The State of Western Australia v Hill [No 2]

[2024] WASC 70

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- HILL [No 2] [2024] WASC 70

CORAM:   DERRICK J

HEARD:   19 & 24 JANUARY 2024, 13 FEBRUARY 2024 & 7 MARCH 2024

DELIVERED          :   15 MARCH 2024

FILE NO/S:   SO 7 of 2023

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

MARK CHARLES HILL

Respondent

Catchwords:

Criminal law - High Risk Serious Offenders Act 2020 (WA) - Restriction order application - Whether restriction order should be made - Whether a continuing detention order or supervision order appropriate

Legislation:

Criminal Code (WA)
Dangerous Sexual Offenders Act 2006 (WA)
High Risk Serious Offenders Act 2020 (WA)
Sentence Administration Act 2003 (WA)

Result:

Continuing detention order made

Category:    B

Representation:

Counsel:

Applicant	:	T Hollaway
Respondent	:	S A Auburn & T Hager

Solicitors:

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

Case(s) referred to in decision(s):

Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212

Director of Public Prosecutions (WA) v Decke [2009] WASC 312

Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307

Director of Public Prosecutions (WA) v Hart [2019] WASC 4

Director of Public Prosecutions for Western Australia v Williams [2007] WASCA 206; (2007) 35 WAR 297

Garlett v The State of Western Australia [2022] HCA 30; (2022) 96 ALJR 888

GBT v The State of Western Australia [2019] WASCA 40

Italiano v The State of Western Australia [2009] WASCA 116

The State of Western Australia v ACJ [2021] WASC 219

The State of Western Australia v BC [2021] WASC 164

The State of Western Australia v Corbett [No 5] [2017] WASC 115

The State of Western Australia v D'Rozario [No 3] [2021] WASC 412

The State of Western Australia v Hill [2014] WASCSR 52

The State of Western Australia v Hill [2023] WASC 284

The State of Western Australia v Latimer [2006] WASC 235

The State of Western Australia v Narkle [2019] WASC 404

The State of Western Australia v Newland [2018] WASC 344

The State of Western Australia v Patrick [No 4] [2020] WASC 48

The State of Western Australia v Patrick [No 5] [2022] WASC 61

The State of Western Australia v West [No 6] [2019] WASC 427

The State of Western Australia v ZSJ [2020] WASC 330

DERRICK J:

Introduction

1. The applicant applies for a restriction order to be made in relation to the respondent pursuant to s 48(1) of the High Risk Serious Offenders Act 2020 (WA) (Act).

2. For the reasons set out below, I have decided that the respondent is a high risk serious offender and that a restriction order, specifically a continuing detention order, should be made in relation to the respondent.

Background to the hearing of the restriction order application

1. In 2014 the respondent was convicted after trial of one offence of manslaughter contrary to s 280 of the Criminal Code (WA) (Code). On 28 March 2014 he was sentenced to 11 years imprisonment for the offence. He was made eligible for release on parole. The commencement date of the sentence was backdated to 2 August 2012.

2. On 13 July 2021 the Prisoners Review Board (PRB) denied the offender's release on parole.

3. On 29 June 2023 the PRB made a post-sentence supervision order in respect of the respondent under s 74D of the Sentence Administration Act 2003 (WA) (PSSO). The specified commencement date of the PSSO is 1 August 2023, this being the expiry date of the sentence imposed for the manslaughter offence. The specified expiry date of the PSSO is 31 January 2025.

4. On 6 July 2023 the applicant made an application for the following orders to be made in relation to the respondent:

   1.A restriction order under s 48(1) of the Act (the application for this order being made pursuant to s 35(1) of the Act);[1]

   2.Orders pursuant to s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the Act; and

   3.An order that until the conclusion of the hearing and judgment on the application for a restriction order the respondent be detained in custody pursuant to s 46(2)(c)(i) of the Act, alternatively be released on an interim supervision order pursuant to s 58(5) of the Act subject to the conditions in s 30(2) of the Act and such other conditions as considered appropriate by the court.

   [1] The respondent is an 'offender' for the purposes of the Act and at the time of the application made on 6 July 2023 was 'a serious offender under custodial sentence who is not a serious offender under restriction' within the meaning of s 35(1) of the Act:  see the definition of 'offender' in s 3 of the Act, par (b) of the definition of 'serious offender under custodial sentence' in s 3 of the Act and the definition of 'serious offender under restriction' in s 3 of the Act.

5. On 28 July 2023 the hearing of the application for the orders pursuant to s 46(2) of the Act, the preliminary hearing, took place before Quinlan CJ. His Honour found that there were reasonable grounds for believing that the court might find that the respondent is a high risk serious offender[2] and therefore made orders as sought by the applicant under s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the Act.[3] His Honour made an interim detention order pursuant to s 46(2)(c)(i) of the Act. His Honour fixed 19 January 2024 for the hearing of the application for the restriction order under s 48(1) of the Act (application).

   [2] Act, s 46(1).

   [3] The State of Western Australia v Hill [2023] WASC 284.

6. I heard the application on 19 and 24 January 2024, 13 February 2024 and 7 March 2024.  Part of the explanation for the hearing occurring on four dates over an approximate three month period is that there was a need for evidence to be put before me in relation to places that the respondent argued would be suitable for him to live in under the conditions of a supervision order.

Evidence on the application

1. At the hearing of the application the applicant tendered pursuant to s 84(5) of the Act a Book of Materials comprising four volumes, volumes 1, 2 and 3 being dated 27 October 2023 and volume 4 being dated 5 January 2024.[4]

   [4] Exhibit 1.

2. Volumes 1 - 3 of the Book of Materials contain a variety of materials relating to the respondent including his criminal record, his prison records, his medical records, documents relating to his prior offences, and psychological and other reports. 

3. Volume 4 of the Book of Materials contains a number of reports prepared specifically for the purposes of the application as well as a number of other documents.  The reports and documents include the following:

   1.A report prepared by Professor Natalie Pyszora, Consultant Forensic Psychiatrist, dated 6 December 2023;[5]

   2.A High Risk Serious Offender Psychological Report prepared by Dr Tara Yewers, Counselling Psychologist, dated 8 December 2023;[6]

   3.A Proposed High Risk Serious Offender Treatment Options Report prepared by Ms Emma Cashmore, a High Risk Serious Offender Planning Manager employed by the Department of Justice (Department), dated 14 December 2023;[7]

   4.A Community Supervision Assessment Report prepared by Ms Katrina Czechowski, a Senior Community Corrections Officer (CCO) within the Department's Community Offender Monitoring Unit (COMU), dated 27 December 2023;[8] and

   5.A Victim Submission dated 20 December 2023 prepared pursuant to s 60 of the Act.[9]

   [5] Exhibit 1, vol 4, 1643.  Professor Psyzora is a 'qualified expert' as defined in s 3 of the Act.  Her report was prepared and obtained pursuant to s 46(2)(a) of the Act and in accordance with s 74 of the Act.

   [6] Exhibit 1, vol 4, 1705.  Dr Yewers is a 'qualified expert' defined in s 3 of the Act.  Her report was prepared and obtained pursuant to s 46(2)(a) of the Act and in accordance with s 74 of the Act.

   [7] Exhibit 1, vol 4, 1639.

   [8] Exhibit 1, vol 4, 1745.

   [9] Exhibit 1, vol 4, 1614.

4. The applicant also tendered, without objection and again pursuant to s 84(5) of the Act, the following:

   1.An email sent by Ms Aimee Goode, a Team Leader within the COMU, to the applicant's solicitor dated 17 January 2024;[10]

   2.An email sent by Ms Goode to the applicant's solicitor dated 23 January 2024;[11]

   3.An Update Community Supervision Assessment Report prepared by Ms Czechowski dated 7 February 2024;[12]

   4.A further Update Community Supervision Assessment Report prepared by Ms Czechowski dated 26 February 2024;[13]

   5.A letter from the proprietor of the Tate Street Lodge addressed to 'To Whom it May Concern' dated 13 February 2024;[14]

   6.An undated three page document headed 'Tate Street Lodge Terms and Conditions and Charges' (Tate Street Lodge Conditions);[15]

   7.An email sent by Ms Goode to the applicant's solicitor dated 6 March 2024;[16] and

   8.A Community Business Information System file note prepared by Ms Czechowski dated 16 October 2023 (CBIS file note).[17]

   [10] Exhibit 2.

   [11] Exhibit 3.

   [12] Exhibit 4.  Exhibit 4 was provided to the court and received as an exhibit on 7 February 2024 pursuant to orders made by the court with the agreement of the parties at the end of the hearing on 24 January 2024.  By the orders the parties were given leave to file written submissions in relation to exhibit 4 within two days of the receipt of the exhibit by the court.  Further, it was made clear to the parties at the hearing on 24 January 2024 that if either of them wished to make oral submissions in relation to the exhibit they would be permitted to do so.  The State filed supplementary written submissions in relation to the exhibit dated 8 February 2024.  The respondent elected not to do so. 

   [13] Exhibit 5.

   [14] Exhibit 6.

   [15] Exhibit 7.

   [16] Exhibit 8.

   [17] Exhibit 9.

5. The respondent elected to give evidence on the application.  He also elected to adduce evidence on the application by calling as a witness an associate, JM. 

Relevant statutory provisions and applicable legal principles

1. I turn now to dealing in more detail with the provisions of the Act by reference to which the application must be determined and the legal principles that are applicable to the determination of the application.

2. In relation to the applicable legal principles, in The State of Western Australia v ZSJ,[18] a case in which the State made an application under div 2 of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) but which, given the repeal of the DSO Act, fell to be decided under the provisions of the Act, Fiannaca J made the following observations (citations omitted):

   As will emerge from the outline below of the statutory framework under the DSO Act and [the Act], the concepts and criteria with which the court is concerned in determining an application of this kind are substantially the same under both statutes.  Although I have reached that view on the basis of the ordinary meaning of the provisions of both statutes, having regard to the context of the provisions within the statutes and the objects underlying the statutes, the construction is confirmed, in my opinion, by the second reading speech made to the Legislative Assembly in respect of the High Risk Offenders Bill 2019 by the Honourable Attorney General.  The Attorney informed the House that the bill was intended to 'extend the Supreme Court's ability to make a continuing detention order or supervision order to serious violent offenders in the same manner as the provisions contained in the [DSO Act]'.  He went on to say:

   'In doing so, this bill fully preserves the provisions that apply in respect of dangerous sexual offenders in the [DSO Act].'

   Whether or not that has been achieved remains to be seen upon analysis of the provisions.  However, in my opinion, as the concepts and criteria in both statutes are substantially the same, the jurisprudence established in respect of the DSO Act remains relevant in construing and applying [the Act], with appropriate adaptation in cases involving non-sexual offences.

   [18] The State of Western Australia v ZSJ [2020] WASC 330 [30] - [31].

3. I respectfully agree with Fiannaca J's observations.  In my opinion and having full regard to the decision of the High Court in Garlett v The State of Western Australia[19] which addressed the constitutional validity of aspects of the Act, much of the case law decided under the DSO Act in relation to applications made under div 2 of the DSO Act remains (with appropriate adaptation in cases involving non-sexual offences) relevant to the determination of applications for restriction orders under the Act. Accordingly, the cases to which I will refer in dealing with the legal principles applicable to the determination of the application will include cases that have been concerned with proceedings under the DSO Act.

   [19] Garlett v The State of Western Australia [2022] HCA 30; (2022) 96 ALJR 888.

4. Section 48 of the Act provides:

   Restriction orders

   (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

5. The definition of the term 'high risk serious offender' is contained in s 7(1) of the Act.  Section 7(1) is in the following terms:

   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

6. The term 'restriction order' is defined in s 3 of the Act to mean 'a continuing detention order' or 'a supervision order'.  A 'continuing detention order' is 'an order that the offender be detained in custody for an indefinite term for control, care or treatment'.[20]  A 'supervision order' is 'an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate in accordance with s 30'.[21]

   [20] Act, s 3 and s 26(1).

   [21] Act, s 3 and s 27(1).

7. As to the term 'serious offence' used in s 7(1), s 3 and s 5(1) of the Act provide that a 'serious offence' is an offence that 'is specified in Schedule 1 Division 1 of the Act', or 'is specified in Schedule 1 Division 2 and is committed in the circumstances indicated in relation to that offence in that Division'. Section 3 and s 5(2) provide that an offence is a 'serious offence' if it was an offence under a written law that has been repealed and the offender's acts or omissions that constituted the offence under the repealed provision would constitute a serious offence under s 5(1). Offences that were 'serious sexual offences' under the DSO Act come within the definition of a 'serious offence' under the Act because they are offences that are specified in sch 1 div 1 of the Act.[22]

   [22] Any further references to a 'serious offence' or to 'serious offences' should be read as references to a serious offence or serious offences as defined in the Act.

8. It follows from the definition of 'high risk serious offender' contained in s 7(1) that a finding under s 48(1) that an offender 'is a high risk serious offender', that is, a finding 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, necessarily entails a finding that if the offender is not subject to a restriction order the community will not be adequately protected against an unacceptable risk that the offender will commit a serious offence.[23]

   [23] The State of Western Australia v West[No 6] [2019] WASC 427 [21]; The State of Western Australia v ZSJ [44].

9. If the court finds that an offender is a high risk serious offender it is not invested with a residual discretion to decline to make a restriction order.[24]   In these circumstances the question for the court is whether a continuing detention order or a supervision order should be made.[25]

   [24] Garlett v The State of Western Australia [72].

   [25] Act, s 48(1).

10. By reason of the definition of 'high risk serious offender' contained in s 7(1), before the court can find under s 48(1) that the offender is a high risk serious offender, it must be satisfied of the matters referred to in s 7(1) 'by acceptable and cogent evidence and to a high degree of probability'. The 'high degree of probability' standard is a higher standard than the standard of the balance of probabilities but is a lesser standard than the standard of beyond reasonable doubt. The standard is otherwise incapable of further definition.[26]

    [26] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307, 28; The State of Western Australia v West [No 6] [24]; The State of Western Australia v ZSJ [47].

11. The requirement is not that the risk that the offender will commit a serious offence must be at some high percentage of probability.  A risk that the offender will commit a serious offence may be less than 50% yet still be an unacceptable risk.[27]  It is the necessity 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 that must be proved by acceptable and cogent evidence and to a high degree of probability. 

    [27] The State of Western Australia v West [No 6] [24]; The State of Western Australia v ZSJ [47].

12. Whether or not a risk that the offender will commit a serious offence is 'unacceptable' is a question that requires the court's judgment as to the likelihood of the offender committing the serious offence and the nature and extent of the harm that will be caused if the offender commits the serious offence.[28]  Further, whether a restriction order is 'necessary' to ensure adequate protection of the community against the 'unacceptable risk' requires consideration of what would otherwise be the offender's entitlement to be at liberty, an entitlement not lightly to be denied.[29]    Accordingly, the court is required to perform an evaluative exercise by considering whether, having regard to the likelihood of the offender offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the offender has already been punished for the offences they have committed, it is necessary in the interests of the community to ensure that they are subject to further control or detention.[30]  In addition, although the requirement of an evaluation under s 7(1) depends upon the offender having been convicted of a serious offence, s 7(1) and s 48 do not envisage the possibility that a finding that an offender remains a high risk serious offender might be made to prevent the commission of a serious offence, whether of the same kind or another kind, unless the risk of further offending involves a real threat of harm to the community.[31]

    [28] Italiano v The State of Western Australia [2009] WASCA 116 [46]; The State of Western Australia v Newland [2018] WASC 344[17]; GBT v The State of Western Australia [2019] WASCA 40[21]; The State of Western Australia v West [No 6] [22]; The State of Western Australia v ZSJ [45]; Garlett v The State of Western Australia [73], [226].

    [29] Garlett v The State of Western Australia [73], [227]. As Quinlan CJ recognised in The State of Western Australia v D'Rozario [No 3] [2021] WASC 412 [21] there may be rare situations in which a court will find that it is not necessary to make a restriction order notwithstanding a finding that the offender poses an 'unacceptable risk', for example, where other external restraints (such as a post-sentence supervision order under the Sentence Administration Act) are sufficient to ensure adequate protection of the community from the risk.

    [30] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63]; GBT v The State of Western Australia [21]; The State of Western Australia v West [No 6] [22]; The State of Western Australia v ZSJ [45]; Garlett v The State of Western Australia [73], [226] - [227], [279]

    [31] Garlett v The State of Western Australia [84].

1. By reason of s 48(2), if the court finds that the offender is a high risk serious offender it is the need to ensure 'adequate' protection of the community that is to be the paramount consideration for the court in deciding whether to make a continuing detention order or a supervision order in relation to the offender.  The use of the word 'adequate' indicates that a qualitative assessment is required.  It cannot be assumed that the most preventative action is detention and that therefore the protection of the community will always favour such an order.[32]  In this regard I respectfully adopt the following statements of Beech J (as his Honour then was) in Director of Public Prosecutions (WA) v DAL [No 2] which, although made in relation to review proceedings under the DSO Act, are equally applicable to the operation of s 7(1) and s 48(2) of the Act:[33]

   In choosing between an indefinite detention order or a supervision order, the fact that the paramount consideration is the need to ensure the adequate protection of the community does not exclude other considerations.  The use of the word 'adequate' indicates that a qualitative assessment is required.  In considering whether a supervision order would adequately protect the community, account must be taken of conditions which can be placed on a supervision order so as to ensure the adequate protection of the community, the rehabilitation of the respondent and his care and treatment.  The [DSO Act] does not require that there be no risk of reoffending.  Such a requirement could never be met and would mean no person to whom the [DSO Act] applies would ever be released.  The question is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community.  That requires a weighing of the nature and degree of risk in the context of methods for the management and reduction of that risk.  If, after considering all the evidence, the court is left in doubt as to whether the conditions of a supervision order would adequately protect the community, because the paramount consideration is the need to ensure the adequate protection of the community, the court must expressly decline to rescind the continuing detention order.

   [32] Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14]; The State of Western Australia v Newland [21]; The State of Western Australia v West [No 6] [26]; The State of Western Australia v ZSJ [51]; Garlett v The State of Western Australia [106].

   [33] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33]. Also adopted in The State of Western Australia v Narkle [2019] WASC 404 [13] and The State of Western Australia v West [No 6] [26].

2. The scheme of the Act requires that the court do no more than is necessary to achieve an adequate degree of protection of the community.[34]

   [34] The State of Western Australia v Latimer [2006] WASC 235 [24]; The State of Western Australia v Patrick [No 5] [2022] WASC 61 [56]; Garlett v The State of Western Australia [85], [229] - [230].

3. Section 7(2) of the Act provides that the State 'has the onus of satisfying the court as required by subsection (1)'.

4. Section 7(3) of the Act specifies the matters that the court must have regard to in deciding if an offender is a high risk serious offender for the purposes of s 7(1).  The matters specified are substantially identical to the matters that the court was, by s 7(3) of the DSO Act, required to have regard to in deciding whether a person was a 'serious danger to the community' within the meaning of the DSO Act.  The matters are as follows:

   (a)any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section;

   (b)any other medical, psychiatric, psychological, or other assessment relating to the offender;

   (c)information indicating whether or not the offender has a propensity to commit serious offences in the future;

   (d)whether or not there is any pattern of offending behaviour by the offender;

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

   (f)whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;

   (g)the offender's antecedents and criminal record;

   (h)the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;

   (i)the need to protect members of the community from that risk;

   (j)any other relevant matter.

5. Although s 7(3)(g) provides that a court must have regard to the offender's criminal record in deciding whether the person is a high risk serious offender, the mere fact that a person has committed previous offences does not necessarily mean that there is an unacceptable risk that they will commit a serious offence in the future if they are not subject to a continuing detention order or a supervision order.  The relevance of a prior criminal record depends on the nature of the offences committed, the number of them and the period of time over which they have been committed.  Nonetheless, past behaviour is often a good indicator of future conduct.

6. By s 48(1)(b) of the Act, the power of the court to make a supervision order is subject to s 29. Section 29 relevantly provides:

   Limitation on power to make or amend supervision order

   (1)A court cannot make, affirm or amend a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made, affirmed or amended.

   (2)The onus of proof as to the matter described in subsection (1) is on the offender.

   (3)…

7. The term 'standard conditions' in relation to a supervision order is defined in s 3 of the Act to mean a condition that under s 30(2) of the Act must be included in the order.  Section 30(2) of the Act specifies seven conditions that must be included in any supervision order.

8. Therefore, the effect of s 29(1) and s 29(2) of the Act is that the offender must satisfy the court on the balance of probabilities that they will substantially comply with the standard conditions set out in s 30(2) of the Act before the court can make a supervision order in relation to them.[35] 

   [35] Garlett v The State of Western Australia [103], [231].

9. For the court to be satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions of the supervision order, it must be satisfied that the offender will comply with the standard conditions in a manner and to an extent that will ensure adequate protection of the community from the unacceptable risk of the offender committing a serious offence.[36]  Further, in determining if it is satisfied that the offender will substantially comply with each standard condition of the supervision order, the court must have regard not only to the constraints that will be imposed upon the offender by the other standard conditions, but also to the constraints that will be imposed upon the offender by all the other 'non-standard' conditions of the supervision order.[37]

   [36] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52]; The State of Western Australia v West [No 6] [29]; The State of Western Australia v ZSJ [56] - [58]; The State of Western Australia v Patrick [No 4] [2020] WASC 48 [109] ‑ [111].

   [37] The State of Western Australia v ACJ [2021] WASC 219 [416]; Garlett v The State of Western Australia [103] - [104], [233].

Matters specified in s 7(3) of the Act

1. As I have indicated, in deciding if the respondent is a high risk serious offender I must have regard to the matters specified in s 7(3) of the Act.  I therefore turn to addressing the matters specified in s 7(3) of the Act.

The respondent's history of offending - s 7(3)(g)

1. The respondent has been convicted of three serious offences within the meaning of the Act, specifically one offence of stalking contrary to s 338E(1)(b) of the Code, one offence of aggravated stalking contrary to s 338E(1)(a) of the Code and the previously referred to offence of manslaughter.

2. In addition to the three serious offences the respondent has, as an adult, been convicted of a significant number of other offences including the following: aggravated assault occasioning bodily harm; offensive and disorderly conduct on an aircraft; criminal damage; multiple offences of breaching violence restraining orders (VRO); multiple offences of obstructing public officers; and burglary or attempted burglary.  The respondent has also been convicted of numerous driving related offences.

3. A summary of the facts of the respondent's serious offences and his other adult offences that are relevant to the determination of the application are as follows.

Breach VRO - October 2004

1. The victim was the respondent's brother who had obtained a VRO against the respondent.

2. On 3 October 2004 the respondent, while subject to the VRO, telephoned his brother and said, 'You'll be dead soon c**t.'

3. On 26 November 2004 the respondent was fined for the offence.

Stalking - April 2006 (serious offence)

1. The victim was a female known to the respondent.

2. On 19 April 2006 the respondent called the victim's mobile phone and left several highly racially abusive and threatening voice messages. Later on the same day the respondent attended the victim's address and entered the address without the victim's consent via an unlocked rear door. Once inside the house the respondent wrote racially abusive and threatening messages on a kitchen table, on an envelope and on a piece of carboard.  He also engaged in what the sentencing magistrate described as 'bizarre' and 'scary' behaviour including, for example, taking meat out of the victim's fridge.

3. On 25 May 2006 the respondent was sentenced to a 12-month community based order for the offence (which he later breached by reoffending).

Breach VRO - April 2008

1. The victim was the respondent's father who had obtained a VRO against the respondent.

2. On 27 April 2008 the respondent, while subject to the VRO, telephoned his father demanding the repayment of money that he claimed that his father owed him.

3. On 13 August 2008 the respondent was fined for the offence.

Offensive and disorderly behaviour on aircraft - June 2008

1. On 20 June 2008 the respondent was on a flight from Melbourne to Perth in the company of his female partner AB.  The respondent was 50 years old and AB was 59 years old (or thereabouts).

2. The respondent had been drinking alcohol prior to boarding the aircraft and was told by the crew that he would not be served any further alcohol.  On being told this the respondent became aggressive, abusive and threatening towards AB.  When the crew offered to move AB while the respondent was in the toilet AB refused the offer out of fear of reprisals from the respondent.  The respondent continued to abuse AB for most of the flight.

3. On 4 August 2008 the respondent was fined $1200 for the offence.

Breach VRO - July 2008

1. On 29 July 2008 the respondent, while subject to the VRO obtained against him by his father, telephoned his father three times over a five minute period.  During the phone calls the respondent threatened to find, assault and kill his father.

2. On 27 March 2009 the respondent was fined for the offence.

Aggravated assault occasioning bodily harm - August 2010

1. The victim was AB who at the time was 61 years old.  The respondent was 53 years old.

2. On 22 August 2010 the respondent returned from a party intoxicated.  He became angry with AB for getting out of bed after he had got into bed.  He grabbed AB's upper arms and pushed her over causing her to fall and hit the right side of her head and face and her right shoulder.  He grabbed AB by the front of her shirt, picked her up and threw her towards a door.  He approached AB while she was lying on the floor and proceeded to kick her in the stomach and to punch her in the head, face and neck.  He sat on top of AB while placing his left hand around her throat and telling her that she was 'just going to die a slow death' and that she was going to 'choke on [her] own blood'.

3. As a result of the respondent's attack AB suffered two fractures to her right eye socket, a fractured right collarbone, abrasions to the bridge of her nose, facial bruising, and bruising to her neck and upper body.

4. On 9 November 2010 the respondent was placed on a pre-sentence order for the offence by which he was required to return to court for sentencing on 3 May 2011.

5. On 3 May 2011 the respondent was sentenced to an 8-month conditional release order for the offence (which he subsequently breached by committing a number of breach VRO offences). 

Breach VRO - March 2011 - June 2011

1. The victims of the offences were AB and AB's daughter.

2. After the commission by the respondent of the aggravated assault occasioning bodily harm offence AB obtained a VRO against the respondent.  The VRO was served on the respondent on 24 August 2010.

3. During the period 3 March 2011 - 28 June 2011 the respondent on 43 separate occasions contravened the VRO.  The contraventions were constituted by the respondent making phone calls to AB during which he referred to getting back together with AB.  On occasions the respondent would make abusive and derogatory statements about AB's daughter.  AB did not answer a large number of the phone calls with the result that the respondent left messages.

4. In May 2011 AB's daughter obtained a VRO against the respondent.  The VRO was served on the respondent on 27 May 2011. 

5. In June 2011 the respondent on two separate occasions sent letters to a friend of AB's daughter in breach of the VRO that had been obtained against him by AB's daughter.  The respondent sent the letters from prison.  In the letters the respondent made derogatory remarks about AB's daughter and requested that his remarks be passed onto AB's daughter.

6. On 8 July 2011 the respondent was sentenced to a total of 12 months imprisonment for the offences.

Aggravated stalking - July 2012 (serious offence)

1. Once again, the victim was AB.

2. On 7 June 2012 the respondent was released from prison after serving the sentence imposed on him for the 45 breach VRO offences.

3. On 13 July 2012 the respondent used another person's phone to call AB on six separate occasions.  The respondent left a series of voice messages that left AB feeling scared and concerned for her safety.

4. On 7 May 2014 the respondent was sentenced to 6 months imprisonment for the offence to be served concurrently with the sentence that had already been imposed on him for his manslaughter offence (referred to below).

Manslaughter - August 2012 (serious offence)

1. The respondent had known the 60-year-old female victim for a number of years. The victim was a former partner of the respondent (not AB).

2. The victim had previously obtained a VRO against the respondent due to the number of threats and abusive phone calls that the respondent had made to her. The VRO took effect on 23 July 2010 and was for a period of 2 years.

3. As already indicated, on 7 June 2012 the respondent was released from prison.  Shortly after his release the respondent contacted the victim. The VRO was still in force at the time of the contact. Nonetheless, the victim was content to re-establish contact with the respondent.  Indeed, in the weeks prior to the offence the victim and the respondent had resumed their relationship.

4. In the early morning hours of 1 August 2012 the respondent attended the victim's property, entered the living area and assaulted her. The offender struck the victim multiple times to her head, face, neck, ribs and back.  As a result the victim suffered the following injuries: bruising to the left and right side of her head; bruising over the left jaw with areas of lineal blanching and underlying bruising extending to her neck, throat and tongue near the hyoid bone; bruising and swelling around the mouth; bruising and swelling of the preorbital area on the right, extending to the nasal bridge and lateral aspect of the right upper nose; bruising and swelling of the inner aspect of the left eyelids; bruising of the right upper arm consistent with finger pad bruising; abrasions and bruising on the left and right arm; bruising in the middle aspect of the left side of the back and a smaller area of bruising over the right mid-lower flank; bruising to the middle aspect of the left side of the abdomen and the groin area and a left side fracture of the ninth rib; bruising to the inner aspect of the chest between the fourth and fifth ribs; bruising on the under surface of the scalp; bruising on the left and right sides of the back of the scalp; a traumatic vertebral column area injury consistent with sudden rotational injury of the spine; and a concussive head injury.

5. After assaulting the victim the respondent left her property. 

6. Due to the concussive head injury the victim was unconscious for an indeterminate period of time.  She died three hours after the assault.

7. As I have already indicated, on 28 March 2014 the respondent was sentenced to 11 years imprisonment for the offence.

8. Although the respondent's assault of the victim was the substantial cause of her death, the sentencing judge was not able to determine the mechanism by which the victim died. The sentencing judge did, however, find that the victim was alive when the respondent left her house, that he did not assist the victim or attempt to obtain medical assistance for her, and that his failure to do so was a factor that aggravated the seriousness of the offence.[38]

   [38] The State of Western Australia v Hill [2014] WASCSR 52 [35] - [36]; Exhibit 1, vol 3, 1389.

9. The sentencing judge also found that the respondent posed a significant risk of future offending, particularly against older vulnerable women and that he had poor prospects of rehabilitation.[39]

The respondent's personal circumstances and antecedents - s 7(3)(g)[40]

[39] The State of Western Australia v Hill [2014] WASCSR 52 [54]; Exhibit 1, vol 3, 1392.

[40] Psychiatric report (exhibit 1, vol 4, 1652 - 1666); Psychological report (exhibit 1, vol 4, 1707 - 1715).

1. The respondent is 66 years old.

2. The respondent was born in Sydney, New South Wales.  He is the eldest of three children born to his parents. When he was 3 years old his family moved to Esperance.

3. The respondent's parents separated when he was 18 years old.His mother died in 2015.  His father died in 2019.

4. The respondent has had minimal contact with his brother for many years.  In 2010 the respondent's brother obtained a VRO in respect of him for a period of two years.

5. The respondent does not have any contact with his sister.  In early 2023 the respondent's sister obtained a VRO in respect of him which is due to expire in 2025.

6. The respondent reports an unremarkable and happy childhood.

7. The respondent left school after year 10 to undertake a cabinet maker apprenticeship at a local joinery business.  However, the business failed before the respondent could finish his apprenticeship and as a result he commenced working as a truck driver.  He worked as a long distance truck driver until he lost his licence in around 2000 for drink driving offences.

8. Since 2000 and when in the community the respondent has received Centrelink payments.  He has also engaged in buying unregistered buses and converting them into mobile homes for sale.

9. The respondent married in 1988 at the age of 30. The marriage broke down after approximately five years. There were no children from this union.

10. While he was married the respondent met the victim of the manslaughter offence. She was also married and a long-distance truck driver. They began an 'on and off' relationship during which they spent periods together interspersed by long periods when they did not see each other or communicate.

1. During the gaps in his relationship with the victim of the manslaughter offence, the respondent was in a relationship with AB.  The relationship ended following the respondent's commission of the aggravated assault occasioning bodily harm offence.

2. The respondent has a history of excessive alcohol use and severe alcohol dependency.  He has often blamed his alcohol intoxication for his offending behaviour stating that if he had not been intoxicated he would not have engaged in the behaviour.  However, for many years he has made no sustained efforts to cease his alcohol use or to address his dependency.

3. The respondent has minimal supports in the community.  He has reported that he does not need anyone for support or friendship and prefers his own company.

4. In 2009 the respondent suffered a head injury requiring neurosurgery to remove a subdural haematoma.  No residual signs or symptoms were reported following the surgery.

5. The respondent has significant medical problems including chronic kidney disease which requires self-administered peritoneal dialysis, hypertension, ischaemic heart disease, hypertrophic cardiomyopathy and fatty liver.  He also has chronic back pain.

6. The respondent is on a raft of medications for his various conditions.  He is required to self-administer dialysis on a daily basis.

7. The respondent has a history of reported depression.  He is prescribed antidepressant medication.

8. The respondent is currently compliant with his medication regime.

9. The respondent currently resides in self-care in a single cell in a unit of Casuarina Prison next to the prison infirmary.

10. If the respondent is found to be a high risk serious offender but is released into the community on a supervision order he intends to live either with his associate JM in a house that is leased by JM (proposed address), or in standalone four bedroom house owned and operated by the proprietor of the Tate Street Lodge (Lodge property).  His preference is to live with JM at the proposed address.  He met JM in prison. 

Efforts by offender to address causes of offending behaviour including participation in rehabilitation programmes and effect on respondent of participation - s 7(3)(e) and s 7(3)(f)

1. The respondent's participation in programmes and the effect on him of his participation was summarised by Quinlan CJ in The State of Western Australia v Hill[41] in the following terms which I respectfully adopt:

   Following [the aggravated assault occasioning bodily harm offence], Mr Hill completed the Families Without Fear program in 2011. He apparently participated well in sessions but was observed minimising, denying and justifying his account of the incident, which demonstrated a lack of insight into the consequences of his violence for his partner.

   …

   During Mr Hill's current term of imprisonment, he completed the Think First, Pathways and Stopping Family Violence programs. He attended the sessions in each program but continued to make limited gains, deny responsibility and minimise his offending. He was enrolled in the Medium Intensity Program to further address his treatment needs, problem solving and perspective taking. He attended sixteen and a half out of 20 registered sessions of the 53 sessions before withdrawing due to medical issues. …

   Of note, Mr Hill's threatening behaviour had continued within the prison setting with other prisoners, prisons staff, and in 2019 he attempted to send his brother abusive written threatening letters …

   [41] The State of Western Australia v Hill [31], [39] - [40].

2. The Medium Intensity Programme referred to by Quinlan CJ commenced in September 2018.  The Programme Non-Completion Report reveals that after missing a third session the respondent advised the programme facilitators that he was not feeling well due to his chronic health conditions, that he would need to attend further medical appointments, that this would likely result in further absences from the programme sessions and that he did not wish to continue with the programme.[42]  The Non-Completion Report also reveals that the programme facilitators provided the respondent with an opportunity to attend the next session if he changed his decision but that he did not attend and was therefore withdrawn from the programme.

   [42] Exhibit 1, vol 3, 1562.

3. In August 2021 the respondent refused a further opportunity to participate in the Medium Intensity Programme.  In his signed 'Treatment Program Participation Waiver' dated 21 August 2021[43] the respondent gave as reasons for refusing to participate in the programme his medical issues (in particular his renal failure and need to undertake self-dialysis), his need to regularly attend medical appointments at hospital and the fact that his 'strict fluid allowance' meant that he would not be able to consume alcohol on his release from prison.  In relation to the issue of his alcohol use the respondent further stated that 'alcohol abuse has been the cause of all my offending and incarcerations' and 'now I cannot drink so no more problems'.

   [43] Exhibit 1, vol 4, 1617.

4. In an Individual Management Plan prepared by officers from the Department in relation to the respondent dated 20 August 2021[44] it is reported that medical staff were contacted in relation to the respondent's assertions that his medical issues prevented him from participating in the Medium Intensity Programme and that the medical staff advised that there was no medical reason for the respondent not to participate in the programme.

Reports prepared under s 74 and extent to which respondent cooperated in examinations - s 7(3)(a)

Professor Pyszora's evidence

Psychiatric Report dated 6 December 2023

[44] Exhibit 1, vol 1, 97.

1. Professor Pyszora's report reveals the following.

2. Professor Pyszora interviewed the respondent on the morning of 22 November 2023. 

3. The respondent declined to attend scheduled interviews for the afternoon of 22 November 2023 and for the morning of 1 December 2023.  The respondent cited ill health to unit officers as his reason for not attending the interviews.

4. The interviews that the respondent declined to attend were intended by Professor Pyszora to cover his history of relationships, his history of offending and his attitude to previous and future treatment.

5. As the respondent declined to attend two scheduled interviews, Professor Pyszora prepared her report largely on the basis of previous records and information that she had recently received from the respondent's senior CCO.  The records included volumes 1 - 3 of the Book of Materials.  In Professor Pyszora's opinion this did not significantly affect her assessment of the risk of the respondent engaging in serious offending but did limit her ability to make a fully informed judgment about responsivity factors impacting on reintegration and rehabilitation prospects.

6. The respondent presented to Professor Pyszora as rather glib.  He generally maintained a superficially friendly demeanour.  However, if he was challenged with any evidence which contradicted his statements he became briefly irritable. 

7. There was no evidence that the respondent is currently suffering with a major mood disorder or major mental illness such as a psychotic disorder.  His cognitive functioning appeared grossly intact.

8. In Professor Pyszora's opinion the respondent fulfills the criteria for a diagnosis of personality disorder as he displays an enduring pattern of inner experience and behaviour that deviates markedly from the expectations of his culture.  The respondent's personality disorder traits include anti‑social traits and narcissistic traits.  His anti-social traits include failure to conform to social norms with respect to unlawful behaviours, deceitfulness, impulsivity, failure to plan ahead, irritability, aggressiveness and lack of remorse.  His narcissistic personality traits include a sense of entitlement, interpersonal exploitation, arrogance and a lack of empathy.

9. In Professor Pyszora's view the respondent fulfils the criteria for a severe substance use disorder in relation to alcohol.  Although technically the respondent is in sustained remission because the criteria for substance use disorder have not been met for over 12 months, this is due to the fact that he remains in the controlled prison environment.

10. In Professor Pyszora's view the respondent has a history of severe alcohol dependency.  She observes that the respondent has blamed alcohol intoxication for his offending behaviour and has often stated that if he had not been intoxicated he would not have engaged in his offending behaviour.  She further observes that despite these statements the respondent has failed since 2000 to make any sustained efforts to cease his alcohol use and currently denies that he has an alcohol problem.

11. In Professor Pyszora's opinion stalking has been a long term strategy of intimidation and control for the respondent and is an entrenched behaviour.  Stalking is recognised as a core element of the cycle of domestic violence.

12. In Professor Pyszora's opinion the respondent's personality characteristics 'provide the context and vulnerability' for his stalking.  She identifies the relevant personality characteristics as being interpersonal entitlement, antisocial and violence supportive attitudes, misogynistic attitudes, interpersonal dependence, impulsivity, callousness, a lack of empathy and remorse, and a self-righteous and rigid attitude whereby he lives by his own rules.  She observes that the respondent's stalking has occurred in the context of negative emotions of anger and cognitive distortions supportive of the use of violence and threats.  She considers that the respondent's lack of response to treatment means that these factors are unchanged.

13. Professor Pyszora identifies the respondent's psychological skills deficits as including problem solving skills, social skills, communication skills and self-regulation skills.  She observes that the respondent will ruminate, drink and blame others for his stalking and domestic violence behaviour.  She considers that the respondent's failure to self-regulate has maintained and escalated his stalking behaviour and violence over time and ultimately led to the commission of the manslaughter offence two months after his release from prison.

14. In Professor Pyszora's view use of alcohol is not a pre-requisite to the respondent engaging in inappropriate threatening and sexually predatory behaviour.  She is of this view because the respondent has continued to engage in such behaviour while in prison and consequently while not under the influence of alcohol.[45]  However, she considers that alcohol intoxication has acted to further disinhibit the respondent from offending behaviour while in the community.  She also considers that the respondent's depression would have increased any tendency on the respondent's part for rumination.  She notes alcohol dependency is known to exacerbate depressive symptoms 'thus setting up a vicious cycle'.

    [45] I refer to the respondent's behaviour in prison, described by Professor Pyszora as inappropriate threatening and sexually predatory behaviour, in par 299 - 302 of these reasons.

15. Professor Pyszora made use of a number of risk assessment instruments in order to assess the respondent's risk of further serious offending in relation to violence, intimate partner violence and stalking.  The risk assessment instruments that Professor Pyszora used are as follows:

    1.Hare Psychopathy Checklist-Revised (PCL-R);

    2.Violence Risk Appraisal Guide - Revised (VRAG-R);

    3.Historical, Clinical and Risk Management 20 - Version 3 (HCR‑20);

    4.Spousal Assault Risk Assessment Guide - Version 3 (SARAG); and

    5.Stalking Risk Profile (SRP).

16. The PCL-R is a standardised rating scale that allows the reliable identification of psychopathy traits.  Although the PCL-R is not designed to be a risk assessment instrument, it is considered to be an important consideration in assessing risks.  Psychopathy is also strongly associated with the nature and severity of violence.

17. Professor Pyszora completed the PCL-R assessment based on her single interview with the respondent and information that had been provided to her. 

18. The respondent's total PCL-R score indicated that he falls in the 'high' psychopathy group.

19. The VRAG-R is a 12 item actuarial instrument that assesses the risk of violence and recidivism among those previously apprehended for criminal violence.  The respondent's score on the VRAG-R placed him at the 56th percentile and in the fifth of the nine categories of violent reoffending risk.  Twenty six percent of persons within this risk category will commit a further violent offence within five years and 51% will violently reoffend within 12 years.  However, as an actuarial measure this figure represents the risk for the group and cannot be relied upon to determine if the respondent would be in the 74% of persons who have not offended within five years or the 49% who have not offended within 12 years.

20. The HCR-20, SARAG and SRP are Structured Professional Judgment Risk Assessments.

21. Using the HCR-20 Professor Pyszora identifies numerous risk factors for the respondent that are associated with violent recidivism.  The risk factors she identifies include the following: previous violence; anti-social behaviours; problems with relationships; problems with substance use; problems with personality; entrenched attitudes supportive of violence; problems with response to supervision and treatment; problems with insight; and problems with stress and coping.

22. With respect to the problems with response to supervision and treatment factor, Professor Pyszora notes that the respondent's high psychopathy score will present responsivity challenges for both treatment and supervision.

23. Based on her use of the SARAG Professor Pyszora expresses the view that the respondent presents a chronic (that is, persistent) risk of intimate partner violence given that his violence has occurred in at least two relationships and spans a number of years.  She also expresses the view that the respondent's history of breaching VROs is a major risk factor for further intimate partner violence and indicates that he is highly likely to violate any current or future protective orders.

24. Based on her use of the SRP Professor Pyszora assesses the respondent as being at high risk of stalking violence.  In this context she notes that the respondent has one of the '5 red flag risk factors' for stalking violence, specifically psychopathy, and that he also has numerous other risk factors including a previous history of intimate partner violence, impulsivity, poor control, alcohol dependence, multiple breaches of VROs, and minimisation and justification of previous behaviour.

25. Ultimately, based on her assessment of the respondent, it is Professor Pyszora's opinion that the respondent will be at high risk of committing a serious offence of family or domestic violence and/or stalking if his risk factors are not managed by subjecting him to a restriction order.  In her opinion, although the respondent has undertaken various treatment programmes over the years he has not made any treatment gains with the consequence that his risk management would be based largely on stringent supervision and external structure and control, as opposed to through treatment.

26. In Professor Pyszora's opinion the respondent is most likely to engage in stalking and serious violence in the context of an intimate relationship with a female.  However, she considers that the respondent may also commence stalking non-intimate partners with such conduct being motivated by resentment.

27. In Professor Pyszora's opinion the respondent is likely to attempt to form a friendship or intimate relationship with a woman who is vulnerable through old age, ill health, personality, and/or social or geographical isolation.  In her opinion the person will be someone who the respondent perceives can offer him practical assistance with driving or accommodation.  In her opinion it will be in this situation that the respondent could engage in serious violence.

28. In Professor Pyszora's opinion if the respondent relapses into alcohol dependency and intoxication this will significantly escalate his risk of committing offences of violence and stalking offences.

29. In Professor Pyszora's opinion the respondent presents a chronic risk of stalking and violence towards previous victims as well as new victims.  In her opinion it is highly concerning that the respondent, while in prison on antidepressants and without access to alcohol, has continued to engage in sexually predatory behaviour towards women and to make inappropriate comments towards women.  In her opinion if the respondent is unsupervised his stalking and threatening behaviours would quickly escalate.

30. In Professor Pyszora's opinion if the respondent is subject to stringent supervision and controls available through a restriction order, specifically a supervision order, the respondent's risk of committing offences will not be imminent because indicators of high risk situations would quickly be identified by supervising agencies and could be acted upon.

31. In Professor Pyszora's opinion relapse by the respondent into alcohol use would be a major risk factor for further stalking and violence and would be a mark of imminent serious offending.  She considers that without supervision, treatment and controls the respondent will quickly reoffend by engaging in stalking or family and domestic violence.

32. Professor Pyszora considers that management plans for the prevention of future serious offending by the respondent will need to be based on monitoring, treatment, supervision and victim safety planning.

33. In Professor Pyszora's opinion if suitable accommodation and supervision strategies are available, the respondent's risk of committing further offences is 'potentially manageable' in the community.  She observes that although there is no reason 'through physical or mental impairment' why the respondent could not substantively comply with the conditions of any supervision order, his motivation to do so is untested.

34. In Professor Pyszora's opinion monitoring strategies should be implemented to prevent the respondent being in high risk situations and to ensure early detection of warning signs that such a situation is developing.  The monitoring strategies for the respondent should include regular review by his CCO, regular and random urine and/or breath testing to monitor for complete abstinence from illegal drugs and alcohol, and robust information sharing between agencies involved in his care and supervision so as to obtain collateral information on his behaviour and the presence of any warning signs.

35. Professor Pyszora recognises that monitoring and supervision strategies may need to be adapted to fit the respondent's medical conditions and appointments.  She observes that rather than always requiring the respondent to attend at the offices of Adult Community Corrections and the police, it is likely there will need to be a greater frequency of visits to the respondent's home to accommodate his medical needs. 

36. Professor Pyszora recommends the imposition of a curfew to support the respondent's reintegration into the community.  She also recommends a condition requiring the respondent to keep a diary as a means of monitoring the respondent's reintegration activities and enabling supervising agencies to verify his accounts of his activities.

37. In Professor Pyszora's opinion the respondent's ability to be alone with females needs to be restricted and conditions need to enable early reporting and detection of new associations.  She recognises that although these restrictions are necessary to ensure adequate protection for the community, they are likely to impact on available shared accommodation options.

38. In Professor Pyszora's opinion in order to manage the respondent's risk it will be vital for there to be conditions that allow for the checking of his communication devices as well as conditions prohibiting sharing of communication devices and/or deleting of call logs or written communications.

1. In Professor Pyszora's opinion the respondent requires treatment to address his considerable outstanding criminogenic needs including substance misuse, anti-social attitudes, cognitive distortions, coping skills and emotional regulation.  In her opinion the respondent should be assessed by departmental psychologists for suitability for individual treatment.  She considers that it is possible that individual work could increase the respondent's motivation to comply with any order through his own self-interest and that this in turn would enhance risk management.  In her opinion the respondent is not suitable for further group based treatment.

2. Professor Pyszora recommends the respondent continue to take antidepressant medication for as long as it is medically recommended.  She makes this recommendation given that untreated depression will increase the respondent's tendency to ruminate and consequently increase the chance of him relapsing into alcohol use and therefore engaging in stalking and violence.  She recognises that ongoing or new prescription of any medication will need to be done in accordance with expert advice from renal physicians in view of the respondent's end-stage renal failure.

3. In Professor Pyszora's opinion supervision strategies should include appropriate restrictions of community freedom and be run in conjunction with the monitoring strategies that she recommends.

4. Professor Pyszora summarises her opinion by stating that stringent monitoring and supervision enabling early detection of risk indicators will be the mainstay of risk management in the respondent's case.  She recommends that if the respondent is made the subject of a supervision order the order should be for a period of at least seven years.

Oral evidence - 19 January 2024[46]

[46] ts 23 - 67, 19 January 2024.

1. In her supplementary oral evidence given on 19 January 2024 Professor Pyszora maintained the views and opinions expressed in her report.

2. Professor Pyszora testified that people who score highly in psychopathy more commonly engage in instrumental violence rather than reactive violence. Instrumental violence is violence that is planned and engaged in for a specific purpose.

3. Professor Pyszora testified that it is known that people who score highly in psychopathy can be very challenging to supervise and engage with. They can also lack motivation to change.

4. Professor Pyszora expressed the opinion that there is a very high risk that the respondent will contravene the conditions of any current or future VROs. In her opinion there needs to be very robust and intensive management of the respondent to prevent this from occurring and to detect any such behaviour.

5. Professor Pyszora explained that the references in her report to 'stalking violence' are references to stalking accompanied by threats of violence as well as physical violence.

6. Professor Pyszora confirmed that in expressing the opinion in her report that the respondent presents a high risk of committing a serious offence of family or domestic violence, she is referring to offences of family and domestic violence that are serious offences within the meaning of the Act.  She further confirmed that in her opinion one of the 'victim groups' that the respondent presents a risk to is intimate partners including past partners.  However, she also made clear that in her opinion the respondent could potentially exhibit stalking behaviour to family members and any person that he develops a 'particular relationship with'.

7. Professor Pyszora expressed the opinion that suitable accommodation for the respondent is accommodation where there are no female residents or female staff or regular female visitors.  She is of this opinion in light of the respondent's persistent pattern of inappropriate and predatory behaviour towards females which is very longstanding and which has not improved during his term of imprisonment.  Her prediction is that the respondent will continue to engage in such behaviour towards females.  She would not be supportive of the respondent living in accommodation in which a female also resides. 

8. Professor Pyszora expressed the opinion that an all‑male shared facility will be suitable accommodation for the respondent if the facility has policies and procedures in place that prevent female visitors from attending the facility.

9. Professor Pyszora expressed the opinion that if the respondent is found to be a high risk serious offender and is released on a supervision order in the absence of him having suitable accommodation, it will not be possible to implement the supervision order.  In these circumstances the respondent's risk factors will in her opinion be unmanageable.

10. Professor Pyszora testified that she cannot rule out the possibility that the respondent's behaviour in response to past VROs will change in the future particularly if there are stringent conditions and supervision requirements imposed on him.

11. Professor Pyszora confirmed that in arriving at her opinions she took into account that even though the respondent is now 66 years old he has continued while in prison to exhibit concerning behaviours towards females.

12. Professor Pyszora confirmed that in arriving at her opinions she did consider the respondent's physical ailments in the sense that they are likely to present some challenges for those responsible for supervising and managing him in the community.  She testified that the respondent's kidney disease does not contribute to his inherent risk of reoffending but does potentially impact upon how manageable he will be in the community.  She testified that in her opinion the respondent's physical ailments do not mean that he is less likely to reoffend.

13. Professor Pyszora testified that the fact that the respondent has abstained from alcohol during his most recent period of imprisonment does not impact on the assessment of the likelihood of him consuming alcohol in the future.  She testified that the fact that the respondent has not used alcohol while in the controlled prison environment does not provide a basis for predicting the likelihood of him relapsing into alcohol use if he is released into the community.

14. Professor Pyszora expressed the opinion that the respondent still has an alcohol problem.  In her opinion the respondent's assertion that he will not drink alcohol because his kidney disease prevents him from consuming more than a set amount of fluid each day is simplistic.  In her opinion the assertion is simplistic because any restriction on the amount of fluid that the respondent can consume each day does not mean that he will not drink alcohol instead of water.

15. Professor Pyszora agreed that it would be possible to attempt to address the respondent's attitude towards women through individual psychological therapy.

16. Professor Pyszora expressed the view that if the respondent is found to be a high risk serious offender and is released into the community on a supervision order it will not be possible to detect and prevent, prior to its occurrence, an episode of stalking by the respondent comprised of, for example, engaging in a telephone communication with a person. However, she considers that what could be possible if the respondent is released into the community on a supervision order is the rapid detection of stalking behaviour once it occurs.  She considers that for this to occur there would need be a very robust system whereby victims were regularly liaised with and made to understand how they could gain assistance if required.

17. Professor Pyszora made the point that the respondent does not think that he has an alcohol problem or any other problem and that therefore any psychologist who engages in individual therapy with him will need to engage in motivational interviewing before even getting to therapy aimed at changing his behaviour.

18. Professor Pyszora explained that her references in her report to the respondent's 'predatory sexual behaviour' are references to sexually inappropriate comments, including misogynistic and racist comments to females.

19. Professor Pyszora testified that it was appropriate that the opinions expressed by her in her report are largely, albeit not exclusively, based on the comprehensive historical materials that have been provided to her, including previous psychological and psychiatric reports that have been prepared in relation to the respondent. She testified that recourse to these materials is the most defensible and robust way of enabling her to provide a risk assessment of the respondent.

20. In her evidence Professor Pyszora confirmed that she has reviewed the supervision order conditions that have been proposed by Ms Czechowski for my consideration in the event that I find that the respondent remains a high risk serious offender and am considering whether to release him on a supervision order.  She expressed her opinion about the relevance and wording of some of the proposed conditions.  She expressed the opinion that the proposed conditions provide a framework by which the respondent can be subjected to stringent supervision and external controls.  However, she also expressed her concern that there are issues about the practicality of the implementation of the conditions in a way that will prevent the occurrence of certain stalking behaviours.

21. Professor Pyszora confirmed that she is aware from her communications with Ms Czechowski of the respondent's proposal to live with his friend JM at the proposed address.  She also confirmed that she is aware that JM is currently subject to a parole order after being released from prison for an offence of murdering his wife. She testified that she is not supportive of the respondent being released to live at the proposed address, 'perhaps less so for the fact [JM's] on parole for murder' but rather because on her understanding JM is due to have a lady from the Philippines come to live with him for about three months.

Oral evidence - 7 March 2024[47]

[47] ts 216 - 221, 7 March 2024.

1. In her supplementary oral evidence given on 7 March 2024 Professor Pyszora gave evidence that was largely, although not solely, concerned with the suitability or otherwise of the Lodge property as accommodation for the respondent in the community.  At the time of giving this evidence Professor Pyszora had been able to consider Ms Czechowski's Update Community Supervision Assessment Report dated 26 February 2024, the results of a Desktop Spatial Analysis of the Lodge property, the Tate Street Lodge Conditions and the CBIS file note.[48]

   [48] The content the Update Community Supervision Assessment Report, the Tate Street Lodge Conditions and the CBIS file note, and the results of the Desktop Spatial Analysis of the Lodge property, are referred to further and to the extent necessary later in these reasons.  The results of the Desktop Spatial Analysis of the Lodge property are set out exhibit 8.

2. Professor Pyszora testified that if conditions of occupancy of the Lodge property did not restrict the drinking of alcohol at the property by other occupants this would create issues for the management of the respondent 'because if he remains in the company of somebody using alcohol he does not have…self-management techniques'.  She testified that a condition of any supervision order that required the respondent to remove himself from the presence of any person drinking alcohol would potentially impinge on his ability to live day-to-day in the Lodge property given the shared kitchen facilities. 

3. Professor Pyszora confirmed that she was aware from reading Ms Czechowski's Update Community Supervision Assessment Report dated 26 February 2024 that the Victim Mediation Unit (VMU) had recommended that if the respondent is found to be a high risk serious offender but is released on a supervision order that the entirety of the City of Armadale be made a Global Positioning System (GPS) exclusion zone.  Professor Psyzora also confirmed that she was aware from reading the results of the Desktop Spatial Analysis of the Lodge property that two of the respondent's victims lived in close proximity to the Lodge property.  Professor Pyszora testified that on the basis of the VMU's recommended exclusion zone and the proximity of the respondent's two victims to the Lodge Property, it was her opinion that the Lodge property was not suitable accommodation for the respondent.  In this context Professor Pyszora expressed concern about the viability of the respondent being able to leave the Lodge property without coming into contact with the victims.

4. In response to questioning in cross-examination, Professor Pyszora testified that in her opinion the proposed address is unsuitable accommodation for the respondent.  In this context she referred to her understanding that a lady from the Philippines and her two children would be living with JM at the proposed address and stated that it was 'untenable' for a potentially vulnerable female to be living in the same residence as the respondent.[49] 

   [49] Professor Pyszora’s expressed understanding about the presence at the proposed address of the lady from the Philippines and her children was based on the content of Ms Czechowski’s Supervision Assessment Report dated 27 December 2023 and the evidence given by JM at the earlier hearing of the application on 24 January 2024.  The content of Ms Czechowski’s report and JM’s evidence are referred to in detail later in these reasons.

5. Also in response to questioning in cross-examination, Professor Pyszora agreed that in terms of risk management of the respondent, the best accommodation option for the respondent would be supported accommodation in which he lived alone away from the Armadale area.  She testified that this type of accommodation would be the 'best case scenario' for the respondent because if he is required to live on his own it will be easier to manage and enforce the conditions of any supervision order. 

Dr Yewers' evidence

Psychological report dated 8 December 2023

1. Dr Yewers' report reveals the following.

2. For the purposes of preparing her report Dr Yewers had access to various materials including volumes 1 - 3 of the Book of Materials.

3. Dr Yewers interviewed the respondent on 2 November 2023 and 16 November 2023.

4. The respondent was polite and ostensibly genial throughout the assessment process.  Although he responded to all questions his narrative was verbose and rambling and lacked depth and insight.  He generally portrayed himself positively and others disparagingly and required prompting to acknowledge less favourable aspects of his behaviour.  He also made several comments during both interviews that were inappropriate and ingratiating.

5. The respondent told Dr Yewers that he is not currently in a relationship.  He indicated that he may be open to a relationship in the future but that his priority on release would be to build himself a motor home to live in.  When asked to reflect on some of the difficulties that he had had with his intimate relationships, the respondent articulated that alcohol and lending women money were the cause of his problems.  He explained that women are 'wasteful' with money and love to go shopping.

6. The respondent claimed that he has never been dependent on alcohol because he has always ensured that he limited his intake to three 'king browns' after 3.00 or 4.00 pm and always ate dinner when he was drinking.  When asked if his drinking had caused him any problems, the respondent stated that it had 'cost me my life'.  He explained that he was referring in this context to his repeated driving while under the influence and the consequential loss of his driver's licence.  He went on to assert that it had 'worked out well' because he had moved on to converting buses to homes which he enjoyed and was profitable.

7. When Dr Yewers asked the respondent if alcohol intoxication had caused any problems for him, he stated that he was not an 'aggressive drunk' and did not fight.  However, he indicated that sometimes when he drinks too much he does 'stupid things', such as act sleazily towards women and drive without a valid licence.

8. The respondent told Dr Yewers that he would not drink alcohol in the future due to his health issues.  He stated that his health issues prevent him from consuming more than one and a half litres of fluid per day and that this means that there is 'no room for even one sip of pure whisky'.  He stated that he would not want to drink alcohol when released and that he had the willpower to abstain because 'if I drink, I die'. 

9. The respondent denied any proneness towards acting impulsively when sober.  However, he acknowledged previous impulsive behaviour when intoxicated such as driving under the influence of alcohol.

10. The respondent claimed that he had never had any issues relating to managing his anger.

11. The respondent told Dr Yewers that his current mood is stable and that he is looking forward to being released from prison.  He denied any significant anxiety, past or present.  However, he commented that he had previously worried a lot and gave examples of his worries.  He said that he did not worry anymore because there was nothing to worry about in prison.

12. Dr Yewers questioned the respondent about his offences.

13. The respondent attributed his 2006 stalking offence to the fact that he had discovered that the victim had been at a nightclub and was therefore spending money which she owed to him.  He claimed that he had not threatened the victim and was 'just annoyed … because she went against her word' to pay him back.  He added that if he had not loaned the victim money then he would not have committed the offence.

14. The respondent asserted that he committed the 2010 aggravated assault occasioning bodily harm offence against the background of AB's 'junkie daughter' taking advantage of her.  He claimed that a portion of a sum of money that he had hidden in AB's back yard went missing and that he suspected that AB had taken it and given it to her daughter.  He stated that on the night of the offence he had accused AB of stealing the money and that she did not respond to his accusations, probably because she was 'terrified' and 'didn't want to provoke me or anything'.  He stated that he had slapped AB four times 'quite hard but I had enough sense to say, be careful Mark, you could kill her'.  He acknowledged that 'it was a terrible thing to do' but said that AB had recovered.  He asserted that AB had only applied for a VRO because the police had told her to.

15. The respondent asserted that his 43 breach VRO offences committed against AB in 2011 were the product of AB calling him first and then him calling her back so that she did not accumulate a large phone bill.

16. In relation to the two breach VRO offences that involved the sending of letters to AB's daughter's friend containing derogatory remarks about AB's daughter, the respondent asserted that AB's daughter would not have been fearful but would rather have thought, 'I've got him now.  This will get him in trouble'.

17. In talking about the manslaughter offence the respondent referred to the victim as the 'so‑called victim'.  He asserted that on the night of the offence he had gone to her house to collect his motorbike because he had met someone and was going to travel to Esperance with him.  He claimed that he was unaffected by alcohol.  He stated that he knocked on the victim's door with the intention of letting her know of his plans, that she was irritable, screamed in his face and told him to go away.  He stated that he pushed her backwards with two hands and she fell onto her bottom.  He stated that this enraged her further so he left.  He stated that he did not kill her and that she probably had a fall, passed out or froze to death.  He stated that he was found guilty based on circumstantial evidence and because he was the last person to see her alive.  He pointed out that the victim's cause of death was not definitively ascertained and stated that he had been disadvantaged by poor legal representation.  He stated, 'It's been 11 years.  I don't even think about it now, it's too far gone'.  He also stated, 'I can't blame myself because she was in my face shouting and spitting.  I wanted her out of my face'.

1. The respondent has attended a significant number of programmes over the years.  However, he has made no substantial treatment gains.  He has a poor history of treatment responsivity.

2. More recently the respondent has declined the opportunity to engage in programmatic intervention appropriate to his needs, specifically the Medium Intensity Programme.  I do not accept the respondent's evidence that his medical condition and his potential need to attend specialist medical appointments truly prevented him from attending and engaging in the programme.  I have no doubt that the respondent's need to attend very occasional specialist medical appointments could have been accommodated within the strictures of the programme if the respondent was genuinely motivated to participate in, and complete, the programme.  In my view the reason that the respondent declined to participate in the programme is, as he in effect stated in the waiver document, because he believes that he will no longer consume alcohol and will therefore not be at risk of reoffending.  I note in this respect that on the respondent's own evidence although he was previously required to attend specialist appointments 'quite regularly' he now manages his own dialysis and the specialists 'just leave [him] alone' and call him up once every six months to ask how he is going.[79] 

   [79] ts 123, 19 January 2024.

3. The respondent has in the past shown a complete disregard for complying with court imposed orders.  Since 2004 he has amassed a total of 48 convictions for breaching VROs.  In the same period he has also breached a community based order, a suspended imprisonment order and a conditional release order.  Further, he committed his aggravated stalking offence just over a month after having been released from prison and then committed his manslaughter offence less than a month after committing the aggravated stalking offence.

4. If the respondent is released on a supervision order his psychopathic personality traits, taken together with his beliefs that he does not pose a risk to members of the community and does not require programmatic intervention and/or counselling, will negatively impact upon his ability and willingness to comply with any directions given to him by a CCO and the conditions of the supervision order more generally.

5. The respondent has while serving his most recent prison sentence engaged in inappropriate, sexually predatory and/or abusive behaviour towards females.  

6. The respondent is clearly at a high risk of contravening the two VROs that are currently in force against him.[80]  Further, and as both Professor Pyszora and Dr Yewers in effect recognised, despite the stringency of the supervision order conditions proposed for my consideration by Ms Czechowski it will be very difficult to prevent the respondent from engaging, at least for a short period of time and until detected, in communications that are in breach of an existing VRO.  Any such communications, even if they do not occur repeatedly, might constitute the commission of the serious offence of stalking given par (e) of the definition of the term 'pursue' contained in s 338D of the Code.[81]

   [80] The protected persons under the two VROs are AB and the respondent’s sister.  The VRO in respect of AB is a lifetime order.  The VRO in respect of the respondent’s sister is due to expire on 9 January 2025: exhibit 1, vol 4, 1621.

   [81] Any communication that occurs in breach of a restraining order and in a manner that could reasonably be expected to intimidate the person protected by the restraining order, and that does in fact intimidate the person protected by the restraining order, will constitute the offence of stalking: Code, s 338E(2).

7. AB has, for the valid reasons identified by her in the Victim Submission, expressed the view that in order to ensure adequate protection of her from the respondent it is necessary to make a continuing detention order in respect of him.

1. It is the position that the respondent is now 66 years old and has some significant health issues which will inevitably reduce his mobility to some extent.  However, and consistently with the evidence given by Professor Pyszora and Dr Yewers, I am not persuaded that the respondent's health issues and associated reduction in mobility are such as to materially reduce the risk of him developing a relationship (social and/or intimate) with a female, particularly a vulnerable female, and subsequently behaving violently toward them.  Nor am I persuaded that the respondent's health issues and associated reduction in mobility will materially reduce the risk of him engaging in stalking. 

2. Finally, there is the issue of the respondent's proposed accommodation.

3. To the extent that Professor Pyszora and Dr Yewers in their evidence expressed cautious and tentative support for the conclusion that the respondent's high risk of committing serious offences might be able to be managed by releasing him on a supervision order containing the conditions proposed for my consideration by Ms Czechowski, the support was premised on the respondent having available to him suitable accommodation.   In this respect Professor Pyszora's evidence was that suitable accommodation for the respondent is accommodation where there are no female residents, staff or visitors and where there are policies and procedures in place that prevent female visitors from visiting the accommodation.  Dr Yewers' evidence was also that suitable accommodation for the respondent is accommodation where there are no female residents.  Further, although Dr Yewers did not express the opinion that for accommodation to be suitable for the respondent their needed to be a prohibition on female visitors to the accommodation, she did make clear that she considered that there would need to be measures in place that enabled the monitoring of female visitors so that the 'nature' and any potential vulnerability of the visitor is able to be ascertained. 

4. In my opinion it is imperative, given the evidence of Professor Pyszora and Dr Yewers, and taking account of the respondent's offending history, that if the respondent is released on a supervision order he has available to him accommodation, at least for some time after his release, in which there are no female residents.  In my opinion it is also imperative, given the evidence of Professor Pyszora and Dr Yewers, and taking account of the respondent's offending history, that any supervision order contain the currently proposed condition prohibiting the respondent from permitting any female to enter his residence unless the identity of the female is approved in advance by a CCO.

5. Turning to the proposed address.

6. It is clear from the evidence of JM that there will be at least one female, MA or her daughter, living at the proposed address between now and the end of May 2024, and that it is possible that MA's mother may also live at the address for a period of time up until at least the end of May 2024.  It is also clear from the evidence of JM that there will inevitably on occasions be female visitors to the proposed address.  Further, and understandably, JM has made clear that the respondent will not be able to live with him at the proposed address if the respondent's supervision order contains a condition that prevents females from attending the address, which I take to include a condition that prevents females from attending the address without the authorisation of a CCO.  It is entirely understandable that JM does not want the respondent to live at the proposed address if the effect of permitting the respondent to do so is that he, that is, JM, cannot have females attend the address in the absence of the respondent's CCO giving authorisation for this to occur.

7. I recognise that JM is likely to be present at the proposed address for much of the time that MA, MA's daughter and perhaps also MA's mother are living at the address.  I also recognise that JM is likely to be present at the proposed address on most of the occasions that any female visitors attend.  However, there is no guarantee that this will always prove to be the situation.  Further and in any event, the presence of JM will not inevitably prevent the respondent from engaging with and forming some sort of relationship with any female who happens to visit the proposed address.  In this regard it is important to bear in mind the evidence of Dr Yewers to the effect that any acquaintanceship that the respondent forms with a person does not have to be long-term to place the person at risk.

8. Moreover, in the absence of a condition that operates to prevent the respondent from permitting any female to enter the proposed address in the absence of prior approval by a CCO, there will be no way of preventing the respondent from making his own unmonitored arrangements for females to attend the proposed address. 

9. If the respondent is released to live at the proposed address he will be living within 6 km of his sister who is the protected person under a VRO obtained against the respondent.  The respondent's close proximity to his sister will mean that there is a real risk that he will come across her which will in turn further increase the already significant likelihood of the respondent contravening the VRO and proceeding to engage in stalking behaviour in respect of her.

10. The matters referred to in par 420 - 421 and 423 - 426 above are of themselves sufficient to justify the conclusion that the proposed address is not suitable accommodation for the respondent.  There is, however, a further difficulty, specifically that JM is only willing to accommodate the respondent for six months.  In the absence of the respondent having any other possible present or future accommodation options, this could well result in the respondent being left without any long-term stable accommodation within a relatively short time of being released into the community.

11. Ultimately, and for the reasons I have stated, I am not satisfied that the proposed address is suitable accommodation for the respondent.  

12. That leaves the Lodge property.

13. Consistently with the evidence given by Professor Pyszora and Dr Yewers, I am not satisfied that the Lodge property is suitable accommodation for the respondent.  I am not so satisfied for four main reasons.

14. First, it seems to me that there is an appreciable risk of other occupants of the Lodge property having female visitors at the property with the result that the respondent may come into more than occasional contact with females if he lives at the property.   I note in this respect that the Tate Street Lodge Conditions stipulate only that occupants of the Lodge property are not to have visitors in their rooms, as opposed to in the common areas of the property.  I also note in this respect that although the proprietor of the Lodge property has informed the COMU that she tells occupants of the property that they are not to have visitors on the property, she has also stated that it is very hard to control whether or not this occurs.  This is hardly surprising given that the proprietor does not live at the Lodge property.

15. Second, occupants of the Lodge property are not prohibited from possessing and consuming alcohol at the property.  There is therefore a real risk that if the respondent is permitted to live at the Lodge property he will be exposed to alcohol use by other occupants of the property.  In my opinion the likelihood of the respondent, if he is exposed to alcohol use by other occupants of the Lodge property, being able to resist the temptation of relapsing into alcohol use is very remote.  Any relapse by the respondent into alcohol use would have serious implications for the risk of him committing a serious offence of the type I have identified.

16. Third, the Lodge property is situated within the City of Armadale which the VMU recommends should be an exclusion zone.

17. Fourth, and in my opinion most importantly, two of the respondent's victims live within 3 km of the Lodge property.  I note in this regard that although the VMU did not disclose to the COMU the identity of the two victims, the only inference that can be reasonably drawn on the evidence before me is that one of the two victims is AB (that is, the victim of the aggravated assault occasioning bodily harm offence, the 43 breach VRO offences and the aggravated stalking offence).  The evidence that I am referring to in this context is the evidence that AB, at the time of being offended against by the respondent, was living in a suburb within the City of Armadale and the evidence that during Ms Czechowski's interview with the respondent on 13 October 2023 the respondent, in citing AB's address, cited an address in a suburb within the City of Armadale.[82] 

    [82] In the course of his oral submissions made on 7 March 2023 counsel for the respondent conceded that the inference that AB is one of the two victims who lives within 3 km of the Lodge property is irresistible.

18. It is, in my opinion, clearly untenable for the respondent to be released on a supervision order that requires him to live at the Lodge property when the property is in such close proximity to AB's residence.  This is particularly so bearing in mind the respondent's knowledge of AB's address, his demonstrated willingness to contravene court orders put in place for AB's protection and AB's Victim Submission.

19. The fact that neither the proposed address nor the Lodge property is suitable accommodation for the respondent with the consequence that he does not have suitable accommodation available to him in the community is no trifling matter.  As Hall J observed in The State of Western Australia v Corbett [No 5]:[83]

    Accommodation for a person on a supervision order is not simply a place to live.  The location and type of accommodation are factors that are integral to any proper assessment of the risk of reoffending …

    [83] The State of Western Australia v Corbett [No 5] [2017] WASC 115 [80].

20. As Professor Pyszora opined, in the absence of suitable accommodation for the respondent it will not be possible to implement the supervision order and the respondent's risk factors will be unmanageable.

21. Under a supervision order containing the conditions proposed for my consideration by Ms Czechowski the respondent would be subject to a very high level of control and supervision.  The proposed conditions are stringent and extensive.  They do seek to directly address the respondent's risk factors as disclosed by the evidence to which I have referred.  They also seek to directly address the concerns expressed by AB in the Victim Submission.  Nonetheless, when I take into account the matters that I have referred to in par 404 - 418 above in combination with each other and in light of the unavailability of suitable accommodation in the community for the respondent, I am unable to satisfy myself on the balance of probabilities that if the respondent is released on a supervision order containing all the conditions proposed for my consideration by Ms Czechowski he will substantially comply with the standard conditions of the order specified in s 30(2)(b), s 30(2)(d) and s 30(2)(f) of the Act.

22. It necessarily follows from what I have said in the preceding paragraph that I am also not satisfied that the need to ensure adequate protection of the community from the unacceptable risk of the respondent committing serious offences of the types I have identified can be met by releasing the respondent on a supervision order containing the conditions proposed for my consideration by Ms Czechowski.  I will therefore make a continuing detention order in respect to the respondent pursuant to s 48(1)(a) of the Act.

Recommendations

1. Under s 64(2)(a) of the Act the applicant is required to ensure that a review of the continuing detention order that I am going to make is carried out as soon as practicable after the expiration of 12 months from the date of the commencement of the order.  Therefore, a review of the respondent's detention under the continuing detention order that I am going to make will occur relatively shortly after the expiration of 12 months from today's date.

2. In my opinion it is imperative that three things occur prior to the review of the respondent's detention.

3. First, the respondent continues to take his prescribed antidepressant medication.

4. Second, the respondent's referral to the FPIT remain in place and that pursuant to the referral a psychologist commences one-on-one therapy with the respondent as soon as possible.  The fact that I am going to make a continuing detention order should not be treated as a reason for delaying the commencement of therapy.  The respondent should be given the opportunity to engage in therapy for as long a period as possible prior to the review with the aim being to make some inroads into his outstanding treatment needs and to help him develop some risk management strategies.

5. Third, on the assumption that the outcome of the application will have brought home to the respondent the importance of him having access to suitable accommodation, he should once again be assessed for inclusion in the Uniting WA SAP.  This should occur quickly so that if the respondent changes his position and agrees to participate in the programme he will be able to complete the necessary six month engagement with Uniting WA well prior to the time of the next review.[84]

   [84] In the course of his oral submissions made on 7 March 2023, counsel for the respondent informed me that he had advised the respondent as to 'what needs to happen going forward in terms of Uniting WA' in the event that I decided that it was necessary to make a continuing detention order: ts 226 - 227, 7 March 2024.

6. In recommending that the respondent again be assessed for inclusion in the SAP I need to make two further points. 

7. First, if the respondent engages with Uniting WA to the extent that he is able prior to the review with the consequence that he will be in a position to access the reintegration support that forms part of the SAP, the prospects of the court finding at the review that it is appropriate to release him on a supervision order in the event that the court also finds that he remains a high risk serious offender will likely be increased assuming, of course, the availability of suitable SAP accommodation.  Certainly, the evidence given by Professor Pyszora and Dr Yewers during the hearing on 7 March 2024 would appear to support this conclusion.

8. Second, in my opinion, having listened to the respondent's evidence regarding his medical condition and the extent to which he is able to function without the assistance of a wheelchair or mobility scooter, his medical conditions should not preclude him being able to access at least some of what I understand to be the available accommodation under the SAP.

9. In addition to the three 'imperatives' that I have identified, I also recommend that the respondent once again be given the opportunity to engage in the Medium Intensity Programme or an equivalent programme prior to the review.  In making this recommendation I am conscious of Professor Pyszora's evidence that the respondent is not well suited to group based therapy.  Nonetheless, if the respondent is willing to attempt to address his offending behaviour, particularly his propensity for violence, through a group based programme he should be given the opportunity to do so provided that participation in the programme will not conflict with, or adversely impact upon the benefits to him of, individual psychological therapy.  

Order

1. I make a continuing detention order in relation to the respondent pursuant to s 48(1)(a) of the Act.

ANNEXURE A

STANDARD CONDITIONS REQUIRED BY THE ACT

1. Report to a Community Corrections Officer (CCO) at the East Perth Adult Community Corrections Centre, 30 Moore Street, East Perth, within 48 hours of this order being issued and advise the officer of your current name and address;

1. Report to and receive visits from, a CCO as directed by the Court;

1. 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;

1. Be under the supervision of a CCO, which includes, comply with any reasonable direction of the officer (including directions for the purposes of section 31 or 32);

1. Not leave, or stay out of the State of Western Australia without the permission of a CCO;

1. Not commit a serious offence during the period of the Order;

1. Be subject to electronic monitoring under section 31;

ADDITIONAL CONDITIONS

The following conditions incorporate the above standard conditions and are suggested to strengthen and add to the standard conditions required by the Act for the more effective management of the offender in the community.

Residence

1. Take up residence at [specified address] and spend each night (time as defined by your CCO) at that address or at a different address only if such different address is approved in advance by a CCO assigned to you;

1. Not to leave [specified address] without first seeking and obtaining approval in advance from your CCO;

Reporting to a CCO and supervision by a CCO

1. Report to a CCO at your approved release address within normal business hours on the day of release from custody under this order;

1. Be under the supervision of a CCO, report to and receive visits from and comply with the lawful orders and directions of a CCO;

1. Not commence or change paid or unpaid employment, volunteer work, education, or training without the prior approval of the CCO;

1. Disclose to the CCO the name and details of any paid or unpaid employment, education, training or volunteer work in which you seek to be approved to commence;

1. Should your pre-approved employment require you to work at different locations, you are required to notify your CCO of any change of location where you are working, during working hours on the day you are working at the new location, or as otherwise directed by your CCO;

Attendance at programs or treatment

1. Consult and engage with any medical practitioner, psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO;

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

Reporting to WA Police

1. Report to the Officer-in-Charge of the High Risk Serious Offender team at the Hatch Building, 144 Stirling Street, Perth WA 6000 within 48 hours of your release from custody, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the High Risk Serious Offender team or his/her delegate;

1. 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 believes to contravene the conditions of the Order;

1. 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;

1. When requested, advise Police of the names of all of your internet service providers, all mobile or landline telephone services used by you and all screen name(s), user name(s), and email addresses;

Disclosure/Exchange of Information

1. Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information;

1. Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate to disclose to them confidential information including your offending history;

Restrictions on contact with Victims

1. 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;

1. Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your violent offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victims at all times;

1. Report to the CCO and WA Police any direct or indirect contact with the victims of your offending on the next working day you report to the CCO or Police;

Criminal conduct

1. Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either sexual offences, violence, threats of violence, or the possession of weapons or offensive instruments;

27.     Not commit an offence under s202, s203, s204 Criminal Code 1913 (WA) or s 17(1) Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021;

1. Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996;

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

1. Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997;

Curfew

1. Be subject to a curfew, pursuant to section 32 of the High Risk Serious Offenders Act 2020, such that you are to remain at and not leave you approved address as directed by a CCO from time to time;

1. When subject to a curfew under this order, present yourself for inspection at the front door or front yard of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew;

1. When subject to a curfew under this Order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew;

Prevention of high-risk situations

1. With the exception of public transport, not to enter in or on any vehicle, including taxis and rideshare vehicles such as but not limited exclusively to Uber, where a female is present (whether that vehicle is under your control or not), unless the identity of such person is approved in advance by the CCO;

1. Not enter any residential address in which a female resides or is known to reside, unless authorised in advance by a CCO;

1. Not permit any female to enter any residential address in which you reside, unless the identity of such person is approved in advance by a CCO;

1. Report at your next contact with your CCO, the formation of any social association or potentially intimate association (of more than 1 contact by any means), domestic, romantic, sexual or otherwise intimate relationship by you with any person;

1. As directed by your CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence an ongoing social association or potentially intimate association (of more than 1 contact by any means), domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer;

1. Not to associate with any person who may fit the criteria of being a co offender or co accused when previously committing serious offences which may have been considered when determining your suitability for a community restriction order (supervision or interim supervision order) under the provisions of the High Risk Serious Offenders Act 2020;

1. 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;

1. Provide a valid sample pursuant to Condition 40;

1. Not purchase, or possess, or consume or use alcohol;

1. Not remain in the presence of any person who is affected by alcohol or prohibited substances, or you ought to know are affected by alcohol or prohibited substances, unless the identity of such person is approved in advance by the CCO;

1. 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, or remove the persons consuming prohibited drugs from your residence;

1. Advise a CCO or Police Officer of every computer, telecommunication and/or electronic device capable of storing digital data or information, possessed or used by you, whether or not it is capable of being connected to the internet, and the location of that device;

1. Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 45, without prior approval;

1. Enable device locking or password access of your computer, telecommunication and/or electronic devices, Not provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device referred to in condition 45, or any online accounts, to any person other than a CCO or Police Officer;

1. Upon request, permit a CCO or WA Police at any location nominated by them, to access any computer, telecommunication and/or device capable of storing digital data, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device; this includes providing all screen name(s), user name(s), and email addresses. Should any other entity be required to access a device for instances such as technical advice, approval must be sought in advance from a CCO;

1. Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunication and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police;

1. Not to be in possession of any firearm, any ammunition or any offensive or prohibited weapon, replica or dangerous article and not to apply for, acquire or hold a licence to possess any firearm, any ammunition or any offensive or prohibited weapon, replica or dangerous article;

1. Report any unsolicited interaction with females at your residential address to the CCO and the Serious Offender Management Squad at your next scheduled appointment;

1. Not enter the premises of, or access the services of, escort agencies or sex workers unless pre-approved by a CCO;

1. Maintain a daily diary of your movements, activities and associations, if and as directed by the CCO, and present this diary to the CCO and Police upon request;

1. To disclose and provide reasonable details of your activities, movements and the associations you come into contact within the community, when reasonably requested by your CCO;

1. Not obtain a passport or attend an International departure point without prior approval from a CCO;

1. You must not assault, threaten, insult, use abusive language or be sexually inappropriate to a member of the Departmental staff or an agent providing a service on behalf of the Department of Justice;

Medications/Mental Health

1. Attend any medical practitioner, psychologist, psychiatrist, or counsellor as directed by the supervising CCO or undergo medication treatment, including anti-depressant medication or anti-libidinal treatment, as directed by the CCO in consultation with a medication practitioner or medical practitioners.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

JP

Research Associate to the Honourable Justice Derrick

15 MARCH 2024