The State of Western Australia v MAR [No 5] - [2023] WASC 434

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- MAR [No 5] [2023] WASC 434
CORAM:   STRK J
HEARD:   10 NOVEMBER 2023
DELIVERED          :   10 NOVEMBER 2023
PUBLISHED           :   13 NOVEMBER 2023
FILE NO/S:   SO 8 of 2020
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
MAR
Respondent

Catchwords:

Criminal law - Contravention proceedings - Application made under s 53 and s 55 of the High Risk Serious Offenders Act 2020 (WA) for the rescission of a supervision order and for a continuing detention order to be made - Whether on the balance of probabilities the respondent has contravened the supervision order - Whether the supervision order should be rescinded, affirmed, amended or extended - No accommodation available - Turns on own facts.

Legislation:

Criminal Code 1913 (WA)
Dangerous Sexual Offenders Act 2006 (WA) (repealed)
High Risk Serious Offenders Act 2020 (WA)

Result:

Supervision order rescinded
Continuing detention order made

Category: B

Representation:

Counsel:

Applicant	:	Mr D McDonnell
Respondent	:	Mr T Hager

Solicitors:

Applicant	:	State Solicitors Office
Respondent	:	Albert Wolff Chambers

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

Director of Public Prosecutions for Western Australia v Griffiths [2015] WASC 393
Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4
Director of Public Prosecutions for Western Australia v Williams [2007] WASCA 206; (2007) 35 WAR 297
Garlett v The State of Western Australia [2022] HCA 30
The State of Western Australia v ACJ [2021] WASC 219
The State of Western Australia v CA [2023] WASC 144
The State of Western Australia v Corbett [No 5] [2017] WASC 115
The State of Western Australia v Gorham [No 2] [2022] WASC 351
The State of Western Australia v MAR [No 2] [2021] WASC 97
The State of Western Australia v MAR [No 3] [2022] WASC 371
The State of Western Australia v MAR [No 4] [2023] WASC 271
The State of Western Australia v ZSJ [2020] WASC 330

STRK J:

Introduction

This is a contravention hearing under the High Risk Serious Offenders Act 2020 (WA) in respect of the respondent.
On 14 April 2021, having found the respondent to be a high risk serious offender within the meaning of s 7(1) of the High Risk Serious Offenders Act, the court made a continuous detention order in relation to the respondent: The State of Western Australia v MAR [No 2] [2021] WASC 97. The respondent's history and the evidence that led the court to conclude that the respondent was a high risk serious offender and that a continuous detention order was the appropriate restriction order at that time was set out in detail in the reasons for decision delivered by Tottle J.
Part 5 of the High Risk Serious Offenders Act provides for the periodic review of an offender's detention under a continuous detention order. The first review of the respondent's continuous detention order was heard over 25 July, 31 August and 21 October 2022 before Fiannaca J.
For the reasons delivered on 25 October 2022, upon the first review, Fiannaca J was satisfied that the respondent remained a high risk serious offender, but was also satisfied that the adequate protection of the community against the risk that the respondent would commit a serious offence could be ensured by a supervision order, if the respondent were to be released on the standard conditions provided by the High Risk Serious Offenders Act and further conditions proposed by the State: The State of Western Australia v MAR [No 3] [2022] WASC 371. It was ordered that the continuing detention order made on 14 April 2021 be taken to be rescinded from 2 November 2022; and from 2 November 2022, when not in custody, the respondent be subject to conditions in the terms of a supervision order, which order was to have effect for a period of five years from 2 November 2022. The supervision order comprised 51 conditions. The supervision order conditions (in redacted form) are reproduced at sch A to these reasons.
On 18 July 2023, the State filed an application under s 53 of the High Risk Serious Offenders Act commencing contravention proceedings under s 55 in relation to alleged contraventions of the supervision order.
For the reasons delivered on 21 July 2023, on the application of the State under s 53(2)(b) of the High Risk Serious Offenders Act, I determined that the respondent would be detained in custody on an interim detention order pending the determination of the contravention proceedings: The State of Western Australia v MAR [No 4] [2023] WASC 271.
The State now seeks orders that the supervision order be rescinded and a continuing detention order made.
The matters I must decide are:
(1)whether, on the balance of probabilities, the respondent has contravened the supervision order; and if so
(2)whether the supervision order should be rescinded and a continuing detention order made or whether the respondent should be permitted to remain on the supervision order with or without amendment or extension.
For the reasons which follow:
(1)I am satisfied that the respondent has contravened the supervision order; and
(2)I have decided to rescind the supervision order and make a continuing detention order in relation to the respondent.

Statutory framework and legal principles

The objects of the High Risk Serious Offenders 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.[1]
[1] High Risk Serious Offenders Act s 8.
The jurisprudence established in respect of the Dangerous Sexual Offenders Act 2006 (WA) is relevant in construing and applying the High Risk Serious Offenders Act, with necessary adaptation.[2]
[2] The State of Western Australia v ZSJ [2020] WASC 330 [31].
The powers conferred by the High Risk Serious Offenders 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.[3]
[3] Garlett v The State of Western Australia [2022] HCA 30; (2022) 404 ALR 182 [55] ‑ [56].
If an offender is charged with an offence under s 80(1) of the High Risk Serious Offenders Act, s 53 provides that the State may make an application for an order under s 55. On such an application, if the court is satisfied on the balance of probabilities that the offender has contravened, is contravening, or is likely to contravene a condition of a supervision order, the court must rescind the supervision order and make a continuing detention order, or, subject to s 29, release the offender on the supervision order. In the latter case, the supervision order may be amended and, in some cases, extended.[4]
[4] High Risk Serious Offenders Act s 55.
It is to be assumed that the respondent remains a high risk serious offender. The court is not required to make that determination again.[5] In deciding which order to make, the paramount consideration is to be the need to ensure adequate protection of the community.[6]
[5] The State of Western Australia v CA [2023] WASC 144 [28].
[6] High Risk Serious Offenders Act s 55(3).
A continuing detention order is an order that the offender be detained in custody for an indefinite term for control, care or treatment.[7] 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 High Risk Serious Offenders Act.[8]
[7] High Risk Serious Offenders Act s 3, s 26(1).
[8] High Risk Serious Offenders Act s 3, s 27(1).
The court cannot release an offender on a supervision order 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.[9]
[9] High Risk Serious Offenders Act s 29, s 55.
The standard conditions of a supervision order are set out in s 30 of the High Risk Serious Offenders Act and include the requirement that the offender not commit a serious offence during the period of the order.[10]
[10] High Risk Serious Offenders Act s 30(2)(f).
In Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 at [52(6)], Fiannaca J observed that, 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.
Even if the court is satisfied that the offender will substantially comply with the standard conditions of a supervision order, the court must not release the offender unless satisfied that a supervision order will ensure an adequate degree of protection to the community.[11] When considering whether a supervision order would adequately protect the community, it is necessary to take into account any conditions which can be placed on a supervision order so as to ensure the adequate protection of the community, the rehabilitation of the respondent and his care and treatment. As was observed by Hall J in Director of Public Prosecutions for Western Australia v Griffiths [2015] WASC 393 at [107], there is no requirement that:
there be no risk of reoffending. Such a requirement could never be met and the effect would be that no person to whom the Act applies would ever be released. The requirement is that any risk be reduced to a reasonably acceptable level. This will always require a careful weighing of the nature and degree of risk and the context of methods for the management and reduction of that risk.
[11] The State of Western Australia v ACJ [2021] WASC 219 [38].
Counsel for the State submitted that the court should also have regard to the further matter of principle from Director of Public Prosecutions for Western Australia v Williams [2007] WASCA 206; (2007) 35 WAR 297 at [86]:[12]
Of course, if, as was not the case here, his Honour had been satisfied that he had before him all relevant evidence concerning possible conditions which might be imposed on a supervision order, but was simply left in doubt as to whether such an order would adequately protect the community, then, having regard to s 17(2), it would have been necessary for him to have made a continuing detention order.
[12] State's submissions filed 6 November 2023 par 82. I note that the Court of Appeal in Director of Public Prosecutions for Western Australia v Williams considered s 17(2) of the Dangerous Sexual Offenders Act, a section equivalent to s 55(3) of the High Risk Serious Offenders Act.
As noted on behalf of the State,[13] in The State of Western Australia v Gorham [No 2] [2022] WASC 351 at [55] Archer J articulated the following nine factors that were, in effect, identified by Fiannaca J in Director of Public Prosecutions for Western Australia v Hart as relevant to the assessment of whether a respondent will substantially comply with the standard conditions (the State further noting that Fiannaca J had also indicated that such factors would include the respondent's history of compliance and non‑compliance):
[13] State's submissions filed 6 November 2023 par 66.
(1)the respondent's attitude to the conditions of the supervision (in particular whether the respondent is likely to deliberately flout the conditions);
(2)the respondent's capacity to comply with the conditions;
(3)what measures there are in place to ensure that the respondent would substantially comply;
(4)the relative importance of any breach that might occur, in terms of the impact it would have on the practical effect of the supervision order in achieving the objects of the High Risk Serious Offenders Act;
(5)the respondent's motivation to remain offence free and in the community;
(6)any willing participation in a sex offender treatment program;
(7)abstinence from drugs;
(8)conduct while in prison; and
(9)demonstrated gains in treatment, self-management and life skills.
I applied the principles set out above in the disposition of the State's application in relation to alleged contraventions of the supervision order.

Evidence adduced at the contravention hearing

Books of materials

At the hearing of this application, I received into evidence a book of materials in three volumes. The first and second volumes were dated 31 August 2023. The third was dated 6 November 2023.[14]
[14] Exhibits 1A - 1C.
The first volume contains a copy of the State's application for review; the respondent's criminal record; copies of the judgments from previous restriction and review hearings; various Department of Justice prison records; and various medical and hospital notes.
The second volume contains materials concerning the contravention allegations, including prosecution notices, statements of material facts, transcripts of hearings before the Magistrates Court and historical assessment reports and documents.
The third volume contains updated contravention materials and reports prepared for this contravention hearing.
On 8 November 2023, the court was also provided with a bundle of documents, being Community Business Information System case notes concerning interactions with the respondent, recorded on various dates between October 2022 and October 2023. These case notes record details of the scheduled, unscheduled and intake contact with the respondent and his community corrections officer during this period. They were also received into evidence without objection.[15]
[15] Exhibit 1D.
At the contravention hearing, the State called three witnesses who gave evidence. They were:
(a)Dr Peter Wynn Owen, the author of the psychiatric report dated 31 October 2023;
(b)Dr Sarah Barbas, the author of the treatment progress report dated 16 October 2023; and
(c)Ms Katrina Czechowski, a senior community corrections officer within the Community Offender Monitoring Unit of the Department of Justice. Ms Czechowski was the author of and one of the three signatories to a community supervision assessment report dated 3 November 2023.

Alleged contravention offences

Since the respondent was released on the supervision order on 2 November 2022, he was charged with 25 offences. In respect of all of the charges, by the contravention hearing the respondent had pleaded guilty and received penalties which included fines, community based orders and in some cases, no penalty.[16] The offences gave rise to 19 contraventions of the respondent's supervision order.[17]
[16] Affidavit of DS McDonnell pars 12, 40.
[17] Book of materials (volume 2), page 301, particulars of contravention allegations.
On 31 August 2023, the State filed particulars of the contravention allegations which concerned the application of the State under s 53(2)(b) of the High Risk Serious Offenders Act.[18] The particulars provided by the State were consistent with my description of the contravention allegations in the reasons delivered on 21 July 2023: The State of Western Australia v MAR [No 4] [20] ‑ [86]. I refer to that earlier description as if set out here in full.
[18] Book of materials (volume 2), pages 301 - 308, particulars of contravention allegations.
After the hearing on 21 July 2023, the respondent was convicted on his plea of guilty to charge PE 35506/23 (described at [83] - [86] of my reasons), and was fined $500.[19]
[19] Book of materials (volume 2), page 307, particulars of contravention allegations.
For completeness, I note that the respondent was also charged with a further offence under s 80(1) of the High Risk Serious Offenders Act which involved being in possession of mobile devices not disclosed to his community corrections officer or a police officer (charge PE 45566/23). The State does not seek to rely on the pending charge for the purposes of the contravention application.[20]
[20] State's submissions filed 6 November 2023 par 14.
In addition to the contravention offences, the respondent was the subject of five written warnings between November 2022 and January 2023. The warnings were issued to the respondent for failing to accurately record information in his diary; failing to report for supervision; entering into exclusion zones; a positive drug test and the respondent's interactions with females.

Evidence of Dr Wynn Owen - psychiatric report

On 21 July 2023, I ordered that the respondent undergo an examination by a qualified expert, namely psychiatrist Dr Wynn Owen, for the purposes of preparing a report as required by s 74 of the High Risk Serious Offenders Act to be used at the hearing of the contravention application.
Dr Wynn Owen had prepared reports for earlier hearings concerning the respondent. I also note that the respondent's previous assessments by Dr Wynn Owen and treatment history were comprehensively summarised by Fiannaca J in The State of Western Australia v MAR [No 3] at [62] ‑ [87] and [180] - [234], and Tottle J in The State of Western Australia v MAR [No 2] at [27] - [41].
Dr Wynn Owen's report prepared for this contravention hearing, among other things, recorded his credentials and professional background; that it had been explained to the respondent that the interview with Dr Wynn Owen was not confidential; that Dr Wynn Owen had no conflict of interest; the information sources upon which Dr Wynn Owen relied; the respondent's history of serious offending and other historical offending; the background to this contravention proceeding; the respondent's performance while on the supervision order which included a description of the respondent's convictions while on supervision; the respondent's treatment progress since his release on supervision; the respondent's prison behaviour and the respondent's medical issues as addressed by Dr Barbas' report (described at [69] below).
In his report, Dr Wynn Owen made observations as to the respondent's current psychiatric symptomatology, and among other things, reported that no symptoms of mental illness were elicited on systematic enquiry. In the course of his evidence, Dr Wynn Owen stated that in the tests he had administered, he had not observed any cognitive defects or impediments.[21]
[21] ts 278 (10 November 2023).
As to the respondent's current sexual thinking and function, Dr Wynn Owen recorded that the respondent had reported that he had low levels of sexual interest since his return to prison and that he denied any deviant sexual interest. He also recorded that the respondent had admitted that he had searched for and viewed pornography depicting simulated home invasion and rape but did not think about any link with his past offending.
As to the respondent's mental state, among other things, Dr Wynn Owen noted that the respondent showed no signs of formal thought disorder, perceptual disturbance or delusion. The respondent's psychiatric diagnoses of substance use disorder (alcohol, cannabis) and antisocial personality disorder were affirmed.
In his report, Dr Wynn Owen set out his risk assessment analysis, which he noted must be considered in conjunction with his previous report dated 17 March 2021 (contained in the Book of Materials Volume 2 at pages 451 ‑ 480). Among other things, Dr Wynn Owen acknowledged that the most reliable indicator of future behaviour is past behaviour, particularly if there is an established and enduring pattern. In undertaking the risk assessment, Dr Wynn Owen recorded that he used two tools (described below). He cautioned that the risk assessment tools administered had not been extensively validated for Indigenous Australian offenders and can artificially elevate the risk assessment.

Dr Wynn Owen recorded in his report that he had relied upon the Static‑99R (2016 revision), recording that the respondent's score was in the Level IVb or 'Well Above Average Risk' range. He noted that on release the likelihood of individuals within this range committing a new sexual offence within 5 years is 30.7% and within 10 years is 42.8%.
Following review of the respondent's previously identified Risk for Sexual Violence Protocol (RSVP) dynamic risk factors, Dr Wynn Owen expressed the view that the apparent gains made by the respondent in prison in relation to substance use, emotional self‑regulation and management, problems with treatment and problems with planning, had not been sustained.
As to sexual violence history, Dr Wynn Owen recorded that he considered that four of five RSVP historical risk factors (chronicity, diversity, psychological coercion and physical coercion) were present.
As to the domain described as 'psychological adjustment', Dr Wynn Owen recorded that he considered that five of five risk factors were present and the risk factors 'extreme minimisation or denial of sexual violence', 'attitudes that support and condone sexual violence' and 'child abuse' remained unchanged. Dr Wynn Owen recorded that the risk factor 'problems with self‑awareness' was present, noting that the respondent consistently placed himself in high risk situations but has not demonstrated a clear understanding of why he should not be alone with females or in the company of intoxicated females. He noted that the respondent minimised the importance of his substance use to his offending, despite the presence and significance of this risk factor having been highlighted by the respondent's time in the community. He recorded that the risk factor 'problems with stress or coping' was also present.
As to the domain described as 'mental disorder', Dr Wynn Owen recorded that he considered that two of five RSVP factors in this domain were present. He noted that the risk factor 'problems with substance use' was clearly apparent during the period under review, as the respondent has been unable to abstain from alcohol or cannabis notwithstanding repeated warnings, repeated returns to custody and despite suffering from numerous physical health issues. Dr Wynn Owen opined that substance abuse was directly associated with the respondent's future risk of serious offending. It was also recorded that the risk factor 'violent or suicidal ideation' was present as despite the respondent denying this in interview, he had reported hopelessness and suicidal thinking to his psychologist and community corrections officer.
As to the domain described as 'social adjustment', Dr Wynn Owen considered that four of four risk factors were present, including the risk factors 'problems with intimate and non‑intimate relationships'. It was recorded that the respondent's peer relationships had been with individuals who have encouraged substance use and other breaches of supervision conditions such as curfews and exclusion zones. Dr Wynn Owen opined that problems with intimate and non‑intimate relationships were associated with an elevated risk of future offending, and the significance had been highlighted to the respondent while subject to community supervision. Dr Wynn Owen also recorded that the risk factor 'problems with employment' was present as the respondent found unstructured time and boredom difficult to manage. He also recorded that the risk factor 'non‑sexual criminality' remained unchanged.
As to the domain described as 'manageability', Dr Wynn Owen noted that the risk factor 'problems with planning' was present as the respondent appeared to have made achievable plans for release when he was last assessed, but had been unable implement those plans in the community. It was noted that after December 2022, the respondent was released to the community for no longer than two weeks at any one time. Dr Wynn Owen observed that the respondent's current plans were no different to his previous plans, and while the respondent continues to commit to abstinence from drugs and alcohol and compliance with supervision order conditions, Dr Wynn Owen opined that absent any demonstrated learning or change in attitude the respondent's capacity to achieve this seems unlikely. Dr Wynn Owen also recorded in his report that the respondent had raised concerns about his compliance with the conditions if he was to remain in metropolitan Perth.
In the course of his evidence, Dr Wynn Owen stated that he had seen no learning or change in the respondent's attitude that would suggest that his ability to function within the constraints of the supervision order would be now be any different. He did not see any evidence that the respondent would be more able, should he be released today, to abide by the orders than he has been in the duration of his period on the supervision order.[22]
[22] ts 272 (10 November 2023).
In his report Dr Wynn Owen recorded that the respondent had been dishonest about his actions and movements with the risk management team. In the course of his evidence, Dr Wynn Owen accepted that the respondent had concealed risk-relevant behaviours, noting that he had been dishonest in relation to substance use, both cannabis and alcohol, and dishonest in relation to his sexual thinking and internet use, for example, in terms of the type of pornography viewed. Dr Wynn Owen explained that honesty was important to the effectiveness of supervision and monitoring of the respondent while in the community. Dr Wynn Owen further opined that disclosure by the respondent to his psychologist was absolutely critical to the respondent benefiting from therapy to address his substance use and his sexual thinking and arousal, which are issues directly related to his risk of offending in the future.[23]
[23] ts 271 (10 November 2023).
In the course of his evidence, Dr Wynn Owen accepted that there was potentially a cultural barrier relating to the gender of the person to whom he was obliged to make disclosure, and suggested that working with males in positions of authority would be much more straightforward for the respondent, and he would probably be more likely to disclose to males, both in terms of his sexual thinking and in terms of behaviours that were at the edge of or potentially in contravention of his order.[24]
[24] ts 271 (10 November 2023).
Dr Wynn Owen recorded in his report that he considered that the risk factor 'problems with treatment' was also present, as the respondent had missed four psychologist appointments, had been unable to control his substance use, exercise peer refusal skills or actively seek prosocial activities and contacts despite considerable input and coaching from his psychologist and community corrections officer. Further, Dr Wynn Owen considered the risk factor 'problems with supervision' to also be present.
In his report Dr Wynn Owen recorded his opinion that the RSVP assessment highlighted that apparent gains made by the respondent in prison in relation to substance use, emotional self‑regulation and management, problems with treatment and problems with planning had not been sustained upon the respondent's release. He there noted the respondent's outstanding treatment needs related to sexual offending (sex as coping, sexual interest in teenage females and simulated forced sexual contact), intimate and non‑intimate relationships, planning and treatment.
Dr Wynn Owen recorded that in his opinion, the respondent continues to present a high risk of committing a future serious offence if not subject to a restriction order, with substance abuse and antisocial personality being his most significant risk factors, despite completing the Pathways program.
Dr Wynn Owen gave evidence to the effect that both alcohol and cannabis were implicated in the respondent's serious offending in the past, their use contribute to his future risk of offending, and their ongoing use places the respondent at an increased risk of future serious offending.[25]
[25] ts 273 (10 November 2023).
In the course of his evidence when asked in terms of reoffending scenarios what he considered would be the most likely type of serious offence committed by the respondent, if indeed the respondent does commit a serious offence, Dr Wynn Owen answered as follows:[26]
… it will be some form of contact sexual offence with a person who is either known to him or is in his - the social group that he happens to be with at the time. It could well be a woman, anything from teenaged through to an adult woman, who is perhaps intoxicated when he is also intoxicated. If there is somebody at his residence, and there have been women at his residence, that person may be somebody that he is unable to manage his sexual urges and attempts to make contact, sexual contact with, when they are either vulnerable through intoxication or even perhaps sleeping. So opportunistic offending, but possibly also planned offending, because there has been some planned offending of that sort in the past if he develops an interest in a particular individual that he sees more than once.
[26] ts 273 (10 November 2023).
In his report, Dr Wynn Owen recommended continuation of individual treatment with a departmental psychologist to address issues including emotional recognition and regulation, coping and stress management, sexual thinking and abstinence from substance use.
In his report Dr Wynn Owen expressed the view that the current supervision order addressed the high risk situations to the extent possible within such an order.
In his report Dr Wynn Owen suggested that if the respondent remains in detention, he should be assessed for participation in an intensive sex offender treatment program, ideally within a group comprising a high proportion of Indigenous offenders. As to his reasoning, in the course of his evidence Dr Wynn Owen explained:[27]
[The Respondent's] serious offending has predominantly been serious sexual offending, and that has been over a long period of time and with relatively high frequency. He has participated in just one treatment program and the outcome was not good, and he has subsequently reoffended. His sexual thinking has been hidden from the psychologist who he has been working with to treat. He has not openly disclosed his sexual thinking, preoccupation, fantasy, level of masturbation, libido, etcetera. These are all factors which are directly relevant to his sexual offending, as is his substance use, but I think they just haven't been addressed, and the antecedents to those factors, the background to those, has not really been addressed and understood. I believe that this must be addressed for that risk to have any chance of improving. I do think that it may be useful for some preparation work to be done, so I would not want the one-to-one also to be lost, and that that preparatory work could actually be in a lead-up to an engagement in an [intensive sex offender treatment program], and there is clearly outstanding treatment needed in relation to substance use as well, and however, one must remember that [the respondent] completed the Pathways intensive group program to address substance use in just April of last year, and appears to have gained some understanding from it, but been able to enact behavioural change as a result of it. And so there's nothing to suggest that another program of that sort, or even perhaps participation in a Mali unit residential program would be of any particular use, and that would leave the sexual offending issues outstanding. So I believe that it is important, but I also think that unless there is a proportion of people with whom [the respondent] feels some kinship, familiarity and understanding, the group dynamic, which is a very useful component, the interaction between the participants, the hearing of other people's stories, the hearing of how people - other people address their offending and understand their victims, develop empathy, etcetera - he will only gain that benefit if there is a significant proportion of other Indigenous offenders similar - with backgrounds similar to his own in a group program. So I think it would be for Corrective Services to look carefully at the type of program that he might be engaged with, because a program that was all or predominantly non-Indigenous white males would probably not be that beneficial to him, and he may find it very difficult to speak out in a program like that.
[27] ts 274 (10 November 2023).
When asked his opinion as to whether the benefits that would hope to be achieved from a group intensive program with a high proportion of Indigenous participants could that also be gained from individual therapy with Ms Morrison, Dr Wynn Owen responded:[28]
Probably not with Ms Morrison, in that I do think that there's a potential barrier in terms of his capacity to engage with women, and there may be a cultural barrier there that is making it more difficult for him to disclose, and the issues of shame and the issues of disclosure to a female may be preventing him from engaging fully in that individual therapy. However, individual therapy with a male could well be at least as good – as useful, in terms of that potential for both understanding, but then the change of behaviour that needs to occur. And the good thing about that is that there would be the capacity – that general understanding of the array of criminogenic needs, and that interface between the substance use and the sexual offending would be very much understood, so that that individual therapy would be much more tailored to [the respondent's] specific needs. So it is a reasonable alternative, should the therapist be male. But again, I think Corrections could look carefully at that in reassessing [the respondent], in considering the future of his individual therapy.
[28] ts 275 (10 November 2023).
As to individual therapy, Dr Wynn Owen gave evidence to the effect that he considered that a male forensic psychologist with an Indigenous background would probably be the absolute ideal.[29] He also gave evidence to the effect that weekly counselling would be crucial, as there is a lot to be done and the potential for a loss of therapeutic rapport and treatment gains.[30] Further, that individual therapy ought be maintained while the respondent participated in any intensive sex offender treatment program so as to maintain established therapeutic rapport.[31]
[29] ts 275 (10 November 2023).
[30] ts 280 - 281 (10 November 2023).
[31] ts 282 (10 November 2023).
He also gave evidence to the effect that transfer to West Kimberley Regional Prison to facilitate culturally appropriate support opportunities would be beneficial to the respondent, with individual therapy to continue via video-link.[32] However, Dr Wynn Owen opined that it was critical that such a transfer not interfere with an opportunity to participate in an intensive sex offending treatment program:[33]
I think that … it remains as a very significant outstanding treatment need and will be regarded as such by anybody who is sitting in … my role in any future review of [the respondent's] risk. People that have completed these programs are less likely to reoffend than people who haven't. So somebody who … hasn't … and hasn't been given the opportunity is … really being denied an opportunity to take the next step towards release.
[32] ts 276 - 277 (10 November 2023).
[33] ts 280, 281 (10 November 2023).
Dr Wynn Owen also gave evidence to the effect that if left untreated for 12 months, there would either be no change alternatively an increase in the risk posed by the respondent.[34]
[34] ts 283 (10 November 2023).
As to the impact of a lack of accommodation, Dr Wynn Owen opined that instability of accommodation and absence of accommodation elevate risk. He gave evidence to the effect that such instability or absence is a significant stress for somebody who is already feeling isolated and detached, and dislocated from community.[35]
[35] ts 283 (10 November 2023).
Dr Wynn Owen also recommended that close attention be paid to the respondent's health, which ought include input from a dietician and cardiac rehabilitation.[36]

Evidence of Dr Sarah Barbas - treatment progress report

[36] ts 283 (10 November 2023).

A treatment progress report was completed by Dr Barbas, a senior clinical and forensic psychologist employed by the Department of Justice. The prepared report intended to provide a summary of the respondent's treatment thus far and an update on the respondent's treatment progress since September 2022.
In preparing her report, Dr Barbas reviewed the first two volumes of the book of materials tendered at this contravention hearing, interviewed the respondent in person for approximately three hours and interviewed the respondent's treating psychologist, Ms Julia Morrison, for 45 minutes.
In her report, Dr Barbas summarised the respondent's treatment history; prison behaviour since his return to custody; his physical and mental health; his treatment progress since the restriction order review hearing; his presentation during the current assessment and his account of treatment progress. She also set out the basis for her opinion as to the respondent's treatment progress, her conclusions and her recommendations.
There are a number of references throughout the report to the respondent's feelings of isolation; his sense of disconnectedness to his Country, culture and family located in the Kimberley region; his loneliness while released to the community; and his experienced difficulty in connecting with others.
Dr Barbas reported that the respondent has several physical health problems, and was hospitalised twice since March 2023 and underwent a coronary artery bypass in April 2023. During his interview with Dr Barbas, the respondent reported continued pain at the surgery site and in his ribs.
Dr Barbas recorded that since 15 September 2022, the respondent had attended 11 psychological intervention sessions with Ms Morrison, eight of which were in the community. However, the respondent failed to attend four sessions while in the community, and it had been suggested that non‑attendance may have reflected some avoidance on the part of the respondent.
Dr Barbas also recorded that Ms Morrison had reported that:
(a)the treatment sessions were focused on the respondent's adjustment to the community; coping; his sexual functioning; assertive communication; managing boredom and loneliness; substance use; anger management; high risk scenarios and relapse prevention;
(b)the respondent had expressed significant shame regarding his prior offences and the current supervision order;
(c)the respondent found it difficult to manage conditions requiring him to avoid restriction zones and recording daily movements in his diary;
(d)another concern for the respondent in the community related to his boredom, particularly as his idle time appeared to underpin his use of alcohol, cannabis and sexual activity;
(e)she would continue to engage with the respondent following the contravention hearing regardless of the outcome;
(f)if the respondent remains in custody, Ms Morrison would continue to meet with the respondent on a monthly basis, with a view to increasing frequency to fortnightly visits closer to his review hearing; and
(g)should the respondent be released, weekly appointments would resume with a continued focus on his re‑adjustment to the community, coping, sexual functioning, assertive communication, managing boredom and loneliness, substance use, anger management, high risk scenarios and relapse prevention.
Dr Barbas reported that Ms Morrison had highlighted that the respondent's ability to adapt to life in the Perth metropolitan area remained an enduring challenge as he is an Indigenous man who is isolated from Country, whose first language is not English and who has minimal support in the area. Ms Morrison had reiterated that the respondent would benefit from a holistic management plan, which ought include engagement with a culturally safe mentor, supportive supervision from the Community Offender Monitoring Unit, involvement with Uniting WA, and drug and alcohol counselling. Ms Morrison also expressed the view that employment would be a probable protective factor should the respondent return to the community.

In her report Dr Barbas described the respondent's presentation throughout their interview as being polite and oriented, although she recorded that he had difficulty recalling specific timeframes with consistency and demonstrated recent and remote memory problems. She recorded that the respondent did not present with evidence of thought disorder; and that he had engaged positively without the use of an interpreter.
Dr Barbas reported that the respondent had described his treatment with Ms Morrison in positive terms and had indicated motivation to continue with treatment; had shown some insight and remorse for his offending; had identified a distrust of others, homelessness and abuse within his previous intimate relationships as factors which contributed to his offending; had recalled that on some occasions when he had previously offended, he had felt emotional and stressed; he identified that his high risk situations involved drug and alcohol use with antisocial peers; surmised that he required employment and recreation, such as basketball, to remain offence free in the future; and expressed a desire to return to his Aboriginal community, or to be transferred to West Kimberley Regional Prison should he be made subject to a continuing detention order.
The respondent informed Dr Barbas that his contraventions occurred in the context of receiving news from his daughter that he was going to be a grandfather and attempting to meet others in the context of feeling lonely and socially isolated. With respect to contraventions associated with cannabis use, the respondent reported to Dr Barbas that he used it to assist his chronic pain and sleep in the absence of alternative prescription medication that might aid him in this regard.
Dr Barbas recorded that the respondent had expressed an awareness that he had breached his curfew time and had not charged his ankle bracelet. When asked about his contraventions associated with his use of multiple social media platforms, the respondent reported to Dr Barbas that he was continuously hacked and that he subsequently had to acquire a new device and accounts. Dr Barbas also reported that the respondent had demonstrated an understanding of the concept of exclusion zones, but he had noted that some of the exclusion zones were places where he could meet with friends and family and therefore being excluded from such areas (such as Wellington Street) impacted on his ability to develop social supports in the community.
In recording her opinion as to the respondent's treatment progress, Dr Barbas noted that the respondent's treatment needs remained unchanged since his last review, and primarily relate to substance use, sexual offending, relationship and communication problems, emotion regulation, coping, boredom, loneliness, anger management and peer refusal. Dr Barbas reported that central factors mitigating against his adjustment into the community remains that the respondent is an Aboriginal man from a remote community, whose first language is not English and who lacks access to culturally appropriate and pro‑social support.
Although the respondent was described as holding a basic understanding of a supervision order, Dr Barbas opined that his contraventions appeared to have resulted from difficulty meeting the requirements of the conditions. She also opined that it was likely that the respondent's substance use flowed from boredom, loneliness and stressors during his initial transition and a failure to adequately manage them; and that the brevity of his recent release suggests ongoing difficulty in his ability to implement and maintain appropriate behaviour changes and comply with his supervision order.
Dr Barbas recorded that the respondent has been engaged in ongoing intervention since 2010, including five group treatment programs and approximately 40 individual psychological intervention sessions. She suggested that the respondent benefits from a sense of belonging through his attachment to his psychologist and recommended that this therapeutic relationship remain ongoing with a focus on the respondent's treatment needs and the consolidation of relapse prevention plans.
If the respondent were to remain on a continuing detention order, Dr Barbas reported that she anticipated that treatment would continue monthly, as she considered that further gains remain unlikely in the custodial setting where the respondent would be unable to practically apply learned skills.[37] Dr Barbas suggested relocation to West Kimberley Regional Prison may facilitate access to culturally appropriate support and allow for the development of meaningful relationships. In the course of her evidence, Dr Barbas also reported that in more recent communication with Ms Morrison, she had indicated that she feels that an intensive sex offender treatment program would be beneficial for the respondent.[38] She gave evidence of her understanding that such a program is not available in the West Kimberley Regional Prison, but at Acacia and Bunbury Regional Prison.[39]
[37] See also ts 285 (10 November 2023).
[38] ts 285 (10 November 2023).
[39] ts 286 (10 November 2023).
If the respondent were placed on a community supervision order, Dr Barbas suggested that he would benefit significantly from involvement with culturally safe support services, including a mentor and substance use counselling. She suggested that the respondent's treatment with Ms Morrison should continue and that the respondent be supported to obtain employment to assist him to develop a sense of purpose, opportunities for pro-social support and to reduce idle time in the community. Dr Barbas also recommended for similar reasons that the respondent's interest in basketball be supported. Dr Barbas noted the respondent would benefit from regular medical review.
In the course of her evidence Dr Barbas confirmed that the respondent had not participated in any therapeutic intervention after he was placed on an interim detention order in July 2023, which she understood was due to resourcing constraints.[40]
[40] ts 185, 187 (10 November 2023).
As to whether there were male forensic psychologists available to treat the respondent, Dr Barbas gave evidence to the effect that two of the team of six forensic psychologists are male; and that the team was presently 'heavily under resourced'.[41]

Evidence of Ms Katrina Czechowski - Adult Community Corrections performance report

[41] ts 285 (10 November 2023).

A community supervision assessment report was prepared by Ms Czechowski, a senior community corrections officer within the Community Offender Monitoring Unit of the Department of Justice, and was endorsed by Aimee Goode, Community Offender Monitoring Unit team leader, and Alan Watkins, the assistant commissioner of Adult Community Corrections. Ms Czechowski has been the respondent's case manager since he was released on the supervision order in November 2022.[42]
[42] ts 291 (10 November 2023).
Ms Czechowski recorded that in preparing her report, she had relied upon departmental records; the Total Offender Management Solutions (TOMS) prison database; the Integrated Court Management System; the psychiatric report prepared by Dr Wynn Owen; the treatment progress report prepared by Dr Barbas; her interview with the respondent on 12 October 2023 and supervision sessions with the respondent while on the supervision order from 2 November 2022 onwards. Ms Czechowski also liaised with Dr Wynn Owen, the West Australia Police Force, the Victim‑offender mediation unit, the Wungening Aboriginal Corporation and Uniting WA.
Ms Czechowski's report addressed the respondent's offending and contravention history; progress whilst subject to the supervision order; the current release plan for the respondent; behaviours to be managed; and accompanying strategies to manage the respondent's risk in the community.
Ms Czechowski recorded that the community based orders that the respondent had received upon conviction since release on the supervision order had been cancelled and the respondent had been resentenced so as to incur financial penalties.
Ms Czechowski recorded that the Wungening Aboriginal Corporation and Solid Ground program was explained to the respondent during a scheduled supervision session in November 2022, and the respondent had agreed to a referral to be completed for him. Despite this, the respondent failed to engage, and despite various further referrals being made on behalf of the respondent between December 2022 and July 2023, the respondent did not engage with the service.
Ms Czechowski described what she considered to be concerning behaviours exhibited by the respondent while on the supervision order, as follows:
(a)dishonesty with his supervision team;
(b)failing to report movements and interactions, particularly with females in the community;
(c)substance abuse (alcohol and cannabis);
(d)association with anti-social peers and family;
(e)sexual preoccupation including as concerns the nature of pornography viewed;
(f)lack of motivation to comply, poor decision making and disregard for consequences; and
(g)escalation in aggression.
As to 'escalation in aggression' Ms Czechowski in the course of her evidence explained that she understood from WA Police that during arrest and interactions with the respondent, they had noted his aggression towards them to have increased; that she had also watched body-cam footage of the respondent's arrests and had noted the same; and that she had not seen the respondent behave in that particular manner before.[43]
[43] ts 292 (10 November 2023).
Ms Czechowski recorded that during the respondent's time in the community he consistently demonstrated disengaging behaviours with program supports, particularly once initial support was completed.
As to 'disengaging behaviours' in the course of her evidence Ms Czechowski gave by way of example the respondent's failure to attend appointments made for him with Uniting WA and not being at home for scheduled visits; and one occasion when he refused to allow workers into his unit when they attended.[44]
[44] ts 292 (10 November 2023).
Ms Czechowski also recorded that on 5 October 2023, Uniting WA had confirmed they would continue to provide support and accommodation to the respondent if released, but the respondent's poor behaviour during his previous release made him ineligible for the program's private rental stream. It was reported that the respondent owes $854.35 in arrears; had left his previous accommodation requiring several significant cleans; and had disclosed the address to third parties without permission.
Ms Czechowski had recorded in her report that the respondent is currently ninth on the supported accommodation waitlist.[45] In the course of her evidence, she was unable to estimate a timeframe for such accommodation becoming available. Nor was she able to indicate whether the respondent was on the list for general public housing.[46]
[45] See also ts 293 (10 November 2023).
[46] ts 293 - 294 (10 November 2023).
Ms Czechowski did not identify any new or reported victim issues, prison incidents or charges in her report.
As had been noted by Dr Wynn Owen and Dr Barbas, the respondent's isolation and disconnectedness from Country were referenced by Ms Czechowski as being particularly significant in the context of the respondent's contravention offences.
Ms Czechowski recorded that the respondent had been unable to articulate a viable release plan. While he had expressed interest in obtaining employment in carpentry upon release, there was no proposed employment at the time of the report and Ms Czechowski noted that the respondent's health issues may impact his ability to obtain such employment.
Ms Czechowski recorded that the respondent had reported a desire to engage in basketball as a social activity, but noted that there were difficulties in finding a suitable location for the respondent to play. She recorded that if the respondent was released, the Community Offender Monitoring Unit would endeavour to find a suitable location.
Ms Czechowksi described a number of culturally suitable supports that are available including Wadjak Northside Aboriginal Resource Centre, Miya Kaadadjiny and Djinda Bridiya Wellbeing which among other things run Indigenous community programs and craft groups. She further noted that the risk management team would need to consider the risk issues at each location and prior attendance approval would be required.
Ms Czechowksi recorded that the respondent had been given information concerning a residential rehabilitation program, and the Solid Steps Program (Casuarina Prison - Mallee Rehabilitation Centre/Unit) (a three‑stage program facilitated over a nine month period, with three months support offered post‑program). The respondent reportedly appeared hesitant about participation in such a program.
In the course of her evidence Ms Czechowski stated that if detained, an updated treatment assessment report would need to be completed by the prison before he could be accepted into any treatment program. His suitability for inclusion in any program would need to be assessed.[47]
[47] ts 296 - 297 (10 November 2023).
Ms Czechowksi recorded that the respondent remains subject to a lifetime Family Violence Restraining Order with respect to the victim of his aggravated grievous bodily harm offence. He also remains subject to reporting obligations under the Community Protection (Offender Reporting) Act2004 (WA).
Ms Czechowksi acknowledged the findings of Dr Wynn Owen and Dr Barbas as to the respondent's outstanding treatment needs, including Dr Wynn Owen's confirmation that the current supervision order 'addresses the high risk situations to the extent possible within such an order' and no amendment or removal of the current conditions was recommended.
Ms Czechowksi recommended that if released, GPS monitoring continue, although acknowledged the limitation of the technology in that it does not indicate who the respondent is with or what he is doing. For this reason she recommended that the respondent be required to keep a diary tracking his movements. Ms Czechowksi also recommended that there remain conditions restricting the respondent from entering residences and vehicles with females inside; restricting contact with children; requiring the respondent to undergo alcohol and drug treatment programs; and a curfew requirement. Ms Czechowksi noted that should the respondent be released, he would be subject to close monitoring and supervision by multiple agencies, and his management would include regular and unscheduled home visits, liaison with community agencies and other stakeholders, as well as regular review of his risk factors at risk management meetings.

Assessment of the application

The State's position

In advance of the hearing, counsel for the State filed a written outline of submissions dated 6 November 2023, together with a minute of proposed detention order.
The State submitted that the respondent ought to be detained on a continuing detention order as the court should not be satisfied that the respondent will substantially comply with the standard conditions of the supervision order, and the respondent's release on a supervision order would not ensure an adequate degree of protection to the community at this time.
The State placed particular emphasis on Dr Wynn Owen's opinion that the respondent continues to present a high risk of committing a future serious offence; and that the respondent had demonstrated dishonesty on multiple occasions; continued engagement with anti-social peers; continued substance abuse; limited treatment gains; outstanding treatment needs in relation to sexual offending; and ongoing problems with planning.
The State emphasised the aspects of Dr Barbas' report which concerned the respondent's treatment needs; cultural adjustment issues; disengagement with treatment; substance use; problems with interpersonal relationships; and risk perception. Dr Barbas' opinion that the brevity of the respondent's release suggests ongoing difficulty in his ability to implement and maintain appropriate behaviour changes and comply with the supervision order when challenged by stressors was also emphasised.
As to Ms Czechowski's report, the State emphasised the concerning behaviours identified by Ms Czechowski; problems with the respondent's future planning and adjustment into the community; the support services and agencies available to the respondent including drug and alcohol treatment and culturally appropriate mentor programs and the lack of presently available accommodation.
The State submitted that the court ought find that the respondent has contravened the supervision order imposed by Fiannaca J, and in the circumstances of this case, the real issue for the court was whether to make an order under s 55(1)(a), (b) or (c) of the High Risk Serious Offenders Act.
Noting that the standard conditions of a supervision order are set out in s 30(2) of the High Risk Serious Offenders Act including, relevantly to the respondent's case:
(d)be under the supervision of a community corrections officer and comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32); … and
(f)not commit a serious offence during the period of the order;
the State emphasised that four of the respondent's 19 contraventions relate to non‑compliance with a standard condition of his supervision order, specifically the requirement to comply with a reasonable direction of the respondent's community corrections officer.
The State also referred to Dr Wynn Owen's observations that without any demonstrated learning or change in attitude, the respondent's capacity to implement post-release plans in the community seems unlikely.
The State referred to sentencing remarks made in the Magistrates Court for the respondent's contravention offences, where he was repeatedly warned that further contraventions could result in further imprisonment. Despite these warnings, the respondent committed numerous further contravention offences between December 2022 and July 2023.
The State submitted that having careful regard to the factors set out by Archer J in The State of Western Australia v Gorham [No 2], the respondent will encounter significant difficulty in discharging the burden of proof cast upon him by s 29(2) of the High Risk Serious Offenders Act.
On behalf of the State it was also noted that at this time, there is no accommodation available for the respondent in the community, and as Hall J had observed in The State of Western Australia v Corbett [No 5] [2017] WASC 115 at [80], the absence of suitable accommodation makes it impossible to be satisfied that the supervision order is presently a viable option.
It was submitted that to ensure the adequate protection of the public, the respondent should be made subject to a continuing detention order under s 55(1)(a) of the High Risk Serious Offender Act.

The respondent's position

The respondent did not seek to adduce any evidence.[48] While it was not conceded that the respondent had contravened the supervision order as alleged, and it was accepted that whether the supervision order be rescinded, affirmed, amended or extended was a matter for the court, counsel pressed for a swift decision from the court, to be accompanied by firm recommendations as to what might be best achieved and how treatment of the respondent would be best advanced in the next 12 months.[49]
[48] ts 299 (10 November 2023).
[49] ts 299 - 300 (10 November 2023).

Has the respondent contravened the supervision order as alleged?

I now turn to consider whether the respondent contravened the supervision order as alleged.
In addressing whether the court should be satisfied that the respondent had contravened the supervision order, the State relied upon the certified copies of the prosecution notices which recorded the respondent's convictions in the Magistrates Court and the penalties imposed, as well as the transcripts of the sentencing proceedings. As was noted in the submissions filed on behalf of the State in advance of the hearing, evidence of the same may be given in a court by the production of such documents under s 80(c) of the Evidence Act 1906 (WA), and received into evidence by this court pursuant to s 84(2)(c) and (5)(b) of the High Risk Serious Offenders Act.

Having regard to the evidence before me, I am satisfied on the balance of probabilities that that the respondent contravened the supervision order on 19 occasions, as alleged.

Charge 1 (PE 53070/22)

I refer to [24] ‑ [28] of my previous reasons. As there noted, on 1 December 2022, WA Police arrested the respondent and charged him with one count of having contravened a requirement of a supervision order contrary to s 80(1) of the High Risk Serious Offenders Act. It was alleged that condition 51 to the supervision order had been breached. The respondent was convicted on a plea of guilty on 1 December 2022 before a magistrate. In those circumstances, I am satisfied to the requisite standard that that the respondent contravened the supervision order.

Charges 2 & 3 (PE 55524-55525/22)

I refer to [29] ‑ [33] of my previous reasons. As there noted, on 15 December 2022, WA Police arrested the respondent and charged him with one count of having used a prohibited drug, namely cannabis, contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA); and one count of having contravened a requirement of a supervision order contrary to s 80(1) of the High Risk Serious Offenders Act. It was alleged that condition 25 to the supervision order had been breached. The respondent was convicted on both charges on a plea of guilty on 1 December 2022 before a magistrate. In those circumstances, I am satisfied to the requisite standard that the respondent contravened the supervision order.

Charges 4 - 10 (PE 1176-1182/23)

I refer to [35] ‑ [43] of my previous reasons. As there noted, on 6 January 2023, WA Police arrested the respondent and charged him with seven offences. He was charged with five counts of having contravened a requirement of a supervision order contrary to s 80(1) of the High Risk Serious Offenders Act; one count of having used a prohibited drug, namely cannabis, contrary to s 6(2) of the Misuse of Drugs Act; and one count of being in possession of a prohibited drug, namely cannabis contrary to s 6(2) of the Misuse of Drugs Act. It was alleged that conditions 4, 25 and 38 to the supervision order had been breached. The respondent was convicted before a magistrate on his plea of guilty on 9 January 2023 in relation to all seven charges. In those circumstances, I am satisfied to the requisite standard that the respondent contravened the supervision order.

Charge 11 (PE 17420/23)

I refer to [44] ‑ [50] of my previous reasons. As there noted, on 6 April 2023, WA Police arrested the respondent and charged him with one count of having contravened a requirement of a supervision order contrary to s 80(1) of the High Risk Serious Offenders Act. It was alleged that condition 46 to the supervision order had been breached. The respondent was convicted before a magistrate on his plea of guilty on 13 April 2023. In those circumstances, I am satisfied to the requisite standard that the respondent contravened the supervision order.

Charges 12 - 14 (PE 18929-18931/23)

I refer to [51] ‑ [59] of my previous reasons. As there noted, on 12 April 2023, WA Police summonsed the respondent with three offences, being two counts of having contravened a supervision order contrary to s 80(1) of the High Risk Serious Offenders Act, and one count of having failed to comply with reporting obligations contrary to s 63(1) of the Community Protection (Offender Reporting) Act. It was alleged that conditions 15 and 32 to the supervision order had been breached. The respondent was convicted before a magistrate of three offences on his plea of guilty on 29 May 2023. In those circumstances, I am satisfied to the requisite standard that the respondent contravened the supervision order.

Charges 15 - 16 (PE 57484-57485/22)

I refer to [60] ‑ [66] of my previous reasons. As there noted, on 26 December 2022, WA Police arrested the respondent and charged him with two offences, being two counts of having contravened a supervision order contrary to s 80(1) of the High Risk Serious Offenders Act. It was alleged that conditions 27 and 38 to the supervision order had been breached. The respondent was convicted before a magistrate on his plea of guilty on 28 December 2022. In those circumstances, I am satisfied to the requisite standard that the respondent contravened the supervision order.

Charge 17 (PE 58034/22)

I refer to [67] ‑ [70] of my previous reasons. As there noted, on 29 December 2022, WA Police arrested the respondent and charged him with one count of having contravened a supervision order contrary to s 80(1) of the High Risk Serious Offenders Act. It was alleged that condition 38 to the supervision order had been breached. The respondent was convicted before a magistrate on his plea of guilty on 30 December 2022. In those circumstances, I am satisfied to the requisite standard that the respondent contravened the supervision order.

Charges 18 - 21 (PE 2307-2310/23)

I refer to [71] ‑ [76] of my previous reasons. As there noted, on 12 January 2023, WA Police arrested the respondent and charged him with four offences, being one count of being in possession of a prohibited drug, namely cannabis, contrary to s 6(2) of the Misuse of Drugs Act; and three counts of having contravened a requirement of a supervision order contrary to s 80(1) of the High Risk Serious Offenders Act. It was alleged that conditions 10, 25 and 38 had been breached. The respondent was convicted before a magistrate on his plea of guilty on 13 January 2023. In those circumstances, I am satisfied to the requisite standard that the respondent contravened the supervision order.

Charges 22 - 24 (PE 30128-30129/23 and PE 30190/23)

I refer to [77] ‑ [82] of my previous reasons. As there noted, on 13 June 2023, WA Police arrested the respondent and charged him with three offences, being two counts of having contravened a requirement of a supervision order contrary to s 80(1) of the High Risk Serious Offenders Act; and one count of being in possession of a prohibited drug, namely cannabis, contrary to s 6(2) of the Misuse of Drugs Act. It was alleged that conditions 4 and 38 had been breached. The respondent was convicted before a magistrate on his plea of guilty to all three charges on 6 July 2023. In those circumstances, I am satisfied to the requisite standard that the respondent contravened the supervision order.

Charge 25 (PE 35506/23)

I refer to [83] ‑ [85] of my previous reasons and [31] above. As there noted, on 14 July 2023, WA Police arrested the respondent and charged him with one count of having contravened a supervision order contrary to s 80(1) of the High Risk Serious Offenders Act. It is alleged that condition 38 to the supervision order was breached. The respondent was convicted before a magistrate on his plea of guilty to all three charges on 24 July 2023. In those circumstances, I am satisfied to the requisite standard that the respondent contravened the supervision order.

Should the supervision order be rescinded, affirmed, amended or extended?

As I have found that the respondent has contravened the Supervision Order on 19 occasions, I am now required to consider what action to take pursuant to s 55(1) of the High Risk Serious Offenders Act.
I note that in the absence of restriction, the respondent remains at high risk of committing a sexual offence, including a serious offence within the meaning of the High Risk Serious Offenders Act. I proceed on the basis that it is to be assumed that the respondent remains a high risk serious offender, and that I am not required to make that determination again.
I am cognisant that I am required to make an order which is the least invasive, while still protecting the community adequately from the unacceptable risk the respondent were to pose if he were not under restriction. Further, in deciding which order to make, the paramount consideration is to be the need to ensure adequate protection of the community.
Before determining that the supervision order should not be rescinded, I must be satisfied that a supervision order will adequately protect the community against the unacceptable risk that the respondent will commit a serious offence. I must also be satisfied that the respondent will substantially comply with the standard conditions of the order. The court cannot release the respondent on a supervision order unless satisfied, on the balance of probabilities, that he will substantially comply with the standard conditions of the order, the onus of establishing which is on the respondent. On the evidence before me, the respondent has not discharged that onus.
Since his release in November 2022 until the hearing of the contravention application on 10 November 2023 the respondent has spent approximately 269 days in custody.[50] Since the respondent was released on the supervision order on 2 November 2022, he was charged with 25 offences. In respect of all of the charges, the respondent pleaded guilty and received penalties which included fines, community based orders and in some cases, no penalty.[51] The offences gave rise to 19 contraventions of the respondent's supervision order.[52]
[50] Book of materials (volume 3), page 576, adult community corrections performance report.
[51] Affidavit of DS McDonnell pars 12, 40.
[52] Book of materials (volume 2), page 301, particulars of contravention allegations.
Four of the respondent's 19 contraventions relate to non‑compliance with a standard condition of his supervision order, specifically the requirement to comply with a reasonable direction of the respondent's community corrections officer.
Despite multiple warnings, input and coaching from his psychologist and community corrections officer, appearances before the Magistrates Court, periods remanded in custody, and the entry of convictions, the respondent continued to engage in conduct which was in breach of the supervision order. After December 2022, the respondent was released for no longer than two weeks in the community at any one time. The respondent's contraventions were not as a result of a momentary lapse in his commitment to compliance. The period since his release on a supervision order has been marked by the consistent failure to comply.
Dr Barbas' opinion evidence that the brevity of the respondent's release suggests ongoing difficulty in his ability to implement and maintain appropriate behaviour changes and comply with the supervision order when challenged by stressors is compelling.
I also note that Dr Wynn Owen, in the context of assessing the respondent using the RSVP tool, observed that the respondent consistently places himself in high risk situations but does not demonstrate a clear understanding of why he should not be alone with females or in the company of intoxicated females. Further, Dr Wynn Owen observed that the respondent minimised the importance of his substance use to his offending, despite the presence and significance of this risk factor having been highlighted by the respondent's time in the community.
The contraventions reveal that the respondent had been unable to abstain from alcohol or cannabis notwithstanding repeated warnings, repeated returns to custody and despite suffering from numerous physical health issues. I weighed in the balance Dr Wynn Owen's opinion that substance abuse was directly associated with the respondent's future risk of serious offending.
While the contraventions did not involve violence or offending of a sexual nature, the respondent was consistent in his failure to comply with the conditions of his release. Having regard to his numerous contraventions some of which involved ongoing substance abuse, I cannot 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.
I also give weight to the evidence of Dr Wynn Owen that the current supervision order addressed the high risk situations to the extent possible within such an order.
There is no evidence before me to suggest that the supervision order can be amended in such a manner that the community will be adequately protected against the unacceptable risk that, if not subject to restriction, the respondent will commit a serious offence. Nor is there a basis to find that the supervision order might be amended in a manner that would allow me to be satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of the supervision order.
Further, as was noted by Dr Wynn Owen, the respondent's current plans are no different to his previous plans. Dr Wynn Owen expressed the view that while the respondent continues to commit to abstinence from drugs and alcohol and compliance with supervision order conditions, absent any demonstrated learning or change in attitude the respondent's capacity to achieve this seems unlikely.
The respondent himself raised with Dr Wynn Owen concerns about his compliance with the conditions if he was to remain in metropolitan Perth. He expressed a desire to return to his Aboriginal community. The evidence suggests that the respondent might have more success on a supervision order if accommodation and supervision was possible in the Kimberley region, closer to his family. The respondent consistently reported loneliness, boredom, isolation and frustration with the restrictions imposed upon him since his release on the supervision order.
Finally but significantly, the respondent no longer has suitable accommodation. It is not possible to release him to a supervision order if no suitable accommodation is available.
When regard is had to all of the evidence, I am not satisfied that a supervision order will adequately protect the community against the unacceptable risk that the respondent will commit a serious offence.

Conclusion and orders

I have determined that the respondent's risk of reoffending cannot be adequately managed in the community with the imposition of a supervision order. Therefore, the respondent will be subject to a continuing detention order under the High Risk Serious Offenders Act.
Considerable evidence was given in the course of the contravention hearing as to the steps necessary to advance the rehabilitation of the respondent and his care and treatment should he be placed on a continuing detention order.
I accept the expert evidence given that the respondent should be assessed for participation in an intensive sex offender treatment program, ideally within a group comprising a high proportion of Indigenous offenders, as a matter of priority. If assessed as being suitable for participation, the respondent ought begin that program in the next intake (which I understand to be December 2023), or the intake immediately thereafter (which I understand to be April 2024).
I also accept the expert evidence given that going forward, the respondent should be treated by a male forensic psychologist, and if that is not possible, by Ms Morrison; and that individual treatment should occur on a weekly basis while the respondent is subject to the continuing detention order.
If the respondent is assessed as not being suitable to participate in an intensive sex offender treatment program before his next review, then in light of the evidence as to likely therapeutic benefit, consideration ought be given to a transfer to West Kimberley Regional Prison, and for individual treatment to continue via videolink.
I accept Dr Wynn Owen's evidence that if left untreated for 12 months, there would either be no change alternatively an increase in the risk posed by the respondent. In light of this evidence and in circumstances where there has been no therapeutic engagement with the respondent since July 2023, it is imperative that there be a focus on the respondent's care and treatment before his first review.

Sch A - Supervision order made on 27 October 2022 (redacted)

__________________________________________________________________________________________________________________________________________________

SUPERVISION ORDER MADE BY THE HON JUSTICE FIANNACA
ON 27 OCTOBER 2022

Pursuant to section 48(1)(b) of the High Risk Serious Offenders Act 2020, having found that the Respondent is a high risk serious offender within the meaning of section 7(1) of the High Risk Serious Offenders Act 2020 (HRSO Act), the Court makes a supervision order in relation to the Respondent (this Order), for a period of 5 years from 2 November 2022, on the following conditions:

You, MAR, must:

STANDARD CONDITIONS REQUIRED BY THE ACT

Report to a Community Corrections Officer (CCO) at the East Perth Adult Community Corrections Centre within 48 hours of your release from custody subject to this Order, and advise the CCO of your current name and address.

Report to and receive visits from a CCO as directed by the court under this Order.
Notify a CCO of every change of your name, place of residence or place of employment at least 2 business days before the change happens.
Be under the supervision of a CCO, which includes, complying with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32 of the HRSO Act).
Not leave or stay out of the State of Western Australia without the permission of a CCO.
Not commit a serious offence as defined in section 5 of the HRSO Act during the period of this Order.
Be subject to electronic monitoring under section 31 of the HRSO Act.

Residence

Take up residence at [REDACTED] and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer (CCO) assigned to you.

Reporting to a CCO and supervision by a CCO

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

Be under the supervision of a CCO, and comply with the lawful orders and directions of a CCO.

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

Attendance at programs or treatment

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

Attend all appointments and receive visits from any medical practitioner, psychiatrist, psychologist, counsellor, support service and/or support person nominated by a CCO, as directed by a CCO.

Reporting to WA Police

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

Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004.

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

Remain at your premises and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the provisions of the High Risk Serious Offenders Act 2020.

Disclosure/Exchange of Information

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

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

Restrictions on contact with Victims

Have no contact, directly or indirectly, with the victims of your sexual and violent offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-Offender Mediation Unit of the Department of Justice.

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

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

Criminal conduct

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

Not commit an offence under s202, s203, s204 Criminal Code 1913 (WA) or s17(1) Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021.

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

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

Curfew

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

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

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

Prevention of high-risk situations

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

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

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

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

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

Not associate with any person known by you to have committed a sexual offence unless such association is authorised in advance by the CCO.

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

Provide a valid sample pursuant to Condition 36.

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

Not to go, enter any part of your body inside, or remain at any licensed premises unless permitted or required to do so for the following reasons:

a.For the purpose of averting or minimising a serious risk of death or injury to yourself or another person.
b.For a purpose, and duration approved in advance by a CCO.
c.On the order of a CCO or Police Officer.

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

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.

Have no contact with any child under the age of 18 years, whether such contact is in person, in writing, by telephone or by electronic means, unless:

a.The contact is authorised in advance by the CCO and such contact is supervision at all times by an adult approved in advance by the CCO.
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.

('Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication)

Where any unsupervised contact with a 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.

Provide the name, address, location and any details known by you, of any contact with a 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.

Have no contact with, membership of or affiliation with clubs, associations or groups where 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.

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

Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 46, without prior approval.

Enable device locking or password access of your computer, telecommunication and/or electronic devices; Not provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device referred to in condition 46, or any online accounts, to any person other than a CCO or Police Officer.

Upon request, permit a CCO or WA Police at any location nominated by them, to access any computer, telecommunication and/or device capable of storing digital data, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device; this includes providing all screen name(s), user name(s), and email addresses.

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.

Maintain a daily diary of your movements, activities and associations, if and as directed by the CCO, and present this diary to the CCO and Police upon request.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RW
Associate to the Honourable Justice Strk
13 NOVEMBER 2023