The State of Western Australia v Lawrence - [2020] WASC 462

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- LAWRENCE [2020] WASC 462
CORAM:   DERRICK J
HEARD:   11 DECEMBER 2020
DELIVERED          :   11 DECEMBER 2020
FILE NO/S:   SO 14 of 2020
(formerly HRSO 5 of 2020)

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
ARTHUR THOMAS LAWRENCE
Respondent

Catchwords:

High Risk Serious Offenders Act 2020 (WA) - Preliminary hearing - Whether reasonable grounds for believing that court might find that the offender is a high risk serious offender - Whether detention order or an interim supervision order should be made pending determination of whether offender is a high risk serious offender

Legislation:

Criminal Code (WA)
Dangerous Sexual Offenders Act 2008 (WA)
High Risk Serious Offenders Act 2020 (WA)
Police Act 1892 (WA)

Result:

Application for orders under s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the High Risk Serious Offenders Act 2020 (WA) allowed
Detention order made pending determination of application for restriction order

Category: B

Representation:

Counsel:

Applicant	:	Mr B D Meertens
Respondent	:	Mr T Hager

Solicitors:

Applicant	:	Director of Public Prosecutions (WA)
Respondent	:	Legal Aid (WA)

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

Director of Public Prosecutions (WA) v Dodd [2015] WASC 249
Director of Public Prosecutions (WA) v Free [2010] WASC 255
Director of Public Prosecutions for Western Australia v Paul Douglas Allen also known as Paul Alan Francis Deverell [2006] WASC 160
The State of Western Australia v CA [2020] WASC 164
The State of Western Australia v Cox Aka Roe [2020] WASC 344
The State of Western Australia v Lawrence [2016] WASCSR 213
The State of Western Australia v Ryan [2020] WASC 352

DERRICK J:

Introduction

In 2016 the respondent was convicted on his pleas of guilty of one offence of armed robbery contrary to s 392(c) of the Criminal Code (WA) (Code), one offence of aggravated home burglary contrary to s 401(2)(a) of the Code, five offences of home burglary contrary to s 401(2)(b) of the Code, one offence of being armed so as to cause fear contrary to s 68 of the Code and one offence of assaulting a public officer contrary to s 318(1)(d) of the Code (the index offences).
On 26 October 2016 the respondent was sentenced to a total of 6 years imprisonment for the index offences, a sentence of 5 years imprisonment being imposed for the armed robbery offence. The commencement date of the 6 year sentence was backdated to 4 December 2014. The respondent was made eligible for parole.[1]
[1] The State of Western Australia v Lawrence [2016] WASCSR 213.
The respondent is due to be released on 28 December 2020 by which time he will have served the entirety of his 6 year sentence.
On 8 October 2020 the applicant made an application for the following orders to be made in relation to the respondent:
1.A restriction order under s 48(1) of the High Risk Serious Offenders Act 2020 (WA) (the Act) (the application for this order being made pursuant to s 35(1) of the Act);[2]
2.Orders pursuant to s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the Act; and
3.An order that, until the conclusion of the hearing and judgment on the application for a restriction order:
(1)the respondent be detained in custody pursuant to s 46(2)(c)(i) of the Act; or alternatively
(2)with effect from the date of such order, the respondent be released subject to the conditions in s 30(2) of the Act and such other conditions as the court considers appropriate pursuant to s 58(5) of the Act.
[2] The respondent is an 'offender' for the purposes of the Act and a 'serious offender under custodial sentence who is not a serious offender under restriction' within the meaning of s 35(1) of the Act: see the definition of 'offender' in s 3 of the Act, par (b) of the definition of 'serious offender under custodial sentence' in s 3 of the Act and the definition of 'serious offender under restriction' in s 3 of the Act. Given that the respondent is to be released on 28 December 2020 the application was, as required by s 35(3) of the Act, made within a period of one year of the date on which the respondent is to be released from custody.
The application is supported by an affidavit affirmed by Mr Brent Meertens, a lawyer employed by the Office of the Director of Public Prosecutions for Western Australia (the DPP), on 6 October 2020. The annexures to Mr Meertens' affidavit are comprised of materials relating to the offences of which the respondent has been convicted as well as various reports that have over the years been prepared in relation to him.
On 11 December 2020 I heard the applicant's application for the orders pursuant to s 46(2) of the Act. Accordingly, the hearing before me was a preliminary hearing conducted pursuant to s 46(1) of the Act.
At the preliminary hearing the respondent did not oppose the application for the orders under s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the Act. Nonetheless, it was, of course, still necessary for me to examine the evidence and to satisfy myself that the orders sought should be made.
The respondent opposed the application for the order that he be detained in custody until the conclusion of the hearing and judgment on the application for the restriction order. He contended that he should be released on an interim supervision order pursuant to s 58(5) of the Act.

Statutory provisions and applicable legal principles

Section 43(1) of the Act provides that after a restriction order application is made, as in this case, the court must fix a day for the matter to come before the court for a preliminary hearing. A 'preliminary hearing' is defined to mean 'a preliminary hearing referred to in s 46'.[3]
[3] Act, s 3. After the applicant filed the application for the restriction order to be made in relation to the respondent, the court fixed 11 December 2020 for the preliminary hearing.
Section 43(2) provides that within seven days after the court has fixed the day for the preliminary hearing or any other period specified by the court, the State must give the offender notice of the day fixed.
Section 46(1) of the Act is in the following terms:
The main purpose of the preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might, in accordance with section 7, find that the offender is a high risk serious offender.
Section 7(1) of the Act which contains the definition of the term 'high risk serious offender', provides 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.
Accordingly, the main purpose of the preliminary hearing is to enable the court to decide if it is satisfied that there are reasonable grounds for believing that the court might be 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] In deciding if it is satisfied that there are reasonable grounds for the requisite belief, the court must have regard to the matters specified in s 7(3) of the Act.[5]
[4] A 'restriction order' is a continuing detention order as defined in s 26(1) of the Act or a supervision order as defined in s 27(1) of the Act: Act, s 3.
[5] The State of Western Australia v Ryan [2020] WASC 352 [18].
If the court is satisfied on the preliminary hearing that there are reasonable grounds for believing that the court might, in accordance with s 7, find that the offender is a high risk serious offender, the court:
1.must order that the offender undergo examination by a psychiatrist and a qualified psychologist for the purpose of preparing reports in accordance with s 74 of the Act to be used on the hearing of the restriction order application;[6] and
2.may, on the application of the State or the offender, order that a person named by the court prepare a report in accordance with s 75 of the Act to be used on the hearing of the restriction order application on questions or topics set out in the order;[7] and
3.may:
(1)if the offender is in custody or might otherwise be released from custody before the restriction order application is finally decided, order that the offender be detained in custody for the period stated in the order; and
(2)if the offender is not in custody, order that the offender be detained in custody for the period stated in the order;[8] and
4.must, except as provided in s 46(3) (which is not relevant in the present case) fix a day for the hearing of the restriction order application.[9]
[6] Act, s 46(2)(a). The terms 'psychiatrist' and 'qualified psychologist' are defined in s 3 of the Act.
[7] Act, s 46(2)(b).
[8] Act, s 46(2)(c).
[9] Act, s 46(2)(d).
In Director of Public Prosecutions (WA) v Free[10] McKechnie J made the following statements in relation to the requirements of s 14(1) of the now repealed Dangerous Sexual Offenders Act 2006 (WA) (DSO Act), s 14(1) being the equivalent provision to s 46(1) of the Act:
A judge does not have to be satisfied that an order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made …
It is not helpful to speak of the test at a preliminary hearing as a low threshold or any other description. The words mean what they say, and the belief of the judge must be grounded in fact and must acknowledge that a judge is exercising a judicial, not administrative power, and so is permitted to bring scrutiny to the possibility of a detention or supervision order being made. At a preliminary hearing a judge must have a belief in the possibility the later court will be satisfied to a high degree of probability that a person is a serious danger to the community. It is a threshold that must be crossed before a judge can appoint psychiatrists to undertake an evaluation.
The phrase 'Reasonable grounds of belief' has been the subject of judicial interpretation. In George v Rockett (1990) 170 CLR 104:
'When a statute prescribes that there must be "reasonable grounds" for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.'
Further on:
'The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.'
The principle to be extracted is that there must be sufficient facts or circumstances to ground in reason an inclination towards the proposition under review.[11]
[10] Director of Public Prosecutions (WA) v Free [2010] WASC 255 [10] ‑ [13].
[11] Similar observations in relation to the requirements of s 14(1) were made by Simmonds J in Director of Public Prosecutions (WA) v Dodd [2015] WASC 249 [34] ‑ [42].
In my opinion McKechnie J's above statements are equally applicable to s 46(1) of the Act, save of course that his Honour's reference to the person being a 'serious danger to the community' needs to be read as 'high risk serious offender'.
Substantially similar statements to those made by McKechnie J in Director of Public Prosecutions (WA) v Free were made by Allanson J in The State of Western Australia v Cox Aka Roe,[12] the first decision of this court which resulted in orders being made following a preliminary hearing under the Act. In The State of Western Australia v Cox Aka Roe Allanson J said the following:[13]
In a preliminary hearing, a judge does not have to be satisfied that an order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made - that is, a judge might be satisfied to a high degree of probability that it is necessary to make an order for continuing detention or supervision of the respondent to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence. To say that something might occur is to say that it is possible.
For there to be 'reasonable grounds' for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition. That is the threshold that must be crossed before ordering that the respondent be examined by a psychiatrist and qualified psychologist whose reports will form the primary evidence on the application for a restriction order.
[12] The State of Western Australia v Cox Aka Roe [2020] WASC 344.
[13] The State of Western Australia v Cox Aka Roe [15] ‑ [16].
Against the background of the relevant statutory provisions and applicable legal principles I turn now to the information before me which bears upon my determination of the question posed by s 46(1).

The index offences

The facts of the index offences, briefly stated and dealt with in chronological order, were as follows.
At approximately 2.30 pm on Friday 28 November 2014 the respondent rode a bicycle, which he had earlier stolen, to a residence in a set of residential units. The occupants of the unit were out at the time. The respondent broke into the unit by smashing a glass sliding door at the rear of the unit. Once inside the unit the respondent rummaged through the house and stole a laptop computer, headphones and various other items including an ornamental samurai sword. It was this conduct of the respondent that constituted the first of his home burglary offences.
As the respondent was leaving the unit he was confronted by the occupants. The respondent brandished the samurai sword towards the occupants and made threatening movements towards them before instructing them to stay back and threatening to stab them. The respondent then ran off with the stolen property. It was this conduct of the respondent that constituted his armed robbery offence. The offence of armed robbery is a 'serious offence' for the purposes of the Act.[14]
[14] Act, s 5(1)(a) and definition of 'serious offence' in s 3.
At around 1.00 pm on 4 December 2014 the respondent attended a house. He armed himself with a garden pitchfork. He then forced entry into the house by snapping off a security screen door handle and damaging the door's locking mechanism. The victim, who was the sole occupant of the house, confronted the respondent in the hallway of the house. The respondent snatched the victim's car keys from a hook in the hallway and ran out of the front door. The victim gave chase. The respondent turned towards the victim and pointed the pitchfork at the victim causing the victim to stop in fear. The respondent then ran away. It was the conduct of the respondent in entering the house while armed with the pitchfork and stealing the car keys that constituted his offence of aggravated home burglary. It was the respondent's conduct of pointing the pitchfork towards the victim that constituted his offence of being armed so as to cause fear.
At around 1.30 pm on 4 December 2014 the respondent attended a house in Kewdale. The respondent still had the stolen bicycle with him. The respondent rode the bicycle to the rear of the house. The respondent forced entry into the house via a rear door. The victim occupant of the house found the respondent in the kitchen of the house. The respondent started to walk towards the victim. The victim, fearing for her safety, closed and locked an internal door that was between her and the respondent and ran out the front door of the house to her car. The victim got inside her car and locked the car doors. The respondent then left the house by the rear door and walked to the victim's car. He stood at the victim's driver's door fiddling with the keys which he had stolen during the previous offence. The victim managed to drive off. The respondent then left the scene leaving the bike behind. It was this conduct of the respondent that comprised the second of his home burglary offences.
At 2.05 pm on 4 December 2014 the respondent attended another house in Kewdale. He climbed over a fence into the rear yard of the house. He entered the house by an open rear door and stole a purse and a key in a ceramic jar from inside before running out the front door. It was this conduct of the respondent that comprised the third of his home burglary offences.
The respondent next walked to the house that was next door to the house that he had just burgled. The respondent entered the house through an open back door. Once inside the respondent looked for items to steal but took nothing. The respondent left the house by entering the garage from an open side door and opening the roller door to the garage. It was this conduct of the respondent that comprised the fourth of his home burglary offences.
At approximately 2.30 pm on 4 December 2014 the respondent attended another house in Kewdale. The respondent entered the house by an unlocked rear door and discovered an occupant of the house sleeping in a bedroom. The respondent told the victim to keep quiet. The respondent then rummaged through the house stealing $250 in cash and some gold rings. It was this conduct of the respondent that comprised the fifth of his home burglary offences.
While the respondent was still at the house the subject of his fifth home burglary the police arrived. The police chased the respondent. The respondent hid in the shed. A police officer demanded that the respondent come out of the shed. The respondent opened the door with such force that it hit the police officer in the face. The respondent then tried to escape but was cornered. The respondent stood in a fighting stance and faced the police officer who tasered him. After the respondent was tasered he lashed out with his legs and fist striking the police officer. It was this conduct of the respondent that comprised his assault public officer offence.

The respondent's prior 'serious offences'

The relevant details of the 'serious offences' committed by the respondent prior to the above referred to armed robbery offence of which he was convicted in October 2016 are as follows.

1994 conviction

On 27 May 1994 the respondent, who was 16‑years‑old, was convicted after a trial in the Perth Children's Court of one offence of robbery in company contrary to s 391 of the Code (repealed). The offence of robbery contrary to s 391 of the Code is a 'serious offence' for the purposes of the Act.[15] The facts of the offence were as follows.
[15] Act, s 5(1)(a), s 5(2) and definition of 'serious offence' in s 3.
On 17 November 1993 the respondent, in company with four others, attended a drive‑through bottle shop. The respondent entered the bottle shop and picked up a bottle of spirits. He raised the bottle above his head and told the shop employee to back off. The employee retreated and the respondent left the bottle shop with several bottles of spirits.
On 27 May 1994 the respondent was sentenced to a total of 15 months detention for the offence. An order was made that he was to be conditionally released after serving nine months of the term of detention.

April 1997 conviction

On 21 April 1997 the respondent was convicted, on his plea of guilty, of an offence of robbery contrary to s 391 of the Code (repealed). The facts of the offence were as follows.
On 15 April 1996 the respondent attended a pharmacy in Bentley. Once inside the pharmacy the respondent demanded money and dexamphetamine from the shop assistant. The shop assistant complied with the respondent's demands. The respondent left the pharmacy with approximately $75 cash from the cash register, $155 in a cash bag and two bottles of dexamphetamine.
On 21 April 1997 the respondent was sentenced to 3 years imprisonment for the offence. He was made eligible for parole.

June 1997 conviction

On 18 June 1997 the respondent was convicted after trial of one offence of armed robbery in company contrary to s 391 of the Code (repealed). The facts of the offence were as follows.
On 10 April 1996 the respondent attended a pharmacy in Como with his co‑offender. The respondent and his co‑offender were each armed with a wooden fence picket. The respondent and his co‑offender entered the pharmacy, banged on the counter and began menacing the chemist and his female assistant with the pickets. The respondent and his co‑offender left the chemist with approximately $200 cash and some dexamphetamine, Ritalin and rohypnol tablets.
On 20 June 1997 the respondent was sentenced to 4 years imprisonment for the offence. The sentence was ordered to be served concurrently with the sentence imposed for the robbery offence of which the respondent had been convicted in April 1997. The respondent was made eligible for parole.
The offence of armed robbery in company contrary to s 391 of the Code is a 'serious offence' for the purposes of the Act.[16]

2000 convictions

[16] Act, s 5(1)(a), s 5(2) and definition of 'serious offence' in s 3.

On 3 March 2000 the respondent was convicted after trial of one offence of armed robbery in company contrary to s 391 of the Code (repealed).
On 11 April 2000 the respondent was convicted, on his pleas of guilty, of a further four offences of armed robbery in company contrary to s 391 of the Code (repealed) and one offence of stealing a motor vehicle contrary to s 378 of the Code. The offence of stealing a motor vehicle is not a 'serious offence' for the purposes of the Act.
The facts of the armed robbery in company offence of which the respondent was convicted on 3 March 2000 were as follows.
On 14 February 1999 the respondent and a co‑offender entered a video store in Floreat Park. The respondent was wearing a beanie, some sunglasses and some form of mask over his mouth in an attempt to disguise his appearance. The respondent was armed with a screwdriver. The respondent pointed the screwdriver towards an employee and demanded to know where the money was. He then made the employee lie on the floor, took $488 out of the cash register and left the store.
The facts of three of the armed robbery in company offences of which the respondent was convicted on 11 April 2000 were as follows.
On 26 March 1999 the respondent and a co‑offender returned to the same video store (that is, the store the subject of the offence of which he was convicted on 3 March 2000) armed with a screwdriver and a piece of wood. The respondent and his co‑offender had pulled their t‑shirts over their heads in an attempt to partially disguise themselves. The respondent and his co‑offender behaved in a threatening way to the people in the store. The respondent took approximately $700 from the cash till and then demanded more money from the store employee. The respondent stole the store employee's purse, sunglasses and mobile phone. The respondent's co‑offender stole a wallet from a customer who was in the store before they both ran from the store.
The facts of the fourth of the armed robbery in company offences of which the respondent was convicted on 11 April 2000 were as follows.
On 14 May 1999 the respondent once again returned to the same video store. He had a t‑shirt over his head. He was armed with a hockey stick. He entered the store, jumped over the counter, threatened the store attendant with the hockey stick and demanded money from the store attendant. He took approximately $400 from the cash register before leaving the premises.
As to the steal motor vehicle offence, on 14 May 1999, and prior to committing the armed robbery in company offence, the respondent and a co‑offender broke into and stole a vehicle that was parked at the Perth Concert Hall. The respondent drove the vehicle to the Floreat video store where he committed the armed robbery in company offence. The respondent left the scene of his armed robbery in company offence in the vehicle which was driven by his co‑offender. The vehicle was later abandoned in West Perth.
On 18 April 2000 the respondent was sentenced to a total of 7 years and 9 months imprisonment for the six offences. He was made eligible for parole.

The respondent's further relevant offences

The facts of other offences committed by the respondent which are not 'serious offences' for the purposes of the Act but which are still of relevance to the determination of the application are as follows.

1994 convictions

On 20 May 1994 the respondent was sentenced in the Perth Children's Court to 3 months detention for an offence of assault with intent to prevent arrest contrary to s 318 (1)(c) of the Code and one offence of resisting arrest contrary to s 20 of the Police Act 1892 (WA). The facts of the offences were that on 30 December 1993 the respondent resisted arrest by kicking a police officer and stabbing him in the hand with a screwdriver.
On 27 May 1994 the respondent was sentenced in the Perth Children's Court to a period of detention for an offence of stealing. The facts of the offence were as follows.
On 21 July 1993 the respondent, while in company with four others, reached out of a car window and grabbed the victim's handbag from around her shoulder. The victim's arm was tangled in the strap of the handbag which resulted in the victim being dragged along the ground for a short period of time.

2008 convictions

On 20 November 2008 the respondent was sentenced for a large number of offences of which he had been convicted on his pleas of guilty. The offences included three offences of aggravated home burglary contrary to s 401(2)(a) of the Code, one offence of home burglary contrary to s 401(2)(b) of the Code, one offence of being armed in a way so as to cause fear contrary to s 68 (1) of the Code, one offence of assaulting a public officer contrary to s 318 (1)(d) of the Code, and one offence of common assault contrary to s 313 (1)(b) of the Code.
The facts of the first of the respondent's aggravated home burglary offences were as follows.
On 17 April 2006 the respondent entered a residence and stole various items. As the respondent was leaving the residence the female occupier confronted him. The respondent punched her in the face.
The facts of the second of the respondent's aggravated home burglary offences were as follows.
On 21 July 2007 the respondent smashed a door in order to gain access to a residence. Once inside the residence he stole various items of property. The 76‑year‑old occupant confronted the respondent which resulted in the respondent running away.
The facts of the third of the respondent's aggravated home burglary offences and his being armed in a way to cause fear offence were as follows.
On 1 September 2007 the respondent entered the shed of a residential address. The respondent armed himself with an axe. The respondent then entered the residence. At this point the respondent was confronted by the victim occupant of the residence who was at home with her 22‑month‑old child. The respondent raised the axe in a threatening manner and lunged towards the victim although he did not make contact. The respondent stole the victim's handbag, car keys and left the address in the victim's car.
As the respondent was leaving the residence and while armed with the axe as well as a knife, the respondent was confronted by a female neighbour. The respondent held the axe and knife in a threatening manner towards the neighbour and stated that she should 'just keep running'. The respondent then reversed the vehicle that he had stolen in the direction of the neighbour causing her to jump out of the way.
The facts of the respondent's home burglary offence were that the respondent broke into a home and stole a car.
The facts of the respondent's assault public officer offence were that on 30 December 2006 he attempted to escape from police custody and in the course of doing so pushed a police officer to the ground.
The facts of the respondent's assault offence were that on 17 February 2007 he hit a security guard with a wheel brace after he was questioned by the security guard about a stolen vehicle.

Reports

Over the years many reports have been prepared in relation to the respondent. I have had regard to these reports all of which are annexed to Mr Meertens' affidavit. For present purposes, however, it suffices for me to refer specifically to the following:
1.The most recent pre‑sentence report and psychiatric report prepared for the purposes of the sentencing of the respondent for the index offences;
2The report prepared in relation to the respondent's completion of the Pathways Program while in prison for the index offences;
3.The report prepared in relation to the respondent's completion of the Violent Offender Treatment Program while in prison for the index offences;
4.The report prepared in relation to the respondent's eligibility for release on parole in respect of the index offences;
5.The report prepared in relation to the respondent's breach of the parole order made in respect of the index offences;
6.The most recent Treatment Assessment report relating to the respondent; and
7.A Pathways Program cancellation report.

Reports prepared for the purposes of the sentencing of the respondent for the index offences

Pre‑sentence report

The pre‑sentence report is dated 5 October 2016 and reveals the following.[17]
[17] An earlier pre‑sentence report dated 10 June 2016 was also prepared for the purposes of the sentencing of the respondent for the index offences. It is not necessary to refer to this earlier report.
The respondent took responsibility for the index offences and expressed disappointment in himself. He recognised the effect that his antisocial behaviour had, over the years, had on his family. He acknowledged that as a result of his offending behaviour he had missed out on a great portion of his children's lives.
The respondent completed the Prison Cognitive Brief Intervention Program at Casuarina Prison on 9 September 2016. The respondent displayed a good understanding of the Cognitive Behaviour Model and was able to relate this to his offending behaviour. The respondent made some treatment gains from his participation in the program. He was able to develop a relapse prevention plan.
The respondent was able to identify his ongoing depression, substance abuse and negative peer associations as underlying triggers to his criminal behaviour. He was able to identify how these triggers have influenced him to engage in impulsive and high risk behaviour.
The following factors were identified as being directly linked to the respondent's offending: mental health issues - depression; grief and loss; lack of emotional management; poor decision‑making skills and lack of consequential thinking; entrenched offending history, pro‑criminal attitude and violent offending; history of substance abuse issues; limited positive community supports; and unemployment.
The writer of the report concluded that although the respondent appeared to have made some positive gains he presented with an extensive offending history and continued to require intensive and prolonged intervention to address his outstanding treatment needs.

Psychiatric report

The psychiatric report was prepared by Dr Steve Patchett, consultant psychiatrist. The report is dated 11 October 2016. Dr Patchett's report reveals the following.
The respondent accepted responsibility for the index offences.
The respondent reported that at the time of committing the index offences he was using methylamphetamine and was suffering from paranoid beliefs which resulted in him embarking on a crime spree.
The respondent reported that he had a significant alcohol and substance use problem. He stated that he identified as an 'alcoholic'. He admitted to being a lifelong user of cannabis and methylamphetamine. He expressed a commitment to addressing his substance use problems. He reported that he had abstained from substance use since being incarcerated.
In Dr Patchett's assessment the respondent was cognitively reasonably orientated, although his attention and concentration were slightly impaired and his memory was similarly mildly impaired.
In Dr Patchett's view the respondent appeared to have reasonable insight into the causative effects of substance abuse on his behaviour.
Dr Patchett concluded that the respondent was not suffering from a sustained serious mental illness. Dr Patchett diagnosed the respondent as having mental and behavioural disorders due to use of alcohol and amphetamines and a dissocial personality disorder.
Dr Patchett identified the disabilities of the respondent to be a lifelong failure to engage in meaningful employment, family conflict and estrangement, and poor functioning in a broader social context.
Dr Patchett identified the contextual factors present in the respondent's case to be a history of failure to comply with alcohol and other drug treatment and rehabilitation, a low level of literacy, and housing problems such as unstable placement and discord with neighbours.
Dr Patchett concluded that the respondent's repeated offending related to his underlying dissocial personality and chronic alcohol and other drug abuse. Dr Patchett formed the view that the respondent committed the index offences as a result of a drug (methylamphetamine) induced psychotic episode which had since resolved completely.
Dr Patchett recommended that the respondent continue his efforts to address and manage his alcohol and other drug use disorders.

Pathways Program completion report

The report relating to the respondent's participation in, and completion of, the Pathways Program is dated 5 December 2017. The report reveals the following.
The respondent completed the Pathways Program on 23 November 2017.
The Pathways Program is a high intensity 100‑hour structured program which provides treatment to individuals who have a history of offending behaviour and substance use problems. It is an intensive, cognitive‑behavioural, skills‑based program and attends to both personal circumstances (events that led to criminal conduct and substance use) and intrapersonal processes (thoughts, emotions, beliefs and attitudes) that lead to criminal conduct and substance abuse. During the program participants also receive individual sessions.
The respondent was generally quiet and observant throughout the program. He addressed the group in a slow, hesitant and considered manner.
The respondent demonstrated a maturity and focus within the group. His contributions to group discussions while limited were constructive and relevant.
The program facilitators assessed the respondent's treatment needs to be as follows:
1.Entrenched alcohol and other drug use and associated criminal conduct lifestyle patterns supported by some antisocial beliefs and cognitions;
2.Poor problem solving and decision‑making skills, exacerbated by substance abuse and depression, weak emotional regulation and coping skills, and antisocial modelling;
3.Association with negative antisocial peers, limited utilisation of healthy support networks and a lack of responsible prosocial leisure time;
4.Limited stable employment experience to facilitate engagement in positive routines, or prosocial and responsible self‑identity;
5.Lack of stable accommodation to facilitate stability required for change; and
6.Possible ongoing unresolved issues from childhood and mental health issues such as anxiety.
Throughout the program the respondent displayed a willingness to disclose personal experiences. The respondent demonstrated a supportive attitude towards treatment interventions.
The respondent utilised the facilitators to discuss his periodic urges towards drug use and to affirm the strategies that he was implementing including diverting his attention with exercise, positive self‑talk and relaxation techniques.
During the program the respondent demonstrated awareness of the triggers relating to his offending. He was able to demonstrate capabilities in skills such as reframing to focus and channel his thinking into supporting more prosocial outcomes for himself and the community.
The respondent presented as motivated to continue to focus on his goals, maintain his personal boundaries and not allow feelings of regret or shame to undermine him.
The respondent demonstrated sufficiently capable literacy skills and a capacity for empathetic and consequential thinking.
The facilitators recommended that the following post‑release interventions be implemented to manage the respondent's risk of reoffending:
1.Relevant substance use and/or personal counselling support including urinalysis and referral to appropriate community‑based programs to support development of self‑esteem, prosocial identity, prosocial problem solving and refusal skills;
2.Vocational support to enhance, gain and maintain legitimate employment, strategies to develop routine and stability, prosocial leisure activities and distancing from antisocial peers; and
3.Continued encouragement with appropriate agencies to gain suitable and stable accommodation and employment.

Violent Offending Treatment Program completion report

The report relating to the respondent's participation in, and completion of, the Violent Offending Treatment Program (VOTP) is dated 24 April 2019. The report reveals the following.
The respondent completed the VOTP on 28 March 2019.
The VOTP aims to assist offenders to gain a sound understanding of their offending behaviour, recognise the factors that contributed to their offending, and develop a viable and manageable relapse prevention plan specific to their offending patterns and behaviour. The program includes models in areas such as effective decision‑making, interpersonal skills, emotions and anger management, non‑criminal thinking, perspective taking and relapse prevention.
Throughout the program the respondent presented as quietly spoken. The respondent's contributions to group discussions were limited and vague.
The respondent verbalised a high level of motivation to attend and make treatment gains in the program. However, he presented as resistant to the program and maintained this stance throughout the program.
The respondent displayed a general disregard for attending the program on time. He relied on prompting from the facilitators to contribute to group discussions. He displayed passive aggressive behaviour and appeared to distance himself from other group members. His engagement in the program was often vague and lacked depth of insight.
The respondent expressed the view that he had developed a prosocial identity while serving his current sentence and that he was able to separate his past antisocial lifestyle from his new sense of self. However, the respondent was unable or unwilling to specify the skills or concepts that had helped him achieve this 'new self'.
When the facilitators met with the respondent on several occasions to discuss his participation and engagement in the program the respondent denied or justified his behaviour and perspective.

In the view of the facilitators the pattern of behaviour that the respondent displayed during the program paralleled his behaviour in the community and his tendency to engage in victim stance beliefs and thought patterns.
The respondent demonstrated little insight into his offending. He minimised and described the index offences as being of a lesser degree of severity when compared to his earlier offences. The respondent minimised the impact of his weapon use. He was unwilling to explore high risk factors involving violence in the future. He perceived himself to be at a low risk of reoffending.
The respondent was able to demonstrate some awareness into his substance use patterns and how his substance use significantly impacts upon his decision‑making skills which in turn results in an increase in offending behaviour. He was able to identify a link between negative peers and his offending behaviour. The respondent perceived stable accommodation as the most significant factor to manage his substance use.
The respondent had limited insight into his treatment need areas and how they apply to him. In the facilitators' opinion alcohol use, substance use, a lack of emotional management, the ability to use effective decision‑making skills and the ability to communicate assertively using peer refusal skills remained outstanding treatment needs.
The facilitators concluded that the respondent lacked conceptual understanding of program skills and therefore was unable to apply program concepts. They considered that he remained at a pre‑contemplation stage of change due to not acknowledging and exploring his violent behaviour as a problem.
The facilitators recommended implementing the following strategies in order to reduce the respondent's risk to the community:
1.Support to connect with a counselling service to continue to work on the respondent's emotional management and self‑management skills;
2.Support to engage further intervention around the respondent's alcohol and drug use;
3.Random urinalysis for alcohol and illicit substances; and
4.Support to engage in meaningful activities and develop a prosocial support network.

Parole assessment report

The parole assessment report is dated 24 April 2019 and reveals the following.
In around April 2019 a senior community corrections officer (CCO) within the Corrective Services division of the Department of Justice assessed the respondent for release on parole.
The CCO considered that the respondent had made some treatment gains from his completion of the VOTP.
In assessing the likelihood of the respondent complying with parole order obligations and requirements the CCO reported that the respondent had not accrued any prison incidents or charges since late 2017 and that he had complied with a previous period on parole in 2006.
The respondent expressed the view to the CCO that he would benefit from a period of supervision in the community.
Overall the CCO supported the respondent's release conditionally pending the availability of accommodation at The Bridge Inc, a residential rehabilitation program. The CCO's reasons for supporting the respondent's conditional release were as follows:
1.The respondent had completed two intensive programmatic interventions during his term of imprisonment, specifically the Pathways Program and the VOTP;
2.The respondent had linked in with community based services for support with counselling and employment upon release;
3.The respondent had support from his partner and would be able to live with his partner if he was not able to enter a residential rehabilitation program, or upon completion of such a program;
4.Given his entrenched criminal history and repeat pattern of offending behaviour, intensive supervision, support and ongoing counselling may assist the respondent to discontinue his cycle of relapse and reoffending;
5.The conditions of parole may further reduce the risk to the safety of the community; and
6.Supervision for the remainder of the respondent's sentence in the community would provide a forum for monitoring his behaviour, and may assist his reintegration and rehabilitation, which is likely to offer more protection to the community in the long term than his release without any supervision at the end of his sentence.

Breach of parole report

The report relating to the respondent's breach of his parole order, which is dated 29 October 2019, was prepared by a senior CCO within the Corrective Services division of the Department of Justice (not the CCO who had prepared the parole assessment report). The report reveals the following.
On 13 June 2019 the respondent was released on parole for the index offences. The parole order was due to expire on 3 December 2020.
On 13 September 2019 the respondent's parole order was suspended. The respondent breached the parole order by providing a positive urine sample to methylamphetamine on 30 August 2019, and by failing to attend supervision and urinalysis on 10 September 2019 and 12 September 2019. On 8 October 2019 the respondent was returned to custody.
After being released the respondent initially resided at The Bridge Inc. However, he was asked to leave after a few weeks due to drug use. The respondent's parole conditions were amended to enable him to reside with his partner.
In relation to employment, the respondent engaged with Ngalla Maya. He completed a construction course and obtained full time work. However, the respondent struggled so soon after release with working long hours six days a week. He therefore gave up his job after a few weeks.
The respondent had some involvement with the Mead Centre in relation to his mental health. However, he failed to take his medication consistently.
The respondent's explanation for breaching his parole order was, in essence, that he was struggling in the community, had relapsed into methylamphetamine use, had put too many expectations on himself, was trying to make up for lost time with his family, and was struggling with unresolved grief and loss after his father had passed away while he was in custody. The respondent reported that living with his partner did not end up working out which led to accommodation issues for the weeks prior to his parole suspension, and that the relationship had since ended.
The respondent's new release plan was to reside with his sister. The accommodation was assessed as suitable.
Inquiries were made with Richmond Wellbeing and the Aboriginal Outreach Service. Both agencies indicated a willingness to provide support to the respondent.
The respondent reported that he might reconnect with Ngalla Maya for employment and courses, but that he thought that seeking assistance through the Wirrpanda Foundation might be a better option for him.
The CCO recommended that the Prisoners Review Board consider cancelling the respondent's suspension and providing him with another opportunity of parole. The CCO noted in this context that the respondent had suitable accommodation, had support from his sister and Richmond Wellbeing and was committed to engaging with the necessary mental health, substance abuse and employment services to assist him to lead a healthy and prosocial lifestyle.

Treatment Assessment report

The Treatment Assessment report relates to an assessment of the respondent performed on 26 February 2020. The report reveals the following.
Based on the assessment the respondent presented as being at 'very high risk for general reoffending on the LS/RNR'.
It was recommended that the respondent re‑complete the Pathways Program to build on the treatment gains that he had made during his 2017 participation in the program.

Pathways Program booking cancellation report

The Pathways Program booking cancellation report is dated 26 June 2020 and reveals the following.
On 26 June 2020 the Pathways Program facilitators submitted a booking cancellation request in relation to the respondent completing the program. The cancellation request was submitted as a result of the respondent declining to participate in the program due to mental health issues. The facilitators recommended that it may be beneficial for the respondent to be given the opportunity to complete the Pathways Program at another time.

Decision

The respondent is a 42‑year‑old man who over his lifetime has committed a large number of offences, including robbery offences, which have involved the use of significant violence or threats of violence to facilitate the theft of property from individuals, residential premises and retail premises. The sentences that have been imposed on him for his offences have not deterred him from continuing to offend in a similar manner. The respondent is a recidivist offender.
Since being sentenced for the index offences the respondent has completed two intensive programs, the Pathways Program and the VOTP. Although the respondent appeared to make some gains from his completion of the Pathways Program, the gains that he made from his subsequent completion of the VOTP appear to have been far more limited. Indeed, the respondent's participation in the VOTP revealed him to have little insight into the seriousness of his conduct in committing the index offences, to be unwilling to explore the factors that place him at risk of engaging in further violent offending in the future, and to be of the misguided belief that he is at a low risk of committing further offences in the future.
It is tolerably clear from the material to which I have referred that the respondent still has significant treatment needs, not the least of which is his illicit substance use. His illicit substance use is a major causal factor in his offending.
The respondent's relapse into methylamphetamine use within a relatively short period of being released on parole and notwithstanding that he was at the time engaged in residential rehabilitation is an obvious cause for concern.
The respondent's history of offending, his significant outstanding treatment needs and his recent performance while on parole, when viewed in light of the assessment of the respondent's risk of reoffending contained in the above referred to Treatment Assessment report, all provide support for the conclusion that the respondent is currently at a very high risk of committing further serious offences.
Taking all of the above matters into account, and having regard to the matters specified in s 7(3) of the Act, I am satisfied in accordance with s 46(1) of the Act. More specifically, I am satisfied that there are reasonable grounds for believing that the court might find, in accordance with s 7, that the respondent is a high risk serious offender; that is, might find 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 respondent in order to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence. To put the matter another way, I have a belief in the possibility that the court will be satisfied to a high degree of probability that the respondent is a high risk serious offender. I will therefore, as sought by the applicant, make orders under s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the Act.
The question that remains is whether I should make an order pursuant to s 46(2)(c)(i) requiring the respondent to be detained in custody pending the determination of the restriction order application, or an order pursuant to s 58(5) of the Act that the respondent be placed on an interim supervision order until the determination of the restriction order application. The applicant submits that I should make an order pursuant to s 46(2)(c)(i).The respondent, as I have already indicated, submits that I should make an order pursuant to s 58(5).
Section 58 of the Act provides as follows:
58. Interim supervision order
(1)In this section -
specified means specified by the court in an order made under this section.
(2)This section applies if -
(a)proceedings on a restriction order application or an application made under section 49 or 53 are pending (the pending proceedings); and
(b)the offender to whom the pending proceedings relate is not in custody; and
(c)the court is satisfied that, to ensure adequate protection of the community, it is desirable to make an order under this section.
(3)If the offender is subject to a supervision order that may otherwise expire before the pending proceedings are finally determined, the court may at any time in the pending proceedings order that the supervision order is to continue until the pending proceedings are finally determined or until another specified date.
(4)If the offender has been subject to a supervision order that has expired, the court may at any time in the pending proceedings order that the supervision order is to be reinstated with effect from a specified date and is to continue until the pending proceedings are finally determined or until another specified date.
(5)In any other case, the court may at any time in the pending proceedings order that, with effect from a specified date and until the pending proceedings are finally determined or until another specified date, the offender is to be subject to stated conditions that the court, subject to subsection (6), considers appropriate.
(6)Section 30 applies to an order under this section as if it were a supervision order.
I note that it is appropriate to refer to an order made under s 58(5) as an 'interim supervision order' even though this term only appears in the heading to s 58, because the term 'interim supervision order' is defined in s 3 of the Act to mean an order under s 58.[18]
[18] This differs from the position that existed under the DSO Act. Under the DSO Act the term 'interim supervision order' was not separately defined. Rather, the term 'supervision order' was defined in s 3 of the DSO Act to include an order under s 27A(5) which was the equivalent, albeit not identically worded, provision to s 58(5) of the Act.
By reason of s 58(2), before I can make an interim supervision order under s 58(5), the following requirements must be met:
1.There must be proceedings on a restriction order application made pursuant to s 35(1) that are pending;
2.The offender to whom the pending proceedings relate must not be in custody; and
3.I must be satisfied that it is desirable to make an order under the section in order to ensure adequate protection of the community.
In the respondent's case proceedings on a restriction order application made under s 35(1) are pending. Therefore the first requirement is met.
As to the second requirement the respondent, as I have previously indicated, is currently in custody serving his sentence for the index offences and is not due to be released until 28 December 2020. Therefore, on the face of it, the second requirement for the making of an interim supervision order under s 58(5) is not met. However, in The State of Western Australia v CA[19] Fiannaca J interpreted s 27A(2) of the DSO Act, which was the equivalent provision to s 58(5), to include the situation in which the offender will not be in custody on a specified future date before the application for the Division 2 order (this being the equivalent of an application for a restriction order under the Act) is finally determined.
[19] The State of Western Australia v CA [2020] WASC 164 [22] ‑ [33].
For reasons of judicial comity I should adopt Fiannaca J's interpretation of s 27A(2) of the DSO Act and apply it to s 58(5) of the Act unless I am convinced that the interpretation is wrong. Although I consider that there is a real question as to whether s 58(5) can be interpreted so as to apply to a situation such as the present where the offender is in custody as a sentenced prisoner at the time of the determination of the application for the orders pursuant to s 46(2) of the Act, I am not, having read the relevant paragraphs of Fiannaca J's decision, convinced that his Honour's interpretation of s 27A(2) of the DSO Act is wrong. In these circumstances I will adopt and apply his Honour's interpretation of s 27A(2) of the DSO Act to s 58(5).[20] Accordingly, given that the respondent is due to be released on 28 December 2020, which will be before the restriction order application is finally determined, I find that the second requirement specified in s 58(2) is met in the respondent's case.
[20] In at least two other applications of the same type that have come before this court, a similar approach has been adopted by the presiding judge although in each instance the judge has in effect expressed the view that the correctness of Fiannaca J's interpretation of s 27A(2) of the DSO Act remains open to question: The State of Western Australia v Cox Aka Roe, HRSO 1 of 2020, 27 August 2020, ts 50 (Allanson J); The State of Western Australia v OJD, HRSO 2 of 2020, 4 September 2020, ts 29 (Hill J).
It follows from my findings that the first two requirements specified in s 58(2) are met that it is open to me to make an interim supervision order under s 58(5), as opposed to an order for the detention of the respondent under s 46(2)(c)(i), provided that I am satisfied that it is desirable to do so to ensure adequate protection of the community. Of course, it should not be overlooked that it is also open to me, given the non‑prescriptive wording of both s 46(2)(c)(i) and s 58(5), to make neither a detention order nor an interim supervision order pending the determination of the restriction order application. I note, however, that the respondent did not attempt to contend that it would be an appropriate outcome for me not to make at least an interim supervision order pending the determination of the restriction order application.
In determining if I should, in the exercise of my discretion, make an interim supervision order rather than a detention order pending the determination of the restriction order application, the factors to be taken into account are as follows:[21]
1.The likelihood of the applicant ultimately satisfying the court that the respondent is a high risk serious offender, to the extent that this can be assessed;
2.The extent to which the court can be satisfied not only that the respondent will adhere to the conditions of an interim supervision order but also that adherence to the conditions of an interim supervision order will ensure the adequate protection of the community against the unacceptable risk that the respondent may ultimately be found to pose to the community; and
3.The undesirability of depriving the respondent of his liberty prior to the restriction order application being finally determined, bearing in mind that the application may ultimately be refused.
[21] Director of Public Prosecutions for Western Australia v Paul Douglas Allen also known as Paul Alan Francis Deverell [2006] WASC 160 [62] ‑ [64]; The State of Western Australia v Ryan [21].
The applicant has provided a draft version of the interim supervision order (the draft interim supervision order) that it contends should be made in the event that I reject its primary submission that the respondent should be detained in custody pending the determination of the restriction order application. The draft interim supervision order provides for the respondent's release from 28 December 2020 and contains a total of 30 conditions. The conditions include, but are not limited to, the following:
1.The conditions that must form part of a supervision order (as opposed to an interim supervision order) as specified in s 30(2) of the Act;
2.A residential condition (requiring the respondent to live at his sister's residence with his sister and mother);
3.A curfew condition;
4.Conditions requiring the respondent to report to a community corrections officer (CCO) and the police as directed;
5.Conditions prohibiting the respondent from possessing, using and consuming prohibited drugs and alcohol;
6.Conditions requiring the respondent to submit himself to urinalysis testing and other testing for prohibited drugs and alcohol;
7.Conditions prohibiting the respondent from attending licensed premises or from remaining in the presence of anyone affected by alcohol or prohibited drugs;
8.A condition requiring the respondent to disclose to a CCO the identity of any persons with whom he is associating; and
9.A condition requiring the respondent to permit a CCO and the police to access any telecommunication device being used by him.

The respondent has indicated that he is willing to subject himself to the conditions contained in the draft interim supervision order.
As to the first of the above referred to factors to be taken into account in determining if I should make an interim supervision order rather than a detention order pending the determination of the restriction order application, I am satisfied on the basis of what is before me that there are relatively strong prospects of the applicant satisfying the court that the respondent is a high risk serious offender.
With respect to the second of the above referred to factors, the applicant submits that given the respondent's entrenched illicit substance use problem, the connection between the respondent's illicit substance use and his offending, and the respondent's recent relapse into illicit substance use while on parole, the court can have no confidence in the respondent's ability to comply with the conditions of an interim supervision order as set out in the draft interim supervision order. The respondent, on the other hand, submits, in essence, that there are good grounds for concluding that he will comply with the conditions of the draft interim supervision order. In support of this submission the respondent points out that his proposed accommodation with his sister and mother is stable and was assessed by the writer of the previously referred to breach of parole report as suitable, that his sister and mother are supportive of him, that the draft interim supervision order conditions are stringent (far more stringent than parole conditions) and that he has an incentive to comply with the draft interim supervision order conditions in that compliance will increase his prospects of obtaining a successful outcome on the restriction order application, or at least an outcome that will not involve him being made the subject of a continuing detention order.
The conditions contained in the draft interim supervision order are relatively stringent. I accept that they are more stringent than the conditions of the respondent's recent parole order. Nonetheless, when I take into account the respondent's relapse into illicit substance use during his most recent release on parole (illicit substance use being a major contributor to the respondent's offending behaviour) and the most recent assessment of the respondent's risk of reoffending as being very high, I am not, on what is currently before me, able to satisfy myself to a sufficient degree that the respondent would adhere to the conditions of the draft interim supervision order until the determination of the restriction order application. This being the case, I am also not satisfied to a sufficient degree that to release the respondent on an interim supervision order will ensure adequate protection of the community against the unacceptable risk that he may ultimately be found to pose to the community. Accordingly, and while paying due regard to the undesirability of depriving the respondent of his liberty prior to the restriction order application being finally determined, I will make the order sought by the applicant under s 46(2)(c)(i) that the respondent be detained in custody until the restriction order application is finally determined.
Obviously, my decision not to make an interim supervision order cannot in any way be seen as binding the judge who ultimately hears the restriction order application. If the judge who ultimately hears the restriction order application does decide that the respondent is a high risk serious offender, it will of course be open to the judge to decide, on the basis of the more extensive and updated material that will as a result of the orders that I am about to make be before them, that the adequate protection of the community can be ensured by releasing the respondent on a supervision order.
There is one further issue I wish to briefly address.
In making his submissions in relation to the question whether the respondent should, pending the determination of the restriction order application, be detained or released on an interim supervision order, the applicant's counsel argued that an additional reason for not releasing the respondent on an interim supervision order is that the Act, due to what appears to be a legislative oversight, does not contain any provisions that enable the conditions of an interim supervision order, as opposed to a supervision order, to be enforced. Counsel contended in this context that div 5 and s 80 of the Act apply only to a supervision order imposed under the Act which is by definition distinct from an interim supervision order imposed under s 58(3), s 58(4) or s 58(5) of the Act. The respondent's counsel did not seek to advance a contrary argument.
It seems to me that there is some merit in the applicant's counsel's argument that div 5 and s 80 of the Act cannot be construed as applying to an interim supervision order made under s 58(3), s 58(4) or s 58(5) of the Act. However, for reasons that are apparent from what I have already said, the question is not one that I need to finally decide in order to deal with the application. I therefore refrain from doing so. I note, however, that if it is assumed that the applicant's counsel's argument is correct, I have some difficulty with the proposition that the lacuna in the legislation can properly be relied upon as a basis for refusing to release a person in the respondent's position on an interim supervision order pursuant to s 58(5) if, on a consideration of the factors which I have identified in par 144 above, the court concludes that it is appropriate to do so. This is particularly so given that any orders releasing an offender on an interim supervision order can include an order giving the parties liberty to apply generally which will enable the State to bring an urgent application to revoke the interim supervision order if the offender is contravening, or appears to be at risk of contravening, the conditions of the order.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick
11 DECEMBER 2020