The State of Western Australia v JPA [No 2]

[2025] WASC 16

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- JPA [No 2] [2025] WASC 16

CORAM:   FORRESTER J

HEARD:   10 DECEMBER 2024

DELIVERED          :   12 FEBRUARY 2025

FILE NO/S:   SO 7 of 2024

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

JPA

Respondent

Catchwords:

Criminal Law - High risk serious offender - Application for restriction order - Whether the respondent is a high risk serious offender - Whether unacceptable risk that respondent will commit a serious offence if not subject to restriction order - Whether necessary to make restriction order to ensure adequate protection of community - Whether community can be adequately protected by imposition of supervision order - Whether the respondent will substantially comply with standard conditions of a supervision order

Legislation:

Criminal Code (WA)
Dangerous Sexual Offences Act 1995 (WA) (repealed)
High Risk Serious Offenders Act 2020 (WA)

Result:

Supervision Order made

Category:    B

Representation:

Counsel:

Applicant	:	Ms T Hollaway
Respondent	:	Ms A Fedele

Solicitors:

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

Cases referred to in decision:

Director of Public Prosecutions (WA) v GTR [2008] WASCA 187

Director of Public Prosecutions v Williams [2007] WASCA 206

Garlett v The State of Western Australia [2022] HCA 30

The Director of Public Prosecutions v Decke [2009] WASC 312

The State of Western Australia v Bellamy [2013] WASC 467

The State of Western Australia v Garlett [2021] WASC 387

The State of Western Australia v Hart [2019] WASC 4

The State of Western Australia v JPA [2024] WASC 225

The State of Western Australia v McCabe [2016] WASC 226

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

FORRESTER J:

Introduction

1. This is an application made by the State of Western Australia on 23 April 2024 for a restriction order to be made in respect of the respondent, JPA, pursuant to the High Risk Serious Offenders Act 2020 (WA) (HRSO Act).

2. On 21 June 2024 a preliminary hearing pursuant to s 46 of the HRSO Act was held before Quinlan CJ.[1]  Quinlan CJ was satisfied that there were reasonable grounds to believe that the court might find the respondent to be a high risk serious offender and ordered that the application for a restriction order be heard on 10 December 2024.

   [1] The State of Western Australia v JPA [2024] WASC 225.

3. The respondent was initially made subject to an interim detention order, but on 2 August 2024 Quinlan CJ ordered that the respondent be made subject to an interim supervision order pursuant to s 58(5) of the HRSO Act.[2]

   [2] Book of Materials for the Restriction Order Hearing, Volume 1, 145 (Book of Materials Vol 1).

4. On the application for a restriction order, the matters I must decide are:

   (1)whether the respondent is a high risk serious offender, within the meaning of s 7 of the HRSO Act; and, if so

   (2)whether to make an order that the respondent be detained in custody for an indefinite term for control, care or treatment (a continuing detention order)[3] or that he be released into the community subject to conditions that the court considers appropriate (supervision order).[4]

   [3] HRSO Act s 26.

   [4] HRSO Act s 27.

5. For the reasons below, I am satisfied that the respondent is a high risk serious offender, and that it is necessary that a restriction order should be made to ensure adequate protection of the community.  I have determined that he should be released into the community subject to conditions (supervision order) for a period of 3 years from 14 February 2025.

The application

1. When the application was made on 13 June 2024, the respondent was serving a term of 20 months' imprisonment for two offences of indecently dealing with a de facto child.[5]

   [5] Exhibit 1, Book of Materials, Vol 1, 1; The respondent was eligible for parole, but parole was refused: Book of Materials Vol 1, 31.

2. The respondent's sentence expired on 24 July 2024.

3. The offence of indecently dealing with a de facto child under the age of 16 years is a serious offence under the HRSO Act.[6]  As at the date of the application, the respondent was under a custodial sentence for that offence.  Accordingly, the respondent was, at the time the application was made, a 'serious offender under custodial sentence'[7] who was not a 'serious offender under restriction'[8] within the meaning of s 35 of the HRSO Act.

   [6] HRSO Act s 5,sch 1 item 26.

   [7] HRSO Act s 3, s 5.

   [8] HRSO Act s 3.

Materials

1. The State produced a Book of Materials comprised of three volumes, containing the criminal history of the respondent and detailed evidence relating to it, including statements of material facts and transcripts, the respondent's custodial history, program completion reports relating to the various programs undertaken by the respondent while in custody, parole and other assessment reports, and reports prepared for this hearing, namely:

   (1)report of Dr Peter Wynn Owen dated 19 November 2024;

   (2)report of Dr Dylan Galloghly dated 7 November 2024;

   (3)HRSO Treatment Options Report of Luke Carmichael dated 22 November 2024; and

   (4)Community Supervision Assessment Report of Mechele Carvell.

2. The State called Dr Wynn Owen, Dr Galloghly and Ms Carvell at the hearing of the application, and they were cross‑examined by the respondent's counsel.

3. After the reports of Dr Wynn Owen and Dr Galloghly were prepared, but before the hearing, the State provided to the experts a significant quantity of medical records for the respondent from 2012 until the present, and prison incident and other related records from 2012 until the present.  Unfortunately, instead of identifying which records were relevant and tendering only those, the State sought to tender all of the records.

4. Pursuant to s 84(5) of the HRSO Act, in this hearing the court may receive into evidence:

   (a)any document relevant to the antecedents or criminal record of the offender; or

   (b)anything relevant contained in the official transcript of any relevant proceeding against the offender; or

   (c)any relevant material that was tendered to the court, or that informed the court, in a relevant proceeding against the offender; or

   (d)any relevant material of the kind mentioned in section 7(3) relating to the offender.

5. There is a great deal of material in the Book of Materials which, as far as I could tell, was of no relevance. There is other material which is of very limited value in the form it is presented, such as lengthy medical notes, but which could technically fall within s 7(3), particularly s 7(3)(j). Accordingly, I provisionally received the Book of Materials on the basis that I would indicate which materials I would consider at a later stage.

6. Having heard the evidence of the witnesses, I consider that the following pages of Volume 2 of the Book of Materials should be excluded as being irrelevant: 558 ‑ 604 inclusive; 607 ‑ 624 inclusive; 627 ‑ 640 inclusive; and 643 ‑ 708 inclusive.  I will admit the medical notes at pages 764 ‑ 1273 of Volume 2 and pages 1274 ‑ 1477 solely on the basis that Dr Wynn-Owen gave general evidence about the pattern of drug‑seeking and use on the part of the respondent based on a perusal of those pages.  However, in the absence of specific expert evidence as to the contents of those documents, I decline to otherwise give consideration to them.

Index offence

1. The offence which renders the respondent liable to be dealt with under the HRSO Act (the index offence) is indecently dealing with a de facto child, contrary to s 329 of the Criminal Code (WA).

2. In October 2022, the respondent was married and living in Rangeway, near Geraldton.  The respondent's wife had a 16 year old daughter, whom the respondent had then known for about two years.  On or about 27 October 2022, in the darkness of night, the 48 year old respondent went into the complainant's bedroom, where she lay sleeping.  He sat on the end of her bed, and woke her by putting his hand on her.  She shone her mobile phone flashlight on him.  The respondent moved his hand to the complainant's vagina and rubbed it on the outside of her clothing with his index finger for a short time.  He then walked out, leaving the complainant crying.  The following day he sent three cheerful text messages to the complainant, without reference to what he had done.

3. The respondent later breached the protective bail condition imposed on him by contacting the complainant and was remanded in custody.

4. On 5 February 2024, the respondent was sentenced to 20 months' imprisonment, backdated to 27 March 2023.  He was made eligible for parole.

Statutory framework and legal principles

1. The objects of the HRSO Act are:

   (a)to provide for the detention in custody or the supervision of high risk serious offenders to ensure adequate protection of the community and of victims of serious offences; and

   (b)to provide for continuing control, care or treatment of high risk serious offenders.[9]

   [9] HRSO Act s 8.

2. If the court hearing a restriction order application finds that an offender is a high risk serious offender, the court must make a continuing detention order or, except as provided in s 29, a supervision order. In deciding whether to make a continuing detention order or a supervision order, the paramount consideration is the need to ensure adequate protection of the community.[10]

   [10] HRSO Act s 48(2).

3. The term 'high risk serious offender' is defined in s 7(1) of the HRSO Act as follows:

   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.

4. A 'restriction order' means a continuing detention order or a supervision order.[11]  A continuing detention order is an order that the offender be detained in custody for an indefinite term for control, care or treatment.[12] A supervision order is an order that the offender, when not in custody, is to be subject to stated conditions that the court considers to be appropriate in accordance with s 30 of the HRSO Act.[13]

   [11] HRSO Act s 3.

   [12] HRSO Act s 3, s 26(1).

   [13] HRSO Act s 3, s 27(1).

5. Relevantly, an offence is a 'serious offence' if it is an offence listed in sch 1 div 1 of the HRSO Act.[14]

   [14] HRSO Act s 5.

6. The State has the onus of satisfying the court in accordance with s 7(1).[15]

   [15] HRSO Act s 7(2).

7. When considering whether it is satisfied that a person is a high risk serious offender, the court must have regard to the factors set out in s 7(3) of the HRSO Act.

8. The jurisprudence established in respect of the Dangerous Sexual Offences Act 1995 (WA) is relevant in construing and applying the HRSO Act, with necessary adaptation.[16]

   [16] The State of Western Australia v ZSJ [2020] WASC 330 [31].

9. The powers conferred by the HRSO Act are not to be exercised for the purpose of imposing additional punishment on the offender, but rather for the ultimate purpose of protecting the community.[17]

   [17] Garlett v The State of Western Australia [2022] HCA 30 [55] ‑ [56].

10. The words 'high degree of probability' import more than a finding on the balance of probabilities but less than a finding of beyond reasonable doubt but are otherwise not capable of further definition.[18]  The court is required to identify what it is that constitutes the risk and what makes it unacceptable, thereafter considering whether or not those factors have been proved to the requisite standard by acceptable and cogent evidence.[19]

    [18] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 [28] - [34].

    [19] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 [34].

11. In Garlett v The State of Western Australia,[20] the court said:

    Whether or not a risk that an offender will commit a 'serious offence' is 'unacceptable' is a question which requires the court's judgment as to the nature and extent of the harm said to be in prospect.  Further, whether a restriction order is 'necessary' to protect against that risk requires recognition of what would otherwise be the offender's entitlement to be at liberty, an entitlement not lightly to be denied.

    [20] Garlett v The State of Western Australia [2022] HCA 30 [73].

12. The meaning of 'unacceptable risk' was considered by Wheeler JA in Director of Public Prosecutions (WA) v Williams[21] in the following terms:

    In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.

    [21] Director of Public Prosecutions v Williams [2007] WASCA 206 [63].

13. In The State of Western Australia v Garlett,[22] Corboy J considered that s 7(1) of the HRSO Act (in conjunction with s 48) requires the court to assess two separate matters. The first is whether a risk that an offender will commit a serious offence is unacceptable. The second is, if the risk is found to be unacceptable, whether it is necessary to make a restriction order to ensure adequate community protection against a risk that the offender will commit a serious offence. His Honour stated:

    [T]he court should choose, as between a continuing detention order and a supervision order, the order that is 'least invasive or destructive' of a person's right to be at liberty while ensuring an adequate degree of protection of the community.  That constraint also applies in determining the non-standard conditions (if any) of a supervision order.  Moreover, as Hall J pointed out in Director of Public Prosecutions v Decke,[23] '[i]t cannot simply be assumed that the most assured preventative is detention and, therefore, the protection of the community will always favour such an order'.[24]

    [22] The State of Western Australia v Garlett [2021] WASC 387.

    [23] The Director of Public Prosecutions v Decke [2009] WASC 312 [14].

    [24] The State of Western Australia v Garlett [2021] WASC 387 [143].

14. The court cannot make a supervision order in relation to an offender unless satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order, the onus of establishing which is on the offender.[25]

    [25] HRSO Act s 29.

15. The standard conditions of a supervision order are set out in s 30 of the HRSO Act and include the requirement that the offender not commit a serious offence during the period of the order.[26]

    [26] HRSO Act s 30(2)(f).

16. In determining whether an offender 'will substantially comply with the standard conditions of the order':

    [t]he court must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with and will enable the attainment of the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious … offence.[27]

    [27] The State of Western Australia v Hart [2019] WASC 4 [52].

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

Antecedents and criminal history

Family background and relationships

1. The respondent was born in Western Australia on 13 March 1974, making him now 50 years of age.  He is the youngest of five children to his parents, who separated when he was two years old.[28]  His mother subsequently re‑partnered and had another son.[29]

   [28] Book of Materials Vol 1, 348.

   [29] Book of Materials Vol 1, 348.

2. The respondent has said he was removed from his parents as a baby due to issues of violence and alcohol abuse but was then returned to his mother until the age of 6 years.[30]  He told Dr Wynn Owen that there was no violence between his parents.[31]  At the age of 6 he was again removed, and he remained in the care of the State until he reached the age of 18 years.[32]  He had numerous foster placements and occasionally stayed with his mother.  However, her home was very unstable, and he never felt safe.[33]  His stepfather was frequently violent towards his mother, including in his presence.[34]

   [30] Book of Materials Vol 1, 348.

   [31] Exhibit 2, Book of Materials, Vol 3, (Book of Materials Vol 3) 1520 [12].

   [32] Book of Materials Vol 1, 348.

   [33] Book of Materials Vol 1, 348.

   [34] Book of Materials Vol 3, 1520 - 1521 [12].

3. The respondent was in his mother's care when he was sexually abused by a family friend, which continued until he was 14 years old.  He was initially not believed,[35] but the offender was ultimately convicted in 2007.[36]

   [35] Book of Materials Vol 3, 1521 [15].

   [36] Book of Materials Vol 1, 348.

4. The respondent's father doubted his paternity and did not want him.  The respondent maintained some contact with him until he died in 2013.[37]  The respondent does have regular contact with his siblings.[38]

   [37] Book of Materials Vol 1, 348.

   [38] Book of Materials Vol 1, 357.

5. The respondent's first serious relationship was at the age of 18 years, and he married his partner, who was more than 20 years older, a year later.  They were together for 16 years and had two children, now in their late 20s.  According to the respondent, the marriage ended as a result of his drug use, lack of employment and generally irresponsible behaviour.  The respondent claimed that there was no violence in the relationship, but admitted there were volatile arguments at times.  When the relationship ended, he harassed his former partner and she obtained a violence restraining order against him.  He says he is now on good terms with her,[39] but his contact with her and his children waned after he met his second wife, who disapproved of him having ongoing contact.[40]

   [39] Book of Materials Vol 1, 349 - 350.

   [40] Book of Materials Vol 3, 1545 [19].

6. The respondent met his second wife in 2009 and they married, again after only a year.  According to the respondent, this was due to pressure from his wife.  However, the respondent felt that his wife's parents did not approve of him.  In around 2012 they moved closer to his wife's family for added support with their young child, but the relationship between the respondent and his wife's parents deteriorated, and the respondent developed paranoid beliefs which were then exacerbated by the respondent increasingly using amphetamines.[41]

   [41] Book of Materials Vol 1, 350.

7. The respondent said he felt sexually inadequate in his second marriage, which appears to have been the result of 'mismatched' sex drives and interests.[42]

   [42] Book of Materials Vol 1, 350.

8. Following the conduct which resulted in his 2014 sentence,[43] the respondent no longer has access to the children from that relationship[44] and decided not to seek access via the courts.[45]

   [43] See paragraphs [60] - [70].

   [44] Book of Materials Vol 1, 350.

   [45] Book of Materials Vol 3, 1546 [20].

9. The respondent met his third wife in Geraldton in 2019, shortly after being released from prison, and she asked him to move in with her.  The respondent claims that his wife was jealous of any attention from other women, and that he asked her to marry him because she asked him to, and he felt obliged.[46]  They have one child together, a daughter who is now 4 years old.[47]  He is not presently permitted to have contact with his wife, his daughter or his wife's other children.

Education and employment

[46] Book of Materials Vol 3, 1522 [15].

[47] Book of Materials Vol 3, 1546 [21].

1. The respondent attended a number of primary schools and reported being teased and being a loner.  He attended an Open Learning School.[48]  However, he never did well academically, frequently truanted and was expelled on a number of occasions.  He only completed year 8.[49]

   [48] Book of Materials Vol 1, 349.

   [49] Book of Materials Vol 1, 357.

2. The respondent has held numerous positions in various industries.[50]  The longest he has held a job is 12 months.  He has described truck driving as his 'favourite occupation' and particularly likes the solitude of working alone.[51]

Substance abuse

[50] Book of Materials Vol 1, 349.

[51] Book of Materials Vol 3, 1546 [25].

1. The respondent has reported first drinking alcohol and smoking cannabis at about 11 years of age,[52] although he told Dr Galloghly he first drank at the age of 13[53] and told Dr Wynn Owen his first alcohol exposure was at age 14.[54]  He engaged in binge drinking for most of his life until he married his second wife and attempted to curb his drinking.  He used cannabis heavily until 2009, when he largely ceased due to its adverse effects,[55] although he told Dr Galloghly he 'periodically uses as an adult'.[56]

   [52] Book of Materials Vol 1, 351.

   [53] Book of Materials Vol 3, 1547 [29].

   [54] Book of Materials Vol 3, 1519 [11].

   [55] Book of Materials Vol 1, 351.

   [56] Book of Materials Vol 3, 1547 [30].

2. The respondent used amphetamine from the age of 18 years, but his use became regular at 25 years of age, with intermittent use ever since.  He has had periods of excessive use and has claimed that amphetamines have destroyed his life.[57]

   [57] Book of Materials Vol 1, 351.

3. The respondent told Dr Wojnarowska that he had not used amphetamines after 2008.[58]  However, this did not account for the dexamphetamines he was using at the time of the 2012 and 2013 offences, and is inconsistent with him telling Dr Galloghly that he was using methylamphetamine at the time of those offences.[59]

   [58] Book of Materials Vol 1, 359.

   [59] Book of Materials Vol 3, 1552 [55].

4. The respondent was treated for opiate withdrawal after he arrived in prison in 2022.[60]  This runs counter to his claim to Dr Galloghly that he had been abstinent from alcohol and drugs since 2013.[61]

Medical and Psychiatric History

[60] Book of Materials Vol 3, 1519 - 1520 [11].

[61] Book of Materials Vol 3, 1547 [33].

1. The respondent has a long history of mental health issues dating back to his adolescence.  He reported multiple admissions to the Alma Street Clinic since he was aged 17 (a claim supported by medical records), multiple admissions to other hospitals, and being detained under the Mental Health Act in Adelaide in 2000.[62]

   [62] Book of Materials Vol 3, 1548 [35].

2. The respondent was admitted to Fremantle Hospital in 2004 after he presented with suicidal ideation in the context of relationship problems.  At that time, he was diagnosed with polysubstance abuse (recent amphetamine use) and Borderline Personality Disorder.  He was noted to have a history of amphetamine induced psychosis.  He was referred to drug counselling and to a community mental health service.[63]

   [63] Book of Materials Vol 1, 358.

3. The respondent had a similar admission in 2007 again related to psychosocial pressures and a marital breakup.[64]

   [64] Book of Materials Vol 1, 359.

4. In 2011 the respondent overdosed with alprazolam while intoxicated with alcohol.  He was ultimately admitted to Graylands for two weeks, where the diagnosis was unspecified personality disorder and alcohol abuse.  He was again referred for counselling.[65]

   [65] Book of Materials Vol 1, 359.

5. The respondent was admitted to the Bentley Hospital psychiatric inpatient unit in March 2012 after he had engaged in 'unusual' behaviour including threatening to drive into a tree and installing cameras and audio recording equipment in the house believing his wife to be having an affair and that his child may be the victim of abuse.  He denied having used drugs or alcohol for a year.[66]

   [66] Book of Materials Vol 3, 1518 [10].

6. The respondent reported suffering from depression since he was 14 years of age.  He had no treatment related to his childhood abuse until 2007, at which time he was prescribed Mirtazapine.  He has been on other medications since, including Quetiapine (an antipsychotic and mood stabiliser) and Ativan.  He admitted paranoia from smoking amphetamines, but denied being admitted as a result.

7. In 2012 the respondent was prescribed dexamphetamine for adult type Attention‑Deficit Hyperactivity Disorder.  However, he became more aggressive and started having memory problems and paranoia.  At the time of the 2012 and 2013 offending, he was drinking daily and taking dexamphetamine.  He ceased treatment in March 2013.[67]

   [67] Book of Materials Vol 1, 359.

8. Prison records detail a number of presentations to mental health nurses in custody, but no specific treatment was indicated.[68]  There are also indications in the prison medical records of alleged manipulation and drug seeking.[69]

   [68] Book of Materials Vol 3, 1517 [10].

   [69] Book of Materials Vol 3, 1523 [16].

9. During his imprisonment for the index offence, the respondent reported having surgery due to diverticulitis, from which he had recovered well[70] and presently claims to have no medical issues.[71]

Criminal history

[70] Book of Materials Vol 1, 527.

[71] Book of Materials Vol 3, 1548 [34].

1. The respondent has an extensive criminal history, with convictions primarily in Western Australia.  However, he also has criminal records in the Australian Capital Territory, Queensland and South Australia, albeit relatively minor ones.

Other serious and related offences

1. In 2014, the respondent was convicted of four other serious offences, namely three offences of aggravated sexual penetration without consent, and aggravated stalking with intent to intimidate, committed in 2012 and 2013 against his second wife.

2. The respondent was convicted after trial by jury of the three sexual penetration offences.  At the same time, the respondent was convicted of three offences of making a threat to kill, and one offence of aggravated assault occasioning bodily harm.  The respondent pleaded guilty to the charge of aggravated stalking with intent to intimidate.  He later pleaded guilty to 55 charges of breaching a violence restraining order (which formed part of the facts of the stalking offence), one charge of making a threat to harm and one charge of aggravated common assault.  The respondent was sentenced on 23 May 2014 on the following factual basis.

3. On 27 July 2012, the respondent woke his wife by placing both hands around her throat and neck and said words to the effect of, 'I'm going to kill you.  This is it.  You're a dead cunt.  I can't believe what you've done.'  The child of the complainant and the respondent was present in the house at the time.[72]

   [72] Book of Materials Vol 1, 390; Threat to kill, contrary to s 338B(a) Criminal Code (WA).

4. On or about 16 November 2012, the respondent pushed his pregnant wife backwards so hard that she was thrown into the door frame, bounced off and fell.  As she did so, she hit her leg and sustained a sprained ankle.  Again, their child was present in the house.[73]

   [73] Book of Materials Vol 1, 391; Aggravated assault occasioning bodily harm, contrary to s 317(1) Criminal Code (WA).

5. On a date between mid‑November and mid‑December 2012, the respondent's wife was lying on her back.  She was heavily pregnant.  The respondent headbutted her, held her to the bed, forced her legs apart, ripped off her shorts and underwear and put his hand into her vagina.[74]  She told him to stop, and that it was hurting.  When he did remove his hand, he smelt his fingers and accused the complainant of being unfaithful to him.  The child was again present in the house.

   [74] Book of Materials Vol 1, 391; Aggravated sexual penetration without consent, contrary to s 326 Criminal Code (WA).

6. On 17 December 2012, the respondent and the complainant argued.  The respondent accused the complainant, who was then eight months' pregnant, of sleeping with other men.  Fearing for her safety, the complainant took her young child and attempted to leave the house.  The respondent stopped her and tried to push her back into the house by forcefully pushing her in the chest and stomach with both hands, causing her to stumble backwards.[75]  He then slapped her in the head and said he would hunt her down and kill her, make sure she was dead, and kill her father.[76]

   [75] Book of Materials Vol 1, 370; Aggravated common assault, contrary to s 313 Criminal Code (WA).

   [76] Book of Materials Vol 1, 391; Threat to kill, contrary to s 338B(a) Criminal Code (WA).

7. Between 29 January and 17 February 2013, the complainant had only recently returned home from hospital after giving birth to their second child.  The respondent came home and woke her up, told her he was going to kill her and finish her off for good.  He put a leg between her legs and said he knew she had been unfaithful but needed to prove it.  He shoved her underpants to the side and inserted his hand or fist into her vagina.[77]  It felt to her like it was touching her cervix, and she said it was hurting.  The complainant was in complete agony and concerned for her stitches.  The respondent pulled his hand out, smelt it, and then shoved his penis forcefully into her vagina,[78] which she again told him hurt her.

   [77] Book of Materials Vol 1, 391; Aggravated sexual penetration without consent, contrary to s 326 Criminal Code (WA).

   [78] Book of Materials Vol 1, 391; Aggravated sexual penetration without consent, contrary to s 326 Criminal Code (WA).

8. On 17 February 2013, the complainant said she was going to leave the respondent.  He told her he would kill her if she left, and he would make sure she and her children were dead, and he was going to go to her father's to 'knock his block off'.[79]

   [79] Book of Materials Vol 1, 391 - 392; Threat to kill, contrary to s 338B(a) Criminal Code (WA).

9. On 18 February 2013, the complainant left the respondent.  He was personally served with a violence restraining order on 27 February 2013.  Between that date and 26 March 2013 the respondent breached the violence restraining order on 130 individual occasions by sending text or voicemail messages to the complainant's phone.  Some of the messages were overtly threatening.  He pretended to be the complainant's brother, and contacted the women's refuge where the complainant was sheltering, and discovered the childcare facility where his children were being cared for, resulting in them needing to be relocated.  He also harassed the complainant's family in an attempt to get the complainant to contact him.[80]

   [80] Book of Materials Vol 1, 392; Aggravated stalking with intent to intimidate, contrary to s 338E(1) Criminal Code (WA), Book of Materials Vol 1, 390; Threat to harm contrary to s 338B(b) Criminal Code (WA).

10. The sentencing judge found that, at the time of the offending, he was consuming both alcohol and illicit substances.[81]

    [81] Book of Materials Vol 1, 392.

11. For this offending, the respondent was sentenced to a total effective sentence of 8½ years' imprisonment, commencing on 26 March 2013.  He was made eligible for parole.[82]

    [82] Book of Materials Vol 1, 397.

12. In February 1992, at the age of 17 years, the respondent was convicted of attempted stealing with violence. The facts of that offence have not been provided to me. While this offence does constitute a serious offence under the HRSO Act, having regard to the age of the respondent at the time and the different nature of the offence to his other serious offending, I do not regard it as relevant to this application.

Other offending

1. The respondent has also been convicted of numerous traffic offences, including dangerous and reckless driving, stealing a motor vehicle, possession of prohibited drugs and a smoking implement, assault public officer, criminal damage and trespass.

2. At the same time as his May 2014 sentencing for offences against his former wife, the respondent was also convicted of fraud and stealing.

3. In particular, his criminal record includes nine offences of breach of bail, two offences of breaching a police order, and two charges of breaching a protective bail condition.

4. In April 2006, the respondent was served with a police order after he attended his (first) former wife's house and acted aggressively and abusively towards her.  He breached that order on two occasions by attending his former wife's house.[83]

   [83] Book of Materials Vol 1, 450 - 457.

5. The charges of damage, trespass, and assault public officer occurred in 2008, five years after the breakdown of the respondent's first marriage.  In July 2008, he went to his former wife's house and broke in by smashing a window.  He went to sleep on a couch in the living room.  When police attended, he punched one of the officers.[84]

   [84] Book of Materials Vol 1, 459 - 472.

6. The two offences of breach of protective bail condition occurred while the respondent was on bail for the offence of indecently dealing with a de facto child.  A protective condition of his bail was that he not contact the complainant or her mother.

7. Less than a month after he signed the bail undertaking, the respondent called the complainant's phone and said, 'Help me' before the complainant terminated the call.[85]  He was arrested and released.  The following day, he called the complainant's mother six times.[86]

Conduct while in custody

[85] Book of Materials Vol 1, 500 - 501.

[86] Book of Materials Vol 1, 498, 499 - 503.

1. The respondent tested positive for opiates in custody in September 2015.[87]  During his most recent sentence, the respondent has been found guilty of one prison charge, for testing positive to buprenorphine, committed on 9 October 2023.[88]  Other tests conducted on 11 May 2023 and 1 May 2024 were negative.[89]

   [87] Book of Materials Vol 2, 763.

   [88] Book of Materials Vol 1, 30, 89.

   [89] Exhibit 2, Book of Materials, Vol 2 (Book of Materials Vol 2), 763.

2. Evidence was also given that in February 2015 the respondent had been found in possession of a note containing a threat to do harm to another person outside custody,[90] that he had been aggressive to a nurse regarding his medication in June 2016,[91] and that in November 2016, he was alleged to have threatened to kill another prisoner's children.[92]

Previous Response to Supervision

[90] Book of Materials Vol 2, 605 - 606.

[91] Book of Materials Vol 2, 625 - 626.

[92] Book of Materials Vol 2, 641 - 642.

1. The respondent was denied parole on 2 May 2024.  A post‑sentence supervision order was made in respect of the respondent,[93] but that ceased on the imposition of the interim supervision order, to which the respondent has been subject since 2 August 2024.

   [93] Book of Materials Vol 1, 31.

2. In September 2019, the respondent was granted parole after serving the non‑parole period of the sentence imposed in 2014, having developed a suitable parole plan and completed the Pathways Program and the Stopping Family Violence Program.[94]  He satisfactorily completed his two years on parole.

   [94] Book of Materials Vol 1, 32.

3. The respondent also satisfactorily completed a parole order in 2009, but breached parole in 2008 by reoffending.[95]  He also breached an intensive supervision order by reoffending in 2008.[96]

Previous Reports

Parole Assessment report dated 23 April 2024

[95] Book of Materials Vol 1, 33 - 34.

[96] Book of Materials Vol 1, 525.

1. The respondent reportedly expressed 'perfunctory attitudes' towards his offending, stating that he felt 'horrible' and 'hates himself', reflecting on his own childhood abuse.[97]

   [97] Book of Materials Vol 1, 524.

2. The respondent had hopes that he and his wife would resume their relationship upon his release from custody, but said he did not want to pressure his wife and would respect her choice.  The respondent's wife reportedly desired no further contact with him.

3. This report references a Clinical Assessment Report dated 21 January 2019, which indicated that the respondent would be unlikely to benefit from further sex offender programs, given his improved insight into his behaviours.  The author did not consider the respondent's association with an outlaw motorcycle gang to be a risk factor.[98]

   [98] Book of Materials Vol 1, 526.

4. The respondent proposed to reside with his mother and stepfather, but that property was not considered suitable, due to the potential for victim contact.  The respondent then proposed an alternative location, which was not assessed.

5. The respondent did not have employment lined up for his release, but was confident he would be able to gain it without difficulty.[99]

   [99] Book of Materials Vol 1, 527.

6. Ultimately, the respondent was not recommended for release on parole, due to his proposed accommodation, the fact that he had offended despite having completed programs and intervention in the past, and his limited protective factors.[100]

Clinical Re-Assessment Report dated 21 January 2019

[100] Book of Materials Vol 1, 529.

1. This re‑assessment was progressed on the basis that the respondent was said to have changed his stance of denial.  The respondent is said to have told the author of the report that, as a result of his previous program attendance, he had come to accept responsibility for the sexual component of his offending behaviour against his wife.  He was questioned about inappropriate behaviour towards female staff and prisoners in mid‑2017, referenced in the Pathways report and was 'forthcoming' in his explanation although appeared to minimise, or demonstrate lack of insight into, his role.[101]

   [101] Book of Materials Vol 3, 1486 - 1487.

2. The respondent also claimed to be extricating himself from the outlaw motorcycle gang of which he was a member.[102]

   [102] Book of Materials Vol 3, 1487.

3. On this basis, it was considered that the respondent would not make further significant gains by attending further programs, although he continued to have some outstanding treatment needs.[103]

Psychological report of Ms Cinzia Zuin dated 7 April 2014

[103] Book of Materials Vol 3, 1488.

1. In her report prepared for the respondent's 2014 sentencing, Ms Zuin noted that the respondent tended to portray himself in an overly positive light.  Despite him impressing as being overly preoccupied in apologising for his behaviour, it was evident the respondent lacked insight into his conduct.[104]

   [104] Book of Materials Vol 1, 346.

2. The respondent claimed to have no recollection of sexually and physically assaulting his wife, or making threats to kill her.  He did admit breaching the violence restraining order.[105]  He accepted responsibility for his offending after the jury verdict, and said he felt like a 'low life'.  However, to Ms Zuin his expressions of remorse and empathy were not convincing and seemed overly exaggerated.[106]

   [105] Book of Materials Vol 1, 346.

   [106] Book of Materials Vol 1, 347.

3. Ms Zuin expressed concern that, despite the offences occurring on different dates, the respondent had no recollection of any of them, which was unlikely to be explained by methylamphetamine intoxication and he indicated it was unlikely he was intoxicated.  She suggested the respondent's lack of recall was a strategy in self‑preservation based on his struggle to accept he was capable of committing those offences.[107]

   [107] Book of Materials Vol 1, 346.

4. The respondent claimed his wife constantly demeaned and belittled him for being a poor provider and not being able to hold down a job.  Ms Zuin opined that the respondent likely felt inadequate and emasculated.  He said she frequently threatened to leave him, and she told him she had had an affair.  It was likely therefore that he resorted to the violence in a bid to reclaim a sense of control and exert power over his wife.  Emotional dysregulation appeared to be a significant issue.[108]

   [108] Book of Materials Vol 1, 347.

1. The respondent told Ms Zuin that he regards his childhood as being characterised by sadness and depression.  He admitted harbouring anger and resentment towards his mother for failing to provide him with a stable and normal childhood, while regarding their relationship as being reasonably close.[109]

   [109] Book of Materials Vol 1, 348.

2. Ms Zuin suggested that the respondent's personality development and interpersonal relationships could have been impacted by issues of rejection and abandonment and having felt unloved and unwanted.  Individuals who experience such feelings in childhood will often have dysfunctional relationships due to a desperate yearning to be loved and accepted and can behave desperately in relationships without any insight.[110]

   [110] Book of Materials Vol 1, 348.

3. In Ms Zuin's view, the sexual abuse the respondent suffered as a child is likely to have disrupted his normal sexual development.[111]

   [111] Book of Materials Vol 1, 349.

4. Testing produced results consistent with Ms Zuin's impression that the respondent has a depressive illness with symptoms of anxiety, which she considered unsurprising given his childhood circumstances.  Dependent personality traits were also notable.  Individuals with such traits typically compromise their own needs and desires in order to retain the affections of those around them as a way of securing stability, protection and acceptance.  When their need for love and affection is thwarted, they can engage in desperate behaviours to stop a loved one abandoning them and tend to cope poorly when relationships end.[112]

   [112] Book of Materials Vol 1, 351.

5. The same testing also revealed self‑defeatist personality features, suggesting that the individual assumes things will always go wrong, and has a drug and alcohol dependency.[113]

   [113] Book of Materials Vol 1, 351.

6. Ms Zuin also administered the Static‑99 risk assessment tool to assist in assessing the respondent's risk of sexual reoffending.  The respondent's score placed him in the medium‑low risk category, but there were other risk management factors which gave rise to concern in the respondent's case.[114]

   [114] Book of Materials Vol 1, 352.

7. Ms Zuin recommended the respondent participate in an intensive sex offender treatment program or intensive domestic violence program, together with treatment for drug and alcohol dependency.  He also required psychiatric intervention to assist in the stabilisation of his mental health.[115]

Psychiatric report of Dr Gosia Wojnarowska dated 20 May 2014

[115] Book of Materials Vol 1, 353.

1. Dr Wojnarowska also prepared her report for the respondent's 2014 sentencing.  Again, the respondent claimed to have no memory of the offending, which Dr Wojnarowska did not accept, given the lack of any impairment of memory functioning otherwise.[116]

   [116] Book of Materials Vol 1, 357.

2. While the respondent said he accepted the jury's verdict, Dr Wojnarowska identified 'underlying anger' at his conviction.  However, he said that 'if the offences had really occurred', he was ashamed and able to express some empathy for the complainant.[117]

   [117] Book of Materials Vol 1, 357.

3. The respondent admitted alcohol was a factor in his offending and denied using illicit substances.[118]  This is at odds with what he told Ms Zuin.  He also claimed multiple life stressors and accepted he was 'probably paranoid' when he thought his wife was unfaithful.[119]

   [118] Book of Materials Vol 1, 356.

   [119] Book of Materials Vol 1, 356 - 357.

4. Dr Wojnarowska's diagnosis was alcohol dependence, amphetamine induced psychosis (in remission), and cluster B personality disorder (antisocial and borderline).[120]  She did not consider him to suffer from a major mental disorder.[121]

   [120] Book of Materials Vol 1, 361.

   [121] Book of Materials Vol 1, 362.

5. According to Dr Wojnarowska, the risk of the respondent reoffending in a sexual manner was low, as there was no enduring pattern of offending, and no evidence of deviant sexual interest or psychopathy.  However, his risk of generalist reoffending was high, particularly if he did not address his substance misuse.[122]

   [122] Book of Materials Vol 1, 363.

6. Dr Wojnarowska also recommended the respondent be assessed for his suitability to the medium intensity Sex Offender Treatment Program, individual psychological intervention, and intensive drug and alcohol counselling.[123]

Report of Dr Sam Febbo dated 19 August 2007

[123] Book of Materials Vol 1, 363.

1. Dr Febbo assessed the respondent for the purposes of a sentencing for traffic offending.  The respondent said he did not recall the offence at all, claiming he had been prescribed Xanax, a benzodiazepine, and took six tablets (despite having been prescribed 'one or two').  He said he had not wanted to be around, having just been released from prison.[124]

   [124] Book of Materials Vol 1, 505 - 506.

2. The respondent detailed numerous previous suicide attempts, while denying that he had specifically tried to self‑harm on that occasion.[125]

   [125] Book of Materials Vol 1, 506 - 507.

3. The respondent was assessed as having significant depressive and anxiety symptoms of fluctuating severity.  Dr Febbo suggested some of his symptoms fell within the category of Post Traumatic Stress Disorder and alcohol and substance abuse/dependence.  He also noted evidence of marked personality disturbance; Dr Febbo was of the view that the respondent fulfilled the diagnostic requirements for Antisocial Personality Disorder and Borderline Personality Disorder.[126]

Reports prepared under s 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section.

Psychiatric report of Dr Peter Wynn Owen dated 18 November 2024

[126] Book of Materials Vol 1, 510.

1. Dr Wynn Owen is a Consultant Forensic Psychiatrist who has experience in forensic psychiatry in secure hospital, community and prison settings.  He has undertaken accredited training in a range of tools for risk assessment of violent and sexually violent individuals.[127]

   [127] Book of Materials Vol 3, 1513 [1].

2. The respondent was polite and cooperative at interview.[128]  However, he told Dr Wynn Owen that the offending of which he had been convicted did not occur, and that the complainant and her mother had collaborated to falsely accuse him.  Given his stance of denial, he displayed no victim empathy.[129]

   [128] Book of Materials Vol 3, 1527 [31].

   [129] Book of Materials Vol 3, 1516 - 1517 [8], transcript, The State of Western Australia v JPA, Supreme Court of Western Australia, 10 December 2024, 46 (ts 10 December 2024).

3. The respondent also denied sexually assaulting his former wife, saying that when they did have sexual intercourse, he believed it to be consensual.  He acknowledged sending multiple threatening text and telephone messages to his former wife, attributing this behaviour to use of methylamphetamine and distress at being unable to see his children.  He expressed remorse but no victim empathy.[130]

   [130] Book of Materials Vol 3, 1516 - 1517 [8], ts 10 December 2024, 49.

4. The respondent said he did not believe himself to present a risk of future serious offending.  He acknowledged past problems with alcohol and drugs but said he managed while on the interim supervision order by listening to music, gardening and reading.  He also referred to the fact that he has commenced substance use counselling with a local service, and counselling for past trauma.[131]  He has found employment as a truck driver.[132]

   [131] Book of Materials Vol 3, 1526 [26].

   [132] Book of Materials Vol 3, 1527 [27].

5. The respondent told Dr Wynn Owen that he would abide by all conditions imposed as part of a supervision order under the HRSO Act, even if his convictions were the result of a 'set up'.[133]

   [133] Book of Materials Vol 3, 1527 [29].

6. Dr Wynn Owen was of the view that the respondent met the diagnostic criteria for Borderline Personality Disorder, which is a pervasive pattern of instability of interpersonal relationships, self‑image and affects and marked impulsivity beginning in early adulthood.  This was indicated by:

   (a)the pattern of unstable and intense interpersonal relationships characterised by alternating between extremes of idealisation and devaluation;

   (b)impulsivity (demonstrated by substance abuse and reckless driving);

   (c)recurrent suicidal behaviour gestures or threats;

   (d)inappropriate intense anger or difficulty controlling anger; and

   (e)transient stress related paranoid ideations or severe dissociative symptoms.[134]

   [134] Book of Materials Vol 3, 1527 [32].

7. In the respondent's case, his pattern of behaviours appears to come to the fore when he is under stress.[135]

   [135] ts 10 December 2024, 49 - 50.

8. According to Dr Wynn Owen, the respondent also exhibits antisocial personality traits, namely:

   (a)failure to conform to social norms with respect to lawful behaviours;

   (b)impulsivity or failure to plan ahead; and

   (c)reckless disregard for the safety of self or others.[136]

   [136] Book of Materials Vol 3, 1528 [32].

9. Finally, Dr Wynn Owen assessed the respondent as having substance use disorder.  He noted that the respondent now appears to have a good awareness of his problems with illicit substances but does not appear to demonstrate an understanding of his use of prescribed medications, such as benzodiazepines and analgesics,[137] which he was also using to manage negative emotional affect, difficult emotional states and stress.[138]

   [137] ts 10 December 2024, 51.

   [138] ts 10 December 2024, 51.

10. Dr Wynn Owen did consider whether the respondent has functional neurological disorder or conversion disorder, being a mental disorder which presents with physical symptoms.  However, that is a diagnosis of exclusion, and could not be made on the materials available.[139]

    [139] ts 10 December 2024, 53.

11. Having reviewed the respondent's prison incident records, Dr Wynn Owen considered that the threats of violence suggested a willingness on the part of the respondent to harm someone to achieve a particular end, and a capacity to use threatening and intimidating language towards women and to have violent thought and/or attitudes to women at times.[140]

    [140] ts 10 December 2024, 55 - 56.

12. Dr Wynn Owen notes that reoffending risk cannot be accurately predicted, but said that the most reliable indicator of future behaviour is past behaviour, particularly if there is an established and enduring pattern of behaviour.  Future offence risk can be modified by a range of other factors.  A structured professional judgment (SPJ) approach has been demonstrated to be a more accurate method of risk assessment.[141]

STATIC-99R

[141] Book of Materials Vol 3, 1528 [34].

1. Dr Wynn Owen administered the Static-99R (2016 revision, with updated 2021 recidivism estimates), an actuarial tool designed to indicate likelihood of future sexual offending by a person who has previously committed a sexual offence.[142] The estimates relate to the likelihood of committing any sexual offence, not necessarily a 'serious' offence within the meaning of the HRSO Act (although most sexual offences are serious offences under the HRSO Act).[143]

   [142] ts 10 December 2024, 73.

   [143] ts 10 December 2024, 73.

2. The respondent's score was in the 'average' range.  Individuals released from prison with the same score as the respondent had an average 5 year sexual recidivism rate of 6.5% and a 10 year rate of 10.2%.[144]  That means that in a five year period, 93.5% of individuals with the same score as the respondent would not reoffend.[145]  Over 10 years, 89.8% would not reoffend.

   [144] Book of Materials Vol 3, 1528, ts 10 December 2024, 73.

   [145] ts 10 December 2024, 73.

3. 'Average' or 'moderate' risk in this case means average for a person who has previously committed a sexual offence.[146]  The likelihood of an adult male with no history of sexual offending committing a sexual offence is less than 1%.[147]

Violence Risk Appraisal Guide, Revised 2013 (VRAG-R)

[146] ts 10 December 2024, 73.

[147] Book of Materials Vol 3, 1528 [35].

1. The VRAG-R is an actuarial tool designed to assess the likelihood of violent or sexual reoffending among make offenders.

2. The respondent's score of 11 was in the medium risk range.  Offenders with the same score as the respondent on release had a 34% likelihood of committing a new violent offence within 5 years and a 60% likelihood of committing a new violent offence within 12 years.[148]

Hare Psychopathy Checklist - Revised, second edition, 2003 (PCL-R)

[148] Book of Materials Vol 3, 1529 [36].

1. The PCL-R is a scale for the assessment of psychopathy.  The respondent's score was in the low moderate range, reflecting antisocial lifestyle and attitudes and criminal behaviour.  The respondent did not meet the threshold for psychopathy.[149]

Risk for Sexual Violence Protocol (RSVP, 2003)

[149] Book of Materials Vol 3, 1529 [37].

1. The RSVP is a SPJ framework for assessing the nature of risk for sexual violence and to develop and inform risk management strategies.[150]

   [150] Book of Materials Vol 3, 1529 [38].

2. Dr Wynn Owen considered the possible chronicity of the respondent's offending, possible escalation of sexual violence over time, the diversity of his sexual violence, and the use of physical coercion and psychological coercion in his offending, all of which may indicate the presence of risks such as attitudes that support of condone sexual violence, problems with sexual awareness, and sexual deviance.[151]

   [151] Book of Materials Vol 3, 1530 [39].

3. Dr Wynn Owen observed that the extreme minimisation or denial of sexual violence by the respondent, and his lack of self‑awareness are risk factors associated with increased risk of reoffending through its effect on attitudes to treatment and supervision, as is the possible presence of attitudes that support or condone sexual violence.  The respondent also has serious problems with stress and coping, which are associated with an increased risk of violence, poor emotional regulation and situational impulsivity.[152]

   [152] Book of Materials Vol 3, 1530 - 1531 [40].

4. The respondent's history of having been abused as a child is a general risk factor for criminality and violence, both general and sexual.[153]

   [153] Book of Materials Vol 3, 1531 - 1532 [40].

5. In Dr Wynn Owen's opinion, the respondent did not exhibit risk factors of sexual deviance, psychopathic disorder or major mental illness.  However, he did have serious problems with substance abuse and violent or suicidal ideation.  Substance abuse is often linked with an elevated risk of general violent offending and there is a clear link between substance use and sexual aggression.  Violent and suicidal ideation is an indicator of the presence of other risks, including personality disorder and attitudes which support or condone sexual violence.[154]

   [154] Book of Materials Vol 3, 1532 [41].

6. Dr Wynn Owen considered that the respondent clearly had serious problems with intimate relationships, given his history, which is a risk factor for a higher frequency of violent offending and a higher rate of violent and general recidivism, and that intimacy deficits are a known risk factor for future sexual offending.  The respondent also has problems with non-intimate relationships, given his failure to establish or maintain a pro-social network.[155]

   [155] Book of Materials Vol 3, 1532 - 1533 [42].

7. The respondent has problems with treatment.  He has never participated in a sexual offending course, despite having committed the offence in 2022.[156]

   [156] Book of Materials Vol 3, 1533 [43].

8. Dr Wynn Owen observed that the nature of the respondent's offending does not show a clear pattern, but the RSVP suggested that a repeat offence is likely to occur in the context of an intimate relationship or sexual touching of a child.  In the former, if the respondent is intoxicated, the offence is more likely to be a violent sexual assault of the victim.[157]  Imminence will be affected by any substance use and whether the respondent is in an intimate relationship.[158]

Historical, Clinical and Risk Management 20, Version 3, 2013 (HCR-20 V3)

[157] Book of Materials Vol 3, 1534 [44].

[158] Book of Materials Vol 3, 1534 [44].

1. The HCR-20 is also a SPJ tool which is widely used to assess risk of violence and serves as an assessment, monitoring and management tool, having regard to a range of historical and dynamic risk factors.[159]

   [159] Book of Materials Vol 3, 1534 [46].

2. The respondent has a history of problems with violence, employment, and serious problems with other antisocial behaviour, relationships, substance use, personality disorder, traumatic experiences, violent attitudes, and treatment or supervision response.  He has issues with insight, having regard to his denial of past sexual offending.  He may encounter problems with personal support in the future, as well as with treatment or supervision.[160]

   [160] Book of Materials Vol 3, 1535 - 1537 [47] - [48].

3. Under the HCR-20, the respondent's violence risk is related to stress which he finds unmanageable, resulting in a return to substance use, and is also related to his pro‑criminal attitudes and antisocial personality traits.  The stress could include interpersonal, financial or legal stresses.  The imminence of any violence is linked to the respondent being in an intimate relationship, with a prospect of escalation until the respondent is removed.  There is a moderate likelihood of future violent behaviour.[161]

   [161] Book of Materials Vol 3, 1537 [49] - [52].

4. In Dr Wynn Owen's view, the respondent's background has clearly adversely affected his capacity to form trusted attachments, negatively impacting on his marriages, all of which were marked by instability and emotional volatility.  As a child, he started to manage negative emotion and stress with alcohol and drugs, and failed to develop mature coping skills.  He was frequently suicidal in the face of stress and conflict, with his substance use exacerbating his emotional instability and, at times, resulting in episodes of psychosis.  Escalating conflict towards the end of relationships appears to reflect a profound fear of abandonment.[162]

   [162] Book of Materials Vol 3, 1538 [54].

5. Dr Wynn Owen considered that the respondent's denial of offending may be related to dissociation in the face of extreme emotion.  This is a tool children use to protect against abuse and can continue into adulthood.[163]  It is a recognised feature of Borderline Personality Disorder.[164]  Dr Wynn Owen thought this explanation was unlikely in the case of the respondent, due to his pattern of recall of (or failure to recall) other events.[165]

   [163] Book of Materials Vol 3, 1538 [54], ts 10 December 2024, 47.

   [164] Book of Materials Vol 3, 1538 [54].

   [165] ts 10 December 2024, 47 - 48.

6. Dr Wynn Owen also theorised that the respondent's denial might be a self‑protective mechanism to prevent being overwhelmed by such a great degree of shame, when one has regard to the respondent's consistent assertions that he is not the kind of person who would commit such offences.[166]

   [166] ts 10 December 2024, 48.

7. On the other hand, Dr Wynn Owen also thought it may simply be that the respondent is being dishonest.[167]

   [167] Book of Materials Vol 3, 1538 [54].

8. Regardless of the reason for it, according to Dr Wynn Owen, denial can have a complex effect on risk.  A person who denies their past offending can be unaware of the chance they may reoffend, and not recognise the factors which might build to reoffending.  It can also impact on the willingness or motivation to make gains from treatment.[168]

Risk Assessment

[168] ts 10 December 2024, 46.

1. In Dr Wynn Owen's opinion, the respondent presents a moderate risk of committing a serious offence in the future if not subject to restriction.  Such an offence is likely to be intrafamilial and occur against a background of marital stress and other external stressors.  While Dr Wynn Owen acknowledged that the respondent has been under some stress, and potentially significant stress, since his release,[169] the principal risk factors for him are being in an intimate relationship, the associated stressors, and substance use.[170]

   [169] ts 10 December 2024, 78 - 79.

   [170] ts 10 December 2024, 83.

1. Where intoxication is not a significant factor, contact sexual offending against an adolescent child may occur.  However, if the respondent were intoxicated, there is a greater likelihood of a violent sexual assault against an adult partner.[171]

Treatment needs

[171] Book of Materials Vol 3, 1534 [44], ts 10 December 2024, 56 ‑ 57.

1. If the respondent is made subject to a restriction order, he should be required to engage in psychological intervention to address his outstanding treatment needs related to sexual offending, coping skills, stress management, relationship skills and attitudes towards women.  Dr Wynn Owen was also concerned that, as the respondent has no clear understanding as to what occurred during the index offending, there has been no way for the respondent to develop a capacity to mitigate against the risk of further such offending.[172]

   [172] ts 10 December 2024, 59.

2. Given the respondent's stance of denial, and the fact that he does not regard himself as a sexual offender, Dr Wynn Owen did not believe that the respondent would seek out treatment for sexual offending of his own accord, despite the fact that he has proactively sought treatment for other issues.[173]

Type of restriction

[173] ts 10 December 2024, 60.

1. Dr Wynn Owen considered it to be 'possible' that the respondent could self‑manage without the structure of a supervision order, but his history suggests that when he gets into relationships, things go badly wrong.  The respondent could potentially have been sufficiently managed in the community on a post‑sentence supervision order (PSSO), but that is no longer possible.

2. In those circumstances, Dr Wynn Owen considered that the respondent's risk can be managed by the imposition of a supervision order of a maximum of three years in duration.[174]

Psychological Report of Dr Dylan Galloghly dated 7 November 2024

[174] ts 10 December 2024, 63.

1. Dr Galloghly is a psychologist with a Doctorate in Clinical and Forensic Psychology with more than 18 years' experience as a clinician, and more than a decade of experience in consultancy, assessment and intervention in relation to high risk and complex offenders.[175]

   [175] Book of Materials Vol 3, 1541 [4].

2. Dr Galloghly interviewed the respondent in person for almost five hours for his report.  The respondent engaged appropriately in that time.[176]

   [176] Book of Materials Vol 3, 1540, 1541 - 1542 [2], [5].

3. The respondent denied the sexual component of the offending against his second wife, and claims that his third wife and her daughter conspired against him to have him falsely charged with the index offence.[177]  He also denied any history of intimate partner violence beyond harassment and breaching violence restraining order offences against his second wife.[178]

   [177] Book of Materials Vol 3, 1546 [22], 1551 [50].

   [178] Book of Materials Vol 3, 1551 [53].

4. The respondent reported his mental state was presently stable.  He rarely experiences PTSD symptoms, and has not had suicidal thoughts for a long time.  He is prescribed medication, which is often used to treat PTSD, none of which are benzodiazepines.[179]  He attributed his positive mental outlook to abstinence from alcohol and drugs and being more open to talking about his issues.[180]

   [179] Book of Materials Vol 3, 1549, ts 10 December 2024, 94 - 95.

   [180] Book of Materials Vol 3, 1549 [39].

5. Dr Galloghly administered the Depression, Anxiety and Stress Scale (DASS), and the respondent's scores indicated that he was not suffering from clinical symptoms of those conditions.  His responses to the Post‑Traumatic Stress Disorder Checklist - Civilian Version suggested he was not suffering symptoms associated with PTSD, and he did not have symptoms consistent with ADHD, according to the Adult ADHD Self‑Report Scale.[181]

   [181] Book of Materials Vol 3, 1549 [40].

6. The respondent's response style on the Millon Clinical Multiaxial Inventory‑IV suggested that he has a tendency to present himself favourably.  His responses indicated that he was not suffering from symptoms associated with a mental disorder, but did have previous drug and alcohol abuse problems.  His profile indicated that his personality structure is primarily characterised by histrionic and turbulent personality traits.  People with such traits typically seek attention and approval from others, can be animated, struggle with boredom and are prone to reckless, impetuous actions and moods, including momentary outbursts of anger and fearful anxiety.[182]

   [182] Book of Materials Vol 3, 1549 [42].

7. The respondent reported that he did not 'believe in violence in general, or towards women' and claimed he fears violence.  He reported that participating in treatment helped him understand how his childhood affected him and that he now has guidelines in managing stress appropriately.[183]  He said he needs to avoid antisocial peers.

   [183] Book of Materials Vol 3, 1553 [60].

8. The respondent claimed he did not see himself getting into a relationship, but said he would like to have a friend.  He reported that his treatment had helped him learn how to react better to problems in relationship and said that he plans to continue with individual counselling.  He said he was 'very focused' on compliance with his order.[184]

   [184] Book of Materials Vol 3, 1553 [61] - [63].

9. Dr Galloghly observed that, at the time of his 2012 and 2013 offending, the respondent's mental state was likely severely impaired, and he was possibly delusional or suffering from drug‑induced psychosis.  He may also have been experiencing transient stress-related paranoid ideation or severe dissociative symptoms (consistent with Borderline Personality Disorder).  Dissociation may explain his denial.[185]

   [185] Book of Materials Vol 3, 1554 [68].

10. As to the index offending, Dr Galloghly noted that there are no indications that the respondent has a deviant sexual interest in children, and he was seemingly not under the influence of alcohol or drugs.  However, the stress within his marriage and his difficulties managing relational conflict could again have led to dissociation on his part.[186]

    [186] Book of Materials Vol 3, 1554 [69].

11. In Dr Galloghly's opinion, the respondent's current mental state is stable.  His substance use disorder appears to be in sustained remission:

    He presented as a mentally meek and fragile individual who historically had a poor self-image and struggled with impulsivity, mood instability and marked difficulties managing interpersonal relationships, particularly relationship conflict and separation/abandonment.

12. While the respondent no longer exhibited symptoms warranting a full diagnosis of Borderline Personality Disorder, he likely retains some risk of experiencing such symptoms and outbursts of rage in the context of relational distress, and these issues would be 'manifestly worse' if he used alcohol or illicit substances.[187]

    [187] Book of Materials Vol 3, 1554 [65] - [66].

13. Dr Galloghly also assessed the respondent using a number of actuarial and SPJ tools.

STATIC‑99R

1. The respondent scored three on the Static‑99R, placing him in the Average (Level III) risk band.  Offenders with the same score have a predicted sexual recidivism rate of between 5.8% and 7.2% over 5 years and 8.5% to 11.9% over 10 years.[188]  Again, the remainder of that cohort will not reoffend.

RSVP-V2

[188] Book of Materials Vol 3, 1555 [73].

1. Dr Galloghly did not consider that the risk factor of psychological coercion in sexual violence was present.  He did not regard the respondent as having attitudes that support or condone sexual violence, problems with non‑intimate relationships, or problems with antisocial attitudes.  Otherwise, Dr Galloghly's assessment of the respondent using the RSVP was similar to that of Dr Wynn Owen, and Dr Galloghly assessed the respondent's risk of sexually violent recidivism using the RSVP to be in the moderate range.  Psychological adjustment risk factors were prevalent, and the risk factors of substance abuse and problems within intimate relationships are particularly relevant to his risk profile.[189]

Spousal Assault Risk Management Guide Version 3 (SARA-V3)

[189] Book of Materials Vol 3, 1555 - 1557 [74] - [75].

1. The SARA-V3 is a set of SPJ guidelines for the assessment and management of risk for intimate partner violence.  Using the SARA revealed risk factors of intimidation, threats, physical harm, sexual harm, severe intimate partner violence, and intimate partner violence‑related supervision violations in the nature domain.  In the perpetrator domain, the risk factors were intimate relationships, employment/finances, trauma/victimisation, personality disorder and substance abuse.[190]

   [190] Book of Materials Vol 3, 1557 [76].

2. Based on the SARA, the respondent's risk of intimate partner violence is viewed as being in the moderate range, with the factors of substance abuse and personality functioning within intimate relationships having a particular bearing.[191]

Psychopathy Checklist-Revised (PCL-R)

[191] Book of Materials Vol 3, 1557 [77].

1. The respondent did not present with significant features consistent with the construct of psychopathy, although his score profile indicated antisocial lifestyle and behavioural issues.[192]

Risk Assessment

[192] Book of Materials Vol 3, 1558 [79].

1. Overall, Dr Galloghly assessed the respondent's risk of committing a serious offence as being moderate in the absence of restriction, saying:

   Substance use, problems within intimate relationships, trauma/childhood abuse issues, personality/emotional regulation problems and previous employment and supervision/order compliance problems are risk factors homogenous to sexual and [intimate partner violence] recidivism.  Notably, the two most substantial risk factors for sexual reoffending, sexual deviance and antisocial personality, do not appear relevant to [the respondent's] risk profile.  Positively, [the respondent] has more recently managed his risk through positive engagement in treatment, order compliance, abstinence from substance use, having suitable supports, obtaining employment and generally stabilising his lifestyle.[193]

   [193] Book of Materials Vol 3, 1558 [82].

2. In Dr Galloghly's opinion, the respondent would find managing his outstanding treatment needs in the absence of restriction 'quite difficult', because he has a history of not addressing his treatment needs and has a lot of long‑standing issues for which he has not had sufficient treatment in his lifetime.  While he has engaged in some treatment in custody, he requires more, and would benefit from substantial, specialised treatment in relation to his offending.[194]  In the absence of an order, if he were to enter a relationship (as he has displayed a proclivity to quickly do in the past) he would have no restraints or limits preventing him engaging in old substance use patterns.[195]

   [194] ts 10 December 2024, 96.

   [195] ts 10 December 2024, 97.

3. Dr Galloghly was of the view that if the respondent reoffends, it will likely be within a relationship and family environment, relating to relationship difficulties and separation and may involve harassment‑based offending, or more serious violence, including sexual violence.  Substance abuse would increase the likelihood and severity of violence, as would dissociation.[196]

Treatment need

[196] Book of Materials Vol 3, 1559 [84] - [86].

1. Dr Galloghly recommended individual counselling with the Forensic Psychological Intervention Team (FPIT) and, if the respondent were to commence an intimate relationship, relationship counselling.  Such counselling may, over time, enable further exploration of his sexual offending.[197]  He would also benefit from continuing drug and alcohol counselling.[198]

Type of restriction

[197] ts 10 December 2024, 96 - 97.

[198] Book of Materials Vol 3, 1559 - 1560 [91] - [92].

1. In Dr Galloghly's opinion, the respondent can be adequately managed on a supervision order, the duration of which should be approximately two to three years, to enable sufficient treatment to take place.[199]

Any other medical, psychiatric, psychological or other assessment relating to the offender.

Treatment Options Report - Luke Carmichael, HRSO Planning Manager dated 22 November 2024

[199] Book of Materials Vol 3, 1560 [95], ts 10 December 2024, 97.

1. Having regard to the reports prepared for the restriction order hearing, and the other available materials, Mr Carmichael has indicated that the respondent has been waitlisted for individual psychological counselling through the FPIT.  There are currently no psychologists from the FPIT available in the respondent's region, but video conferencing is available if a psychologist outside his area is allocated.[200]

   [200] Book of Materials Vol 3, 1512 [16].

2. Further, having regard to the respondent's return to a stance of denial since the Clinical Re‑Assessment Report from 2019, if the respondent remains in custody, a referral to the Sex Offender Deniers Program would be supported.  That program is not available in the community.[201]

Interim Supervision Order Performance Report dated 26 September 2024

[201] Book of Materials Vol 3, 1511, 1512 [10], [18].

1. The respondent has been on the interim supervision order (ISO) since 12 August 2024.  He has since attended supervision sessions and reporting as required, and has engaged appropriately and expressed his willingness to comply with the conditions of the ISO.[202]

   [202] Book of Materials Vol 3, 1500.

2. During his sessions, the respondent has focused on his former partner (his third wife) and expressed concerns about her wellbeing.[203]  He expressed a desire to keep the family home so his biological daughter would have a home, but there are significant outstanding expenses associated with it.  The Risk Management Team is concerned the respondent may attempt to use his efforts to provide financial assistance to control his former wife and his daughter, who do not want contact with him.[204]

   [203] Book of Materials Vol 3, 1500 ‑ 1501.

   [204] Book of Materials Vol 3, 1504 - 1505.

3. The respondent is waitlisted for individual psychological counselling with the FPIT, but in the meantime has engaged with a local community service for general counselling.  He has engaged with community drug and alcohol counselling and reintegration assistance and has also taken steps to resolve his outstanding property settlement with his former wife.[205]

   [205] Book of Materials Vol 3, 1501.

4. The respondent has not returned any positive urinalysis results.[206]

   [206] Book of Materials Vol 3, 1501.

5. The respondent lives with a friend.  The partner of that friend also resided at the property until recently, when she died after being ill for some time.  Due to her illness, female medical professionals often attended the home, as did female relatives.  The respondent's conditions and a written lawful instruction provided direction for the respondent in this regard.[207]

   [207] Book of Materials Vol 3, 1502.

6. The respondent's friends support a denial of the offending on the part of the respondent, leaving Adult Community Corrections (ACC) staff concerned as to whether they would report the respondent for non‑compliance.[208]  The respondent's mother also expressed her view that the offending did not occur.[209]

   [208] Book of Materials Vol 3, 1502.

   [209] Book of Materials Vol 3, 1504.

7. The respondent is associated with the Bandidos outlaw motorcycle gang but is not a patched member and denies having ongoing engagement with patched members.[210]  In interview with Dr Galloghly he claimed he had ceased all associations with the gang.[211]

   [210] Book of Materials Vol 3, 1506.

   [211] Book of Materials Vol 3, 1547 [27].

8. The respondent has disclosed information suggesting that he has been in contact with his former partner, which would be a contravention of his interim supervision order.  However, no contact has been verified at this time.

9. GPS monitoring has also raised issues with the respondent's compliance, at times, with the requirement that he disclose where he goes, and who is at the addresses he has been to.  It has also been flagged that he has been near a public phone box on a number of occasions.  He has also been detected in close proximity to an exclusion zone around a school at the time children would be arriving at school and to drive in a lap around the exclusion zone.  The respondent has provided explanations for being at those locations.[212]

   [212] Book of Materials Vol 3, 1503 - 1504.

10. The interim supervision order was amended by me on 27 September 2024 to provide clearer conditions in respect of these matters.

Community Supervision Assessment Report by Mechele Carvell dated 26 November 2024

1. Since the amendment of the interim supervision order, no further issues have been raised regarding his movements and the respondent has been compliant with all conditions, and proactive in managing his compliance.  The respondent has secured employment, but prioritises his requirements under the order.[213]

   [213] Book of Materials Vol 3, 1567 - 1568, 1570.

2. The respondent continues to be on the waitlist for FPIT intervention.  That waitlist is still quite long, and there is no reasonable time frame for it becoming available in the near future.[214]  However, in the interim the respondent has engaged with community alcohol and drug services, with his counsellor advising that he has done 'extremely well' to date and that he no longer needs substance misuse counselling.[215]  The respondent has also engaged in a local service for generalist counselling.

   [214] ts 10 December 2024, 121 - 122.

   [215] Book of Materials Vol 3, 1568.

3. The respondent commenced employment on 31 October 2024 as a truck driver, the duties of which are compatible with his interim supervision order.[216]  His curfew has been reduced to 11.00 pm to 3.30 am on Monday to Saturday, but remains at 6.00 pm on Sundays.[217]  When asked why the curfew remained set at 6.00 pm on Sundays, Ms Carvell indicated it was to provide structure when he was not working and an opportunity for police to locate him and do random breath checks.[218]

Propensity to commit serious offences in the future and whether or not there is any pattern of offending behaviour.

[216] Book of Materials Vol 3, 1571.

[217] ts 10 December 2024, 118.

[218] ts 10 December 2024, 118.

1. I am required to consider whether the respondent has a propensity, being an inclination or tendency,[219] to commit serious offences in the future.

   [219] The State of Western Australia v Bellamy [2013] WASC 467 [70]; see also The State of Western Australia v McCabe [2016] WASC 226 [25] ‑ [26].

2. In my view, he does have such a propensity, namely an inclination or tendency to commit serious sexual offences in circumstances of heightened emotional stress within intimate relationships, particularly while intoxicated.  I have formed this view on the basis that the 2014 offending was, as the experts described it, a 'cluster' of offending behaviour, which formed a pattern over a period of time.  The sexual offending was particularly brutal, and involved an element of punishment of the complainant.  It was combined with threatening and generally violent behaviour which occurred during the same period. 

Any efforts by the respondent to address the cause or causes of the offending behaviour, including whether the respondent has participated in any rehabilitation program, and whether the participation in any rehabilitation program has had a positive effect on the offender.

Programs

Stopping Family Violence Program

1. The Stopping Family Violence (SFV) program is a 28 session, 70 hour group program which focuses on addressing family violence, targeted at medium to high risk main offenders.  The respondent completed the program in October 2015.[220]

   [220] Book of Materials Vol 1, 512.

2. During the program, the respondent denied engaging in any violence as part of his offending, and claimed he only sent threatening messages to his wife and her family.  He acknowledged his behaviour was abusive and threatening.[221]

   [221] Book of Materials Vol 1, 512.

1. The respondent had some insight into the effects that his exposure to violence as a child had on his development and his ability to trust others.  He reported that his abusive practices were triggered by his relationship breakdown, after which his drug use escalated and he became desperate to locate his wife and children.  The respondent reported that he believed that he needed to find and protect his children from potential trauma similar to what he experienced as a child.[222]

   [222] Book of Materials Vol 1, 513.

2. The facilitators of the program assessed the respondent's initial presentation as 'uncertain and wary' regarding his participation, but observed that he engaged openly.  The respondent met his treatment needs in the area of violence related cognitions, emotional regulation relationship skills and the development of insight.  He also presented a realistic and appropriate risk management plan to avoid future family violence.[223]

Pathways Program

[223] Book of Materials Vol 1, 517 - 518.

1. The Pathways program is a 100 hour cognitive‑behavioural based program for offenders who have co-occurring problems of alcohol and other drug abuse and criminal conduct.  The respondent completed it in July 2017.[224]

   [224] Book of Materials Vol 1, 519.

2. Features which were identified as potentially perpetuating further conduct by the respondent included poly substance use, poor emotional regulation and coping skills, entrenched pro‑criminal attitudes and antisocial patterns, and association with antisocial peers.  In turn, the respondent had limited protective factors.[225]

   [225] Book of Materials Vol 1, 520 - 521.

3. The respondent's treatment needs relating to his childhood trauma were outside the scope of the program, and it was recommended he seek individual intervention in this regard.

4. Despite the treatment gains made in the SFV program, a review of the respondent's prison incidents and notes suggested further gains could be made, and the respondent had some difficulty implementing learned skills in the area of emotional regulation both in the program and in the unit.[226]

   [226] Book of Materials Vol 1, 521.

5. The respondent continued to express pro‑criminal attitudes and antisocial patterns, citing systemic failures and an unfair trial for his situation.  He acknowledged his rigid anti‑authority thinking was an entrenched core belief which may result in recidivism.  At times he did attempt to challenge his own attitudes appropriately, but his behaviour reflected his ongoing criminal attitudes.[227]

   [227] Book of Materials Vol 1, 522.

6. In particular, while the respondent continued to maintain his innocence of the sexual offences of which he had been convicted, the respondent was observed to engage in grooming behaviour, and inappropriate, sexualised comments towards staff and other prisoners, suggesting that sex offender treatment was an outstanding treatment need.  It was recommended he participate in the Deniers Sex Offender treatment program.[228]

   [228] Book of Materials Vol 1, 522.

7. The respondent also acknowledged his association with an outlaw motorcycle club and considered them his support network.  He expressed no desire to cease those associations, despite acknowledging that he could be placed in high‑risk situations.[229]

The risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence and the need to protect members of the community from that risk.

[229] Book of Materials Vol 1, 522.

1. In evidence which I consider to have been clearly expressed and supported, Dr Wynn Owen and Dr Galloghly both regarded the respondent's risk of committing a serious offence as being moderate in the absence of restriction.

2. The most likely such offending would be violent sexual offending against an intimate partner.  If the respondent were intoxicated that risk would likely increase.

3. There is no doubt that there is a need to protect members of the community from that risk.

Is the respondent a high risk serious offender?

Is there an unacceptable risk that the respondent will commit a serious offence?

1. The principal question in this matter is whether there is an 'unacceptable risk' of the respondent committing a serious offence.  In determining this question, I am required to have regard to the likelihood of the respondent committing a serious offence, the nature of the serious offence likely to be committed, the potential consequences of such offending, and the consequences on the respondent of making a finding that the risk is unacceptable.

2. I have already noted the opinions of the experts as to the risk of the respondent committing a serious offence in the future.  I consider their evidence to have been acceptable and cogent.  The nature of the serious offence which is likely to be committed is, in my view, a serious and violent sexual offence against an intimate partner.  However, there is also a potential risk that the respondent's sexual offending may diversify, leaving others potentially at risk in the future.

3. The respondent's denial of his sexual offending means that he has not engaged in treatment which properly addresses it.  Further, his unwillingness to accept that he is capable of committing such offences leads to a lack of insight into his risk factors, and a lack of awareness of circumstances of increased risk.  His failure to fully acknowledge his substitution of prescription medication for illicit substance misuse also gives rise to an increased risk of reoffending.

4. The respondent apparently has little difficulty in quickly forming relationships of some intensity when in the community.  While the pool of potential victims is limited by the fact that the respondent only has one partner at a time, the potential consequences are extremely serious.  The physical and psychological impact of the kind of offending for which the respondent has a proclivity is likely to be very severe.

5. I am conscious that the consequences for the respondent of finding that the risk of him committing a serious offence is unacceptable are that he will remain under restriction, long past the time when he will have served his sentence for the index offence, on the basis that he may commit further offending, particularly that of a kind he last committed more than ten years ago.  However, in my view those consequences are outweighed by the likely consequences of him committing such offences in the future.

6. Accordingly, in my view, even a moderate risk of the respondent committing serious offences in the future is an unacceptable one.

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

1. In my view, the evidence adduced in this matter is acceptable and cogent, and compels the conclusion that it is necessary to make a restriction order to ensure adequate community protection against the unacceptable risk I have outlined.

2. I am satisfied of that necessity to a high degree of probability.

Continuing detention order or supervision order?

1. Both Dr Wynn Owen and Dr Galloghly were of the view that a supervision order would adequately manage the respondent's risk in this case.  There is no basis for imposing a continuing detention order in this case.

2. Both experts recommended a supervision order of no more than three years.  Dr Galloghly considered two years might be sufficient.  In the case of both experts, that recommendation was premised on the respondent accessing individual psychological intervention early in such an order, so he could have extensive treatment, and then, after cessation, have a further period of consolidating his gains in the community before the order ends.[230]

   [230] See, for example, ts 10 December 2024, 84 - 85, 97.

3. Regrettably, there is no guarantee that the respondent will receive individual psychological intervention promptly if he is declared to be a high risk serious offender and a supervision order imposed.  There simply are not enough psychologists available, and he is on a waiting list.  Ms Carvell was unable to offer any clarity as to when the respondent might be able to access such intervention.[231]

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

[231] ts 10 December 2024, 121 - 122.

1. The respondent did not give or adduce evidence at the hearing.  However, there is evidence on the applicant's case which enables me to determine this issue, and the applicant concedes the respondent's burden has been met.

2. To date, the respondent has complied with the stringent conditions of the interim supervision order imposed on him in August of this year.  Both experts were satisfied that he was willing to abide by the terms of a final order, and that he was capable of doing so.

3. While the respondent's history of complying with supervision has not been unblemished, it is sufficient to give some confidence that he will substantially comply with the standard conditions of a supervision order.

4. Accordingly, I am satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions.

Conditions and duration of order

1. Having regard to the matters which have been put before me, I am of the view that the order should be for a period of 3 years.  The conditions with which the respondent will be required to comply are set out in the schedule to these reasons.

2. It is necessary to ensure that the number and ambit of the conditions imposed are kept to the minimum necessary to manage the respondent's risk and protect the community.  In my view, the conditions originally proposed by the State were unnecessarily proscriptive, inadequately targeted to the respondent's risk and duplicative.  Accordingly, they have been substantially amended and consolidated having regard to the evidence given by the experts.

Conclusion

1. I am satisfied, to a high degree of probability, by cogent and acceptable evidence, that it is necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence. Accordingly, I am satisfied that the respondent is a high risk serious offender within the meaning of the HRSO Act.

2. I am satisfied that a supervision order is sufficient to adequately protect the community against the risk identified, and that a detention order is not necessary to do so.

3. I am also satisfied that the respondent has established, on the balance of probabilities, that he will substantially comply with the standard conditions of a supervision order.

4. In my view, the appropriate term of the order is 3 years and the appropriate conditions are as set out in the schedule to these reasons.

SCHEDULE

IN THE SUPREME COURT OF WESTERN AUSTRALIA

SO 7 of 2024

IN THE MATTER of the High Risk Serious Offenders Act 2020

THE STATE OF WESTERN AUSTRALIA   Applicant

- and -

JPA  Respondent

_________________________________________________________________________

SUPERVISION ORDER MADE BY THE HON JUSTICE FORRESTER
ON 12 FEBRUARY 2025

_________________________________________________________________________

Pursuant to section 48(1)(b) of the High Risk Serious Offenders Act 2020 (WA) (the HRSO Act), the Court, having found that the Respondent is a high risk serious offender within the meaning of section 7(1) of the HRSO Act, makes a supervision order in relation to the Respondent, for a period of three years from 14 February 2025 on the following conditions:

You, JPA, must:

STANDARD CONDITIONS REQUIRED BY THE HRSO ACT

1. Report to a Community Corrections Officer (CCO) at the Geraldton Adult Community Corrections Centre, 45 Cathedral Avenue, Geraldton, Western Australia, 6530, within 48 hours of being issued this order and advise the officer of your current name and address.

2. Report to and receive visits from a CCO as directed by the Court.

3. 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.

4. Be under the supervision of a CCO and comply with any reasonable directions of the officer (including direction for the purposes of section 31 or 32).

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

6. Not commit a serious offence as defined by the Act during the period of the Order.

7. Be subject to electronic monitoring under section 31.

ADDITIONAL CONDITIONS

Residence

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

Reporting to a CCO and supervision by a CCO

1. Report to, and receive visits from, a CCO at times and places as directed by the CCO, such arrangements having regard to any employment commitments you have.

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

Attendance at programs or treatment

1. Consult, engage, attend all appointments (including any group programs) and receive visits from any medical practitioner, psychologist, counsellor, support service, mentor and/or support person nominated by a CCO, as directed by a CCO.

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

Reporting to WA Police

1. Report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the Geraldton Police and/or their delegate.

2. If requested, permit Police Officers to enter and search your residence and/or vehicle and/or search your person for the purpose of monitoring your compliance with your obligations under this Order, remain at your premises and/or vehicle during any such search and allow the seizure of any such items that the Police Officer/s believes to contravene the conditions of the Order.

Restrictions on contact with Victims

1. Have no contact, directly or indirectly, with the victims of your violent and sexual offending, or their immediate family members, including the mother of the child victim and your second former wife, unless such contact is conducted in accordance with arrangements made through, or approved by, the Victim-Offender Mediation Unit of the Department of Justice.

2. Unless contact with any person referred to in condition 15 is permitted pursuant to that condition, if you come into contact or proximity with any such person, you must immediately physically withdraw from that contact or proximity, without engaging in conversation with that person, whether by word or gesture, and look away from the person at all times.

3. Report to a CCO and WA Police any direct or indirect contact with the victims of your violent and sexual offending within 48 hours of such contact occurring.

Criminal conduct

1. Not commit any other criminal offence the maximum penalty for which includes imprisonment, and which involves sexual offending, violence, threats of violence, or breach of a restraining order (within the meaning of the Restraining Orders Act 1997 (WA)).

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

Curfew

1. Until 1 March 2026, be subject to the imposition of a curfew, such that you are to remain at and not leave your approved address at such times as directed by a CCO.

2. When under any curfew in accordance with condition 20, present yourself 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.

Prevention of high-risk situations

1. Report at your next contact with your CCO, any intention to enter into any domestic, romantic, sexual or otherwise intimate relationship with any person, prior to forming that relationship, and engage in any discussions and/or planning with your CCO around that relationship formation.

2. Report at your next contact with your CCO, the formation of any ongoing social association (of more than 2 contacts by any means) or friendship by you with any person.

3. As directed by your CCO, make full or part disclosure regarding your past offending and the current order to anyone defined under the above conditions 22 and 23, which disclosure can be confirmed by a CCO or a Police Officer.

4. Not to be in possession of any firearm, any ammunition or any offensive or prohibited weapon or instrument, 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 or instrument, replica or dangerous article.

5. Not purchase, or possess, or consume or use alcohol.

6. Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs or prescription medication as directed by a CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place.

7. Provide a valid sample pursuant to condition 27.

8. Not remain in the presence of any person who you ought to know is affected by prohibited substances, unless the identity of such person is approved in advance by a CCO.

9. 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.

10. Have no contact, by whatever means, with any female child under the age of 18 years, unless:

    a)the contact is authorised in advance by a CCO and such contact is supervised at all times by an adult or adults approved in advance by a CCO; or

    b)the contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction, and another adult is present.

11. Where any unsupervised contact with a female child under the age of 18 years is initiated by the child, unless the contact is permitted under the condition immediately above, you must withdraw immediately from the presence of the child.

12. Provide the name, address, location and any details known by you, of any contact with a female child under the age of 18 years both to your CCO and to the Police on the next occasion you report to that person or agency.

13. Have no contact with, membership of, or affiliation with clubs, associations or groups of which the membership includes children, unless approved by a CCO; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer.

14. Have no contact directly or indirectly with any patched members, associates or nominees of any Outlaw Motorcycle Gang.

Devices and electronic access

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, within 48 hours, whether or not it is capable of being connected to the internet, and the location of that device.

2. Enable device locking or password access of your computer, telecommunication and/or electronic devices, and not provide or disclose such passwords or any means to access any computer, telecommunications and/or electronic device referred to in condition 36, or any online accounts, to any person other than a CCO or Police Officer or a person approved in advance by a CCO or Police Officer.

3. Upon request, permit a CCO or WA Police to access any computer, telecommunication and/or electronic device capable of storing digital data in your possession or control, and provide to the CCO or WA Police upon request any passwords or any other means required to unlock or access the device.

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.

2. Not to access online social media (websites or applications) unless approved in advance by a CCO.

Dealings with staff or agents

1. Not assault, threaten, insult or use abusive language to a member of the departmental staff or an agent providing a service on behalf of the Department of Justice.

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

CA

Associate to the Hon Justice Forrester

12 FEBRUARY 2025