how he would have navigated these challenges historically. He has seen benefit to the techniques employed, which appears reflective of sustained behavioural change. Mr Hansen is understanding of the likely HRSO Declaration and has indicated willingness to continue to comply. The proposed conditions of a HRSO SO, remain mostly unchanged from the previous CSA, given reasons outlined above, however there has been no evidence to suggest the current conditions under the ISO have not adequately managed the risk. In the event Mr Hansen is Declared a HRSO and a SO imposed, subject to collaboration with the Risk Management Team, it is likely the conditions will be managed responsively to Mr Hansen's ongoing reintegration to the community, to prevent further serious offending.
Updated Treatment Options Report
[394] Exhibit 8, page 12.
In the Updated Treatment Options Report, Ms Cashmore said that the explanation as to why Telehealth counselling was not recommended was not accurately reported in the previous Treatment Options Report or the evidence given at the hearing on 30 May 2023. However, it is still not clear to me from the updated report why Telehealth would not be suitable. In any event, Ms Cashmore reported that, when the initial referral to FPIT had been declined, the experts' reports were not available. Subsequently, it had been determined that psychological intervention was considered appropriate, and a fresh referral was accepted on 12 November 2024. In the absence of face‑to‑face counselling being available in Kalgoorlie, the respondent was waitlisted for assessment of his suitability for intervention by Telehealth. He was still waitlisted at the time of the report.
In relation to the possibility of Telehealth counselling occurring with the respondent at home, Ms Cashmore said that the following response had been received from the acting Manager of FPIT:
The environment in which the telehealth (i.e. videoconference) service will be received by the offender is an integral part of evaluating whether telehealth is an appropriate method of intervention delivery for the offender. The offender will need to be in a room in a Departmental office and using Departmental equipment rather than personal devices in their home environment or at any other location. This is in consideration of a range of safety and clinical issues that are specific to the high risk forensic population that we provide intervention to. During intervention it may become apparent there is a risk of harm to the offender and/or to others, and communication and management of this needs to occur swiftly and in conjunction with ACC staff, which cannot occur if the offender is in a home (or other - potentially unknown) location. There are also concerns about breaches of confidentiality should others be present which may not be immediately apparent to the treating psychologist, as well as the need to be in an environment that is free from distractions and interruptions, with access to appropriately secure and reliable technology.
While one might query whether any of the concerns raised in that response are applicable to the respondent, given the opinions expressed by Dr Wynn Owen and Ms Hasson, I accept that, in general terms, the reasons provided appear to be properly based in forensic analysis, having regard to the experience of professional counsellors provided by FPIT.
The parties' submissions
The parties' submissions may be simply stated.
The applicant submitted that, having regard to the evidence of Dr Wynn Owen and Ms Hasson, the court can be satisfied to the requisite level that the respondent is a high risk serious offender. Further, in light of all of the evidence, the applicant submitted that the court could be satisfied that a supervision order would provide adequate protection of the community and, therefore, was the appropriate restriction order. Further, having regard to the time that has elapsed, the fact that the respondent has not committed any offences and that he has been compliant with the ISO, and the apparent sustained change in attitudes and behaviour over the last two years while subject to the ISO, since he was released, the applicant conceded that the conditions it had proposed for the supervision order that were additional to conditions of the ISO were no longer necessary. Further, after consultation with the supervising authorities, the applicant was now of the view that the curfew conditions were no longer necessary. Accordingly, the applicant submitted an amended supervision order in the terms of the supervision order annexed to these reasons as the order that would be appropriate. The applicant submitted that the proposed conditions had proven to be effective to mitigate the respondent's risk over an extended period of time.
The respondent had originally acknowledged at the hearing on 30 May 2023 that the court could be satisfied on the evidence in the hearing that the respondent was a high risk serious offender. The respondent submitted that the court could be satisfied the respondent would substantially comply with the standard conditions of a supervision order and that such an order would provide adequate protection of the community. At that stage the matters in issue from the respondent's perspective were the duration of a supervision order and the conditions necessary to manage the respondent's risk. The respondent submitted, appropriately, that the conditions should be no more than are necessary to provide adequate protection of the community. In that context, there was an issue as to whether the conditions concerning monitoring of the respondent's electronic devices were necessary.
As I indicated in the introductory section of these reasons, after the email letter was received from the respondent's mother, and counsel were invited to make submissions as to what further steps should be taken, the respondent submitted that the respondent should be reviewed by Dr Wynn Owen and Ms Hasson, as, given the lapse of time and the respondent's sustained compliance with the ISO and changed circumstances, they might reconsider their opinions about the level of the respondent's risk. However, when the hearing resumed, counsel for the respondent acknowledged that, having reviewed the evidence from the first hearing, it was apparent that the opinions in respect of the respondent's risk were based mainly on historical factors, rather than dynamic factors, and that the experts had come to their views having regard to the respondent's good performance on the ISO and apparent changes in attitudes and behaviours at that stage, and having regard also to what they considered to be outstanding treatment needs. In those circumstances, counsel properly reverted to the respondent's original position, that is, that the court could be satisfied on the evidence that the respondent is a high risk serious offender. The respondent submitted that the conditions of the supervision order could now be reduced to those proposed by the applicant, and that the term of the supervision order should take into account the whole of the time the respondent has been on the ISO.
The respondent is a high risk serious offender
In determining whether the respondent is, at this time, a high risk serious offender, I have relied on all of the evidence to which I have referred above, which I consider to be acceptable and cogent.
I have found, earlier in these reasons, that the respondent has a propensity to commit violent offences, including serious violent offences. I referred to the existence of patterns to his offending, the most significant of which has involved a relapse into illicit drug use and, at times a relapse into mental illness due to a failure to obtain proper treatment or because of the effects of drugs. There is no doubt that the respondent's upbringing has contributed to his antisocial and violent behaviours. Ms Hasson explained the phenomenon as follows, particularly in the context of domestic violence:[395]
Often conceptualised as the 'cycle of violence' or 'intergenerational transmission theory' when applied to the family, the theory states that people model behaviour that they have been exposed to as children. Violence is learned through role models provided by the family (parents, siblings, relatives, and boyfriends/girlfriends), either directly or indirectly (i.e., witnessing violence), is reinforced in childhood, and continues in adulthood as a coping response to stress or as a method of conflict resolution. During childhood and adolescence, observations of how parents and significant others behave in intimate relationships provide an initial learning of behavioural alternatives which are 'appropriate' for these relationships. Children infer rules or principles through repeated exposure to a particular style of parenting. If the family of origin handled stresses and frustrations with anger and aggression, the child who has grown up in such an environment is at greater risk for exhibiting those same behaviours, witnessed or experienced, as an adult. The family not only exposes individuals to violence and techniques of violence, but the family also teaches approval for the use of violence. Children learn that violence is acceptable within the home and is an effective method for solving problems or changing the behaviour of others. Transmission of violent behaviour occurs through processes of modelling, failure to learn appropriate ways to manage conflict, and reinforcement for violent behaviour. Normal coping mechanisms may not be learned or may become impaired, leading to violence as the ultimate resource. The environment in which Mr Hansen was raised, especially in adolescence when he was in the early stages of forming his own intimate relationships exposed him to violence and it is likely some of his behaviours are 'learned' and others relate to his personality style.
[395] BOM-3 825 [123].
In a real sense, the respondent was moulded by his upbringing. However, he has had many opportunities to rehabilitate and to learn ways to break out of the mould. In the past he has failed. During his most recent term of imprisonment, and while he has been subject to the ISO in the community, he has taken significant steps towards breaking the mould and finding a way to lead a prosocial life. However, he has an antisocial personality disorder, a substance abuse disorder, and an underlying mental illness. The latter two conditions are in remission, but the respondent remains vulnerable to relapsing into antisocial ways, including drug use and violent offending, unless he has sufficient internal resources and vigilance. Of course, the question is not whether he would engage in antisocial behaviour or offending short of serious offending for the purposes of the HRSO Act. However, it has been the lifestyle of antisocial behaviour and drug use, distorted cognitions and attitudes, and deficits in emotional regulation that have led him to the use of violence, and to the commission of serious violent offences.
Earlier in these reasons, I referred to the fact that the respondent's apparent gains from treatment in 2012, 2013 and 2016 were not enduring, in that he returned to drug use and violent behaviour and committed serious offences in 2017 of a similar kind to those he had committed in 2010. I also noted that, at the conclusion of the earlier treatment programmes, the respondent appears to have lacked self‑awareness and had been overconfident in his ability to implement changes in his life consistent with what he had learned in the programmes. The question remains whether, the gains he has made in the Pathways Program he completed again during his most recent period of imprisonment will endure. We have the benefit of the lengthy period he has been on the ISO from which to draw conclusions in that regard. The indications from his abstinence from drugs and his conduct overall are that the respondent has been able to implement changes on this occasion. However, he has done so in the context of being subject to the conditions of the ISO, which have imposed constraints on his freedom as well as providing for supervision and monitoring of his behaviours. While the conditions were intended primarily to protect the community against the risk that the respondent would commit a serious offence, it is evident from the evidence at the first hearing in May 2023 and at the second hearing in December 2024 that the conditions have also been of benefit to the respondent by providing him with structure, guidance, and encouragement for a pro-social life. He did not have the same degree of restrictions and assistance when he was released from prison on prior occasions. While it is possible that he would have been better placed to implement the changes in his life on this occasion without the conditions of the ISO, the extent to which his gains from the treatment programmes might have been maintained over the long term in such circumstances may be doubted, having regard to his history of relapse. The apparent maintenance of treatment gains cannot be judged in a vacuum.
Nevertheless, the respondent has demonstrated significant insight and initiative in bringing difficult situations to the attention of his CCO when he has perceived that he may be put at risk of relapse, including in terms of potential emotional instability. He has demonstrated a capacity to implement skills and strategies he has acquired to avoid risk situations. This augurs well for progression in the not‑too‑distant future to self‑sufficiency, which includes knowing when and how to seek help.
There is still a need for the respondent to engage in further counselling to consolidate the changes he has made. Counselling will also allow for continuing assessment by a psychologist of the extent to which changes have been consolidated. It is incumbent on the Department to make appropriate counselling available to the respondent in a timely way as part of the treatment aspect of a restriction order, a requirement that is mandated by the HRSO Act. The comments made by Dr Wynn Owen in this regard are apt.
While the respondent has been a model subject on the ISO, both experts who assessed him considered that he has outstanding treatment needs that need to be addressed in counselling before one could be satisfied that he has sufficiently broken out of the mould as to be capable of managing his risk of violent reoffending without the structures, constraints and monitoring provided by the ISO.
In my opinion, the evidence of Dr Wynn Owen and Ms Hasson, which I accept, compellingly establishes that the respondent presents a high risk of committing a serious violent offence if he is not subject to a restriction order. I have set out their reasons for so concluding in detail. I am satisfied their reasons are sound.
I am also satisfied on the basis of their evidence, and on my findings in respect of the respondent's propensity for committing violent offences, that the likely offence scenarios if he were to relapse, would be similar to his past offending, and as described by Dr Wynn Owen and Ms Hasson. Such offending has the potential for significant physical harm, even catastrophic harm, to the victim, and enduring significant psychological harm. Serious violent offences can change the lives of victims.
The high risk of serious violent offending the respondent poses is, therefore, unacceptable. In my opinion, there are no measures that can be utilised that would sufficiently protect the community other than a restriction order.
Therefore, I am satisfied 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. It follows that I find that the respondent is a high risk serious offender.
The appropriate restriction order
Having regard to the respondent's compliance with the ISO, the fact that he has not committed any further offence, the apparent sustained changes in his attitudes and behaviours, particularly as described by Ms Casserly in the Update Community Supervision Assessment report, and the opinions of Dr Wynn Owen and Ms Hasson, I am satisfied that the respondent's risk of committing a serious violent offence can be adequately managed in the community. In other words, I am satisfied that a supervision order would provide adequate protection of the community. I am also satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions, and indeed all of the conditions of a supervision order. In my view, his exemplary compliance with the conditions of the ISO leads inexorably to that conclusion.
The conditions of the supervision order Those conditions were substantially in the terms of Appendix A of these reasons.
I bear in mind that I should choose the order that is least invasive or destructive of the respondent's right to liberty, whilst ensuring an adequate degree of protection for the community.
Before I can make a supervision order, I must be satisfied, on the balance of probabilities, that the respondent would substantially comply with the standard conditions of a supervision order and that the totality of the conditions would provide adequate protection of the community against the risk that the respondent would commit a serious offence. The respondent bears the onus of establishing on the balance of probabilities that he would substantially comply with the standard conditions.
The conditions of the supervision order should be no more than is necessary to achieve adequate protection of the community. Had I made the supervision order soon after the hearing in May 2023, I would have been satisfied that all of the conditions that had been proposed by the applicant were appropriate, including the conditions concerning monitoring of the respondent's electronic devices, for the reasons given by Dr Wynn Owen. However, in light of the fact that the conditions of the ISO have been effective in mitigating the respondent's risk of committing a serious violent offence, and would appear to be capable of continuing to be effective in that regard, and having regard to the respondent's exemplary conduct under the ISO, I am now satisfied that the additional conditions are no longer necessary. It is in the interest of the respondent's continued rehabilitation, which will benefit the community by reduction of the respondent's risk, that the conditions imposed be no more onerous than he has endured until now. Further, I am satisfied that it is no longer necessary to have curfew conditions. The respondent's risk management team has properly reduced the curfew over time. Further, he has proven to be trustworthy when allowed to leave Kalgoorlie. I consider that his behaviour on the ISO has demonstrated that the respondent is genuinely committed to leading a prosocial life and is unlikely to engage in antisocial behaviour at night time.
Therefore, I am satisfied that the conditions now proposed by the applicant, as contained in the appendix in these reasons are sufficient to provide adequate protection of the community.
The applicant has not raised any issue in respect of the respondent's current accommodation, so that will be the accommodation specified in the supervision order as where he is to reside. Of course, that will be subject to change if he is to obtain public housing or other suitable accommodation approved by his risk management team.
Duration of order
Determining what period is appropriate for a supervision order is a matter of judgment and may depend on a number of factors relevant to the respondent's risk. In general terms, I consider that the period should be such as to enable the respondent to engage in rehabilitation and progress towards the reduction of his risk of committing a serious offence, to a point where a restriction order is no longer necessary to ensure adequate protection of the community, either because the respondent can be relied upon to manage the risk himself, or the exigency of age or other factors have significantly reduced the likelihood of the respondent reoffending.
Had I been making the order soon after the hearing in May 2023, I would have been satisfied that the appropriate duration would have been 4 years, based on a consideration of the opinions of Dr Wynn Owen and Ms Hasson. However, given the time that the respondent has been on the ISO, and accepting that that period has contributed to his rehabilitation and reduction of risk, notwithstanding that he has not been provided the opportunity to engage in suitable counselling, as recommended by Dr Wynn Owen and Ms Hasson, I consider that the term of the order can now be significantly less, consistent with the paramount consideration of ensuring adequate protection of the community.
Having given the matter careful consideration, I am satisfied that an appropriate period of time is 2 years. That period should enable the Department to provide the respondent with suitable counselling, and for the respondent to engage adequately to enable an assessment to be made in the second year of the order whether his risk is approaching the point where he can self‑manage, or whether a further supervision order should be sought. Under s 36 of the HRSO Act, the State may apply for a restriction order in relation to an offender who is subject to a supervision order that is to expire within one year. Therefore, the State may apply for a further supervision order if, approaching the end of the supervision order I make, there is evidence that the respondent's risk is still at a level where there is a need for a further period of restriction to ensure adequate protection of the community.
However, I would expect that the respondent will continue on his trajectory of rehabilitation to a point where he will no longer require the scaffolding of a supervision order to support him and to provide adequate protection of the community.
Commencement date
Section 27(3) of the HRSO Act provides that the date from which a supervision order has effect must not be earlier than 21 days after the date the order is made, unless the court is satisfied that the implementation of the order from an earlier date is practically feasible.
However, the measures necessary to prepare for a person's release on a supervision order are largely in place, because the respondent has been, and is, on an ISO. Nevertheless, prior to the handing down of these reasons, the applicant informed the court that the Department has requested that the commencement date of any supervision order be two days hence, being 9 January 2025. Accordingly, that will be the commencement date.
Orders
For the reasons above, I make a supervision order in respect of the respondent for a period of 2 years commencing on 9 January 2025, on the conditions contained in the appendix to these reasons.
The ISO will be rescinded from the commencement of the supervision order.
Annexure A
IN THE SUPREME COURT OF WESTERN AUSTRALIA
SO 15 of 2022
IN THE MATTER of the High Risk Serious Offenders Act 2020
THE STATE OF WESTERN AUSTRALIA Applicant
-and-
STEVEN LLOYD HANSEN Respondent
_________________________________________________________________________
SUPERVISION ORDER MADE BY THE HON JUSTICE FIANNACA
ON 7 JANUARY 2025
_________________________________________________________________________
Pursuant to section 48(1)(b) of the High Risk Serious Offenders Act 2020 (WA), the Court, having found that the Respondent is a high risk serious offender within the meaning of section 7(1) of the High Risk Serious Offenders Act 2020 (WA), makes a supervision order in relation to the Respondent, for a period of 2 years from 9 January 2025, on the following conditions:
You, STEVEN LLOYD HANSEN, must:
STANDARD CONDITIONS REQUIRED BY THE HRSO ACT
Report to a Community Corrections Officer (CCO) at the location they direct and time they direct on the day of commencement of this order and advise the officer of your current name and address;
Report to and receive visits from, a CCO as directed by the Court;
Notify a CCO of every change of your name, place of residence, or place of employment at least 2 business days before the change happens;
Be under the supervision of a CCO, which includes, comply with any reasonable direction of the officer (including direction for the purposes of section 31 or 32);
Not leave, or stay out of the State of Western Australia without the permission of a CCO;
Not commit a serious offence during the period of the Order;
Be subject to electronic monitoring under section 31;
ADDITIONAL CONDITIONS
Residence
Take up residence at [redacted] and spend each night at that address or at a different address only if such different address is approved in advance by a CCO assigned to you;
Attendance at programs or treatment
Attend all appointments and receive visits from any medical practitioner, psychiatrist, psychologist, social worker, counsellor, support service and/or support person as directed by a CCO;
Reporting to WA Police
Report to the Officer-in-Charge of the Kalgoorlie Police Station within 48 hours of commencement of this order, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the High Risk Serious Offender team/Serious Offender Enforcement Squad or his/her delegate;
If requested, permit Police Officers to enter and search your residence and/or vehicle and search your person for the purpose of monitoring your compliance with your obligations under this Order and allow the seizure of any such items that the Police Officers believe to contravene the conditions of the Order;
Remain at your premises and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the provisions of the High Risk Serious Offenders Act 2020;
Disclosure/Exchange of Information
Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information;
Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any of your associates, potential associates, partners or potential partners and, where appropriate to disclose to them confidential information including your offence history;
Restrictions on contact with Victims
Have no contact, directly or indirectly, with the victims of your violent offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-offender Mediation Unit of the Department of Justice, or in a manner approved of in advance by the CCO;
Report to the CCO and WA Police any direct or indirect contact with the victims of your violent offending within 48 hours of such contact occurring;
Prevention of high-risk situations
Not purchase, or possess, or consume or use alcohol unless approved in advance by a CCO;
Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place;
Provide a valid sample for the purposes of Condition 18;
Not remain in the presence of any person who you know, or ought to know, to be affected by prohibited drugs, unless the identity of such person is approved in advance by the CCO;
Not remain in any place where prohibited drugs are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place;
Not to be in possession of any offensive or prohibited weapon, replica weapon or dangerous article.
_______________________________
THE HON JUSTICE FIANNACA
I have received a copy of this Order. I have had it explained to me and understand the effect of this Order and what may happen if I contravene it.
Signed by the Respondent _________________________________
STEVEN LLOYD HANSEN
In the presence of: _________________________________
Name and address: _________________________________
_________________________________
Date: _________________________________
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
GP
Associate to the Hon Justice Fiannaca
20 JANUARY 2025
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