The State of Western Australia v Meehan - [2023] WASC 6

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- MEEHAN [2023] WASC 6
CORAM:   FIANNACA J
HEARD:   13 JANUARY 2023
DELIVERED          :   13 JANUARY 2023
PUBLISHED           :   16 JANUARY 2023
FILE NO/S:   SO 18 of 2022
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
ALBERT JOHN MEEHAN
Respondent

Catchwords:

Criminal law – High Risk Serious Offenders Act 2020 (WA) – Preliminary hearing – Whether reasonable grounds for belief that restriction order might be made – Whether interim detention order is desirable – Turns on own facts

Legislation:

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

Result:

Orders made under s 46
Interim detention order made

Category: B

Representation:

Counsel:

Applicant	:	Mr D McDonnell
Respondent	:	Mr T McCulloch

Solicitors:

Applicant	:	State Solicitor's Office (WA)
Respondent	:	Legal Aid - Perth - Criminal Law Division

Cases referred to in decision:

Director of Public Prosecutions (WA) v Allen [2006] WASC 160
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
The State of Western Australia v Bellamy [2013] WASC 467
The State of Western Australia v Garlett [2021] WASC 387
The State of Western Australia v Hart [2021] WASC 205
The State of Western Australia v Narrier [2021] WASC 250
The State of Western Australia v PAS [2020] WASCA 405
The State of Western Australia v Ryan [2020] WASC 352

FIANNACA J:

Introduction

This is the preliminary hearing of an application for a restriction order in respect of the respondent under s 35 of the High Risk Serious Offenders Act 2020 (WA) (the Act). The application was heard on 13 January 2023. At the conclusion of the hearing, I made orders in terms of the orders at the end of the reasons. I gave brief reasons, in essence as set out under the heading 'Disposition' below, with detailed reasons to follow. These are my reasons for making the orders.

The application and its history

Section 35 of the Act provides:
(1) The State may apply to the Supreme Court for a restriction order in relation to a serious offender under custodial sentence who is not a serious offender under restriction.
(2) Subsection (1) applies whether the custodial sentence was imposed before or after the commencement of this section and whether or not the offender is in custody.
(3) If the offender is in custody, an application under subsection (1) cannot be made unless there is a possibility that the offender might be released from custody within the period of 1 year after the application is made.
(4) An application under subsection (1) need not specify whether the restriction order sought is a continuing detention order or a supervision order.
Section 3 of the Act defines 'serious offender under custodial sentence' to mean, relevantly, a person who is under a custodial sentence for a serious offence, which, in turn, is defined in s 5 of the Act. Section 3 defines 'serious offender under restriction' to mean a person who is subject to a restriction order or an interim supervision order, as those terms are defined in the Act.
The application was filed by the State on 8 November 2022. It is sufficient to note that, at that time, the respondent was a serious offender under custodial sentence, in that he was serving a term of imprisonment of 4 years and 2 months imposed in the District Court on 5 November 2019 for the offence of doing an act, with intent to do harm, as a result of which bodily harm was caused to the victim. That offence is a serious offence for the purposes of the Act. The sentence was backdated to 21 November 2018. The respondent is due to be released from that sentence on 20 January 2023, which is within the period of one year after the application was made by the State. Therefore, the requirements of s 35(1) and s 35(3) of the Act are satisfied.
The main purpose of the preliminary hearing is for the court to decide whether there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender, as defined in s 7 of the Act.[1]I will refer to this as the threshold test. In essence it requires consideration of whether it is possible that, on the hearing of a restriction order application, the court would be satisfied that it is necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence.[2] A restriction order is a continuing detention order, being an order that the offender be detained for an indefinite period for control, care or treatment, or a supervision order, being an order that the offender be subject to specified conditions (including conditions mandated by the Act) for a specified period while the offender is in the community.
[1] The Act s 46(1).
[2] The Act s 7(1).
If I am satisfied that the possibility exists that the court would find the respondent to be a high risk serious offender, then, pursuant to s 46(2) of the Act, I must:
(1)make an order that the respondent undergo examination by a psychiatrist and a qualified psychologist for the purpose of preparing reports to be used in the hearing of the restriction order application (s 46(2)(a)); and
(2)fix a day for the hearing of the restriction order application (s 46(2)(d)).
Under s 46(2)(b), on the application of the State, I may also make an order for one or more other reports to be prepared. Finally, under s 46(2)(c)(i), if the respondent is in custody and might otherwise be released from custody before the restriction order application is finally decided, as is the case here, I may order that the respondent be detained in custody for a period stated in the order, which is referred to as an interim detention order.
Alternatively, if I do not make an interim detention order, and the respondent is released pending the hearing of the restriction order application, then, under s 58(5) of the Act, I can make an interim supervision order, being an 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 I consider to be appropriate, subject to the inclusion of certain mandatory conditions specified in s 30 of the Act.[3]
[3] The Act s 58(6).
In its application, the State has sought an interim detention order until the conclusion of the hearing and judgment on the application for a restriction order. One of the grounds on which that order is sought is that there is no suitable accommodation to which the applicant could be released, where the respondent's putative risk of committing a serious offence could be managed in a way that would ensure the adequate protection of the community against that risk.
The respondent has conceded that, on the materials filed by the State, it is open to the court to decide there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender. Further, the respondent has conceded that, at this stage, there is no suitable accommodation to which the respondent can be released, so that it is appropriate to make an interim detention order, subject to the parties being given liberty to apply to the court to revisit the issue in the event that suitable accommodation should become available.
For the reasons that follow, I am satisfied the concessions are appropriate, and that the orders sought by the State under paragraphs (a), (c)(i) and (d) of s 46(2) the Act should be made.

Legal principles

As I noted earlier, pursuant to s 46(1) of the Act, 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 find that the respondent is a high risk serious offender.
At the substantive hearing of a restriction order application, a court will find that an offender is a high risk serious offender if 'it is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence'.[4] However, at the preliminary hearing stage, the judge does not need to be satisfied that a restriction order will be made. The threshold test is whether there are reasonable grounds for believing the court might reach the level of satisfaction required by s 7 of the Act. To say that something might occur is to say that it is possible. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition. 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.[5]
[4] The Act s 7(1).
[5] The State of Western Australia v PAS [2020] WASCA 405 [20] ‑ [21] (Allanson J); The State of Western Australia v Winder [2021] WASC 65 [16] (Quinlan CJ).
On the hearing of a restriction order application, in deciding whether the respondent is a high risk serious offender, the court must have regard to the matters set out in s 7(3) of the Act. It is appropriate in the preliminary hearing, therefore, to consider what evidence there is in respect of those matters, upon which the court could rely at the substantive hearing. Those matters include, relevantly at this stage (referring to the paragraph lettering in s 7(3)):
(b)any other medical, psychiatric, psychological, or other assessment relating to the offender;[6]
(c)information indicating whether or not the respondent has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by the respondent;
(e)any efforts by the respondent to address the cause or causes of his offending behaviour, including whether he has participated in any rehabilitation programme;
(f)whether or not his participation in any such programme has had a positive effect on him;
(g)the respondent's antecedents and criminal record;
(h)the risk that, if the respondent were not subject to a restriction order, he would commit a serious offence;
(j)the need to protect members of the community from that risk.
[6] That is, other than any report referred to in paragraph (a), being a report prepared under s 74 of the Act for the hearing of the application, which would not occur until after the preliminary hearing.
I bear in mind also the general principles that have been identified in the authorities concerning the proper approach to the determination of whether a person is a high risk serious offender, which a court at a restriction order hearing would have to apply. Those principles were outlined by the applicant in its submissions. It is not necessary to repeat them here. It is sufficient to note that I agree generally that the principles that had developed in respect of proceedings under the Dangerous Sexual Offenders Act 2006 (WA) (repealed) remain applicable in relation to proceedings under the Act, subject to the following qualification.
As was indicated by Corboy J in The State of Western Australia v Garlett,[7] it is arguable that the words 'necessary to make a restriction order in relation to the offender to ensure adequate protection of the community' introduce a further evaluative element over and above an evaluation of whether the risk of an offender committing a serious offence is unacceptable.[8] I will approach the question in these proceedings on the basis that the court at a restriction order hearing would need to be satisfied, first, that there is an unacceptable risk that the respondent will commit a serious offence, and, secondly, that it is necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against that unacceptable risk.
[7] The State of Western Australia v Garlett [2021] WASC 387.
[8] The State of Western Australia v Garlett [2021] WASC 387 [135].

The evidence

In support of its application, the State relied upon the affidavit of Daniel Sean McDonnell affirmed on 8 November 2022 (Mr McDonnell's affidavit), which annexed numerous materials relating to the respondent's criminal history, his participation in rehabilitation programmes and assessments that have been made of his risk of offending previously. The materials concerning the respondent's criminal history include his criminal record, a summary prepared by the State of the respondent's relevant criminal offences, statements of material facts for those offences, transcripts of sentencing proceedings, and pre-sentence reports prepared for such proceedings. In relation to rehabilitation programmes, the materials include reports prepared upon his completion of such programmes, and, in four instances, reports relating to his non-participation in, or withdrawal from, such programmes. In relation to the assessments and management of the respondent's risk, the materials include individual management plans and several parole assessment and review reports. The materials also include a record of decisions by the Parole Board and, later, the Prisoners Review Board.
In addition to Mr McDonnell's affidavit, the State relied on an affidavit from Ms Aimee Stacey Elise Goode, sworn 1 December 2022 (Ms Goode's affidavit), and an affidavit of Martyn James Clancy-Lowe, sworn 4 January 2023 (Mr Clancy-Lowe's affidavit). Ms Goode is a Senior Community Corrections Officer and a Team Leader in the Community Offender Monitoring Unit (COMU) of the Department of Justice, Corrective Services Division. Mr Clancy-Lowe is the Executive Manager of the registry in the Western Australia Police Force which is responsible for providing accommodation assessments for persons being considered for restriction orders under the Act. Both Ms Goode and Mr Clancy-Lowe addressed the suitability of the respondent's proposed accommodation upon release, which I describe below.

Consideration of relevant factors

The matters the court would need to consider pursuant to s 7(3) of the Act at a restriction order hearing are interrelated. I propose to outline first the respondent's general antecedents and his offending history. I will then consider whether the respondent has demonstrated a propensity to commit serious offences and any pattern of offending. Next, I will consider the evidence in relation to the respondent's efforts at rehabilitation and the efficacy of such efforts. I will then refer to assessments that have been made of his risk of committing offences, which also emerge in reports about his efforts at rehabilitation. The factors of the respondent's risk that he will commit a serious offence if not subject to a restriction order, and the need to protect members of the community from that risk involve conclusions drawn from the preceding matters.

General antecedents

The respondent's general antecedents were helpfully outlined by O'Neal DCJ when his Honour sentenced the respondent on 5 November 2019. I respectfully adopt his Honour's outline as follows:[9]
You're 33 years old now, having been born in February 1986. You plainly grew up in difficult and disadvantaged circumstances in the north of the state.
You were raised mainly by your grandparents. I'm not sure why exactly that was, although I can guess, and your parents, in fact, died when you were relatively young, your mother when you were just eight and your father when you were 10 or 11 years old.
Quite apart from the economic disadvantage that you suffered, you were the victim of violent abuse while you were growing up, and that has been described in some detail.
You managed to complete Year 9. You've had some history of work since then doing landscape and gardening, although as your counsel rightly recognises, the extent to which you've done any work has been limited because of the amount of time that you've spent imprisoned.
You have, as might be expected, a long history of substance abuse. You first used alcohol at 10 years old, cannabis at 16 years old, in both cases introduced by a relative as is regrettably common, and you first took up methylamphetamine at the age of 18. All of these things, it seems, have combined to help put you where you are sitting now.
You have what can only be described as an appalling record of prior convictions.
[9] Mr McDonnell's affidavit, 33 - 34 (Annexure G).

Offending history

The respondent is now 36 years of age. He has a significant history of offending commencing when he was a child. That history includes a serious offence, as defined in the Act, that was committed when the applicant was a juvenile. However, the applicant does not rely on that offence for the purposes of the application, and I do not consider that it has any relevance for the determination of whether the respondent is a high risk serious offender. That is not to say that it might not take on significance when psychiatric and psychological assessments are conducted of the respondent, but for the purposes of this hearing, I have put that matter to one side.
The respondent has numerous convictions for violent offences from 2005 to 2019, including one offence of assaulting a police officer, five offences of aggravated assault occasioning bodily harm, one offence of aggravated unlawful wounding, one offence of aggravated grievous bodily harm, one offence of aggravated common assault, and one offence of doing an act, with intent to harm, that resulted in bodily harm, which is the offence for which he is currently serving a term of imprisonment. The respondent also has a conviction for dangerous driving causing death in 2004, and convictions for aggravated dangerous driving causing death and aggravated dangerous driving occasioning bodily harm, which arose out of the same incident in 2011.
The respondent has numerous convictions as an adult from 2004 to 2019 for a variety of other offences, including burglary and dishonesty offences, stealing motor vehicles and disorderly type offences. He also has numerous convictions for breaching community based orders and suspended imprisonment orders and for breaches of bail undertakings. Finally, he also has a conviction for escaping lawful custody in 2005, which arose from the same incident in which he committed the offence of assaulting a public officer, to which I have referred.

Serious offences

The respondent's criminal history includes convictions for five serious offences within the meaning of the Act. Putting to one side the offence committed when he was a juvenile, to which I referred earlier, the serious offences are the offence of dangerous driving causing death (contrary to s 59(1) of the Road Traffic Act 1974 (RTA)), the offence of aggravated dangerous driving causing death (contrary to s 59(1)(b) of the RTA), the offence of aggravated grievous bodily harm (in 2011) (contrary to s 297(3) of the Criminal Code), and the offence of doing an act with intent to harm, which resulted in bodily harm (contrary to s 304(2)(a) of the Criminal Code).
It is appropriate to outline the circumstances of those offences.

Dangerous driving causing death - 2004

The first serious offence was an offence of dangerous driving causing death in 2004.
On 13 February 2004, the respondent was driving a stolen vehicle from Kununurra, heading towards Wyndham. His cousin, the victim of the offence, was a passenger in the front passenger seat. The respondent fell asleep at the wheel and drifted onto the gravel shoulder, before being woken by the victim. The respondent tried to correct the steering, which resulted in the vehicle rolling over before coming to a stop. The victim was ejected from the vehicle and suffered injuries from which he later died.

On 16 August 2004, the respondent was sentenced in the District Court to a term of 18 months' imprisonment for that offence.

Aggravated dangerous driving causing death - 2011

The second serious offence was the aggravated dangerous driving causing death in 2011. As will appear below, this offence was committed by the respondent a relatively short time after he had been released from prison, having served a sentence of 18 months' imprisonment imposed on 9 June 2009.
On 25 January 2011, the respondent was driving a stolen vehicle whilst under the influence of alcohol and cannabis, and while speeding. He lost control of the vehicle after falling asleep at the wheel. The vehicle rolled several times before coming to a rest.
The first victim was thrown from the vehicle and killed instantly. She was not wearing a seatbelt.
The second victim suffered a badly broken leg, and a broken bone in his foot. The respondent was also charged with aggravated dangerous driving occasioning bodily harm in relation to that victim. While that offence is not a serious offence under the Act, it is a relevant aspect of his offending that informs the risk that he would commit a serious offence.
On 12 September 2011, the respondent was sentenced in the District Court to a term of 4 years' imprisonment. This was part of a total effective sentence of 5 years, as will appear below.

Aggravated grievous bodily harm - 2011

The third serious offence was an offence of aggravated grievous bodily harm, the circumstance of aggravation being that the respondent was in a family and domestic relationship with the victim. The victim was the respondent's de facto partner at the time, DNW. Again it should be noted that the respondent committed this offence a relatively short time after he had been released from prison, having served the term imposed on 9 June 2009, which was for offences of aggravated assault occasioning bodily harm and aggravated unlawful wounding also committed against DNW.
In the early morning of 26 March 2011, the respondent returned home after a day and night of drinking alcohol and consuming cannabis. When he got home, he had an argument with DNW. He punched her to the face, and then used a pair of scissors to stab her in the arm, chest and upper back, causing the skin to break. The sentencing judge noted that there was some evidence that there may have been five stab wounds in total.[10]
[10] Mr McDonnell's affidavit, 49 (Annexure N).
One of the chest wounds punctured DNW's lung, and, without medical intervention, could have resulted in her death. The sentencing judge noted that DNW was already in a bad way when help arrived, having trouble breathing, which was a side effect of the puncture to her lung.[11]
[11] Mr McDonnell's affidavit, 49 (Annexure N).
After he had injured DNW, the respondent continued to kick her. DNW's mother pulled her into a room and shut the door, as the respondent was running at DNW with a knife raised.
It was clearly a sustained brutal attack, and was committed in the presence of DNW's mother and some children who were upset and screaming while the respondent engaged in the violent offending.[12]
[12] Mr McDonnell's affidavit, 49 (Annexure N).
On 12 September 2011, at the time the respondent was sentenced for the aggravated dangerous driving causing death and aggravated dangerous driving occasioning bodily harm, the respondent was also sentenced in the District Court for this offence to a term of one year's imprisonment, to be served cumulatively with the sentence for the aggravated dangerous driving causing death, resulting in a total effective sentence of 5 years.

Doing an act, with intent to harm, which resulted in bodily harm - 2018

The last of the serious offences was an offence of doing an act, with intent to harm, as a result of which bodily harm was caused to the victim, who was the respondent's de facto partner at the time, KLC. This offence was committed two months into the term of a suspended imprisonment order that had been imposed for an offence of aggravated unlawful assault causing bodily harm, and which was also committed against KLC.
On 11 October 2018, the respondent was at home with KLC when, either in the evening or the early hours of the morning, he flew into a rage with her for unknown reasons. He pushed KLC against a wall and punched her in the nose, causing her to fall to the ground. He then kicked KLC to various parts of her body. He also punched her several times to the head. He then dragged her by the hair into another room.
As KLC sat in a chair with her head in her hands, the respondent told her to get changed, as she was covered in blood. He punched her again when she refused. He then took her into the backyard. There, KLC struck the respondent, who then left the scene.
As a result of the respondent's violence, KLC suffered a broken and bloodied nose, swelling to her face and bruises to her body. She also suffered two lacerations to her scalp which required staples to close.
On 5 November 2019, the respondent was sentenced for this offence to a term of 4 years and 2 months' imprisonment. The sentencing judge, O'Neal DCJ, noted that the offence involved 'a sustained violent attack on a vulnerable woman', and that the injuries she received were 'a serious example of bodily harm'.[13]

Other relevant offences

[13] Mr McDonnell's affidavit, 33 (Annexure G).

It is apt to refer to other offences of violence, which at least indirectly will affect the assessment of the respondent's risk of committing a serious offence, as they show both his propensity for violence, and a pattern of offending. In some instances, there was potential for much greater physical harm to the victim than actually occurred. Without ignoring the offence of assaulting a police officer, the most significant offences are those involving violence towards his de facto partners and another family member.
On 1 December 2006, the respondent was convicted and sentenced to a suspended term of 10 months' imprisonment in the Broome Magistrates Court in relation to two counts of assault occasioning bodily harm. The facts were that, on 15 July 2006, the respondent swung a stick at the victim, his de facto partner, DNW. She raised her arm to protect her face, resulting in a small abrasion on her arm. The respondent then punched DNW several times and, when her sister attempted to assist DNW, he threatened her.
On 12 March 2008, the respondent was convicted and sentenced in the Broome Magistrates Court to 12 months' imprisonment for an offence of assault occasioning bodily harm. The facts were that the respondent pushed the victim, his de facto partner, DNW, to the ground and kicked her several times. DNW suffered a sore and swollen jaw.
On 8 June 2009, the respondent was sentenced to 18 months' imprisonment in the Albany District Court in relation to offences of aggravated assault occasioning bodily harm and aggravated unlawful wounding. The circumstance of aggravation in each case was that the respondent was in a family or domestic relationship with the victim, DNW. The facts were that the respondent smashed a wine bottle over DNW's head, causing the bottle to smash and resulting in several bleeding lacerations to the back of her head. He then chased DNW and swung a metal pole at her several times, striking her to the left hand, upper arm, left foot, and thigh. DNW required six stitches to her head.
The next conviction for an offence of violence was in the Perth Magistrates Court on 21 February 2018, when the respondent received a Community Based Order for an offence of aggravated common assault, which occurred on 10 May 2017. That offence was committed by the respondent on his sister-in-law, DFU. In a fit of anger, the respondent flipped over a dining table, where DFU was seated with her partner. The table legs broke off. The respondent picked up one of the table legs and hit the victim over the head with it, causing a minor abrasion. He then strangled the victim using both hands around her neck.
That offence was committed a relatively short time after the respondent was released from prison, having completed the full sentence of 5 years imposed on 12 September 2011. By that stage, the respondent had completed three rehabilitation programmes, a Cognitive Brief Intervention Program in November 2009, an Indigenous Family Violence programme in May 2010, and another Cognitive Brief Intervention Program on 23 November 2012. The first two programmes were completed while the respondent was serving the sentence imposed on 8 June 2009 for the offences of aggravated assault occasioning bodily harm and aggravated unlawful wounding. The third programme was completed while he was serving the sentence imposed on 12 September 2011 for the offences of aggravated dangerous driving causing death, aggravated dangerous driving occasioning bodily harm and aggravated grievous bodily harm.
On 8 August 2018, the respondent was convicted and sentenced in the Perth Magistrates Court to a term of 9 months' imprisonment, suspended for 12 months, for an offence of aggravated unlawful assault occasioning bodily harm, the circumstance of aggravation being that the respondent was in a family and domestic relationship with the victim, KLC. That offence occurred on 2 April 2018, when the respondent grabbed KLC around the neck with both hands and threw her to the ground, causing her to fall on her shoulder. He then kicked and punched KLC as she lay on the ground. KLC suffered a cut to her left eye, swelling and a suspected dislocated shoulder.
It was while the respondent was subject to the suspended sentence for that offence that he committed the last serious offence on 11 October 2018.

Propensity to commit serious offences and pattern of offending

The word 'propensity' in s 7(3) of the Act is given its ordinary meaning, denoting an inclination or tendency to do something,[14] or, as Murray J noted in Director of Public Prosecutions (WA) v GTR,[15] 'a disposition to commit [serious offences] generally, in a particular way, or upon a particular type of victim', referring to 'some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of the quality of a diagnosable mental illness or personality disorder'. As his Honour also noted, 'if there is some discernible pattern in the offending behaviour, the relevance will be that it may tend to support the conclusion that the offender is a serious danger to the community, because he has a propensity to commit [serious offences] which has not been negated by treatment and so may continue to affect the offender's behaviour in the future.'[16] It has often been remarked that past behaviour is the most reliable predictor of future behaviour, especially where there is little to suggest a person has changed.
[14] The State of Western Australia v Bellamy [2013] WASC 467 at [70].
[15] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 (GTR) [178].
[16] GTR [178]. His Honour's use of the description 'serious danger to the community' adopted the language of the Dangerous Sexual Offenders Act 2006, with which that case was concerned. Similarly, his Honour referred to 'serious sexual offences', which were the subject of the Dangerous Sexual Offenders Act 2006. I have adapted the quote for the purposes of the Act.
Having regard to the evidence in these proceedings, in particular the evidence of the respondent's criminal offending, I am of the opinion that the following observations by the sentencing judges in the last two sentencing proceedings in the District Court aptly summarise the reasons why it may be concluded that the respondent has a propensity to commit serious offences of a violent nature.
On 12 September 2011, McCann DCJ said:[17]
Overall, I find that as a result of alcohol, drugs and unemployment you are a violent, troublesome and serious danger to the community. Your offending goes beyond what is often or usually seen in cases with offenders with your similarly unfortunate social upbringing.
You have not learned anything from previous disasters and previous punishments or attempts at rehabilitation, the details of which are set out in the pre-sentence report. When affected by substances such as alcohol, you are selfish, violent and a high danger to the community in many ways.
[17] Mr McDonnell's affidavit, 50 (Annexure N).
His Honour's reference to 'previous disasters' appears, at least, to have included the previous dangerous driving causing death offence, as the respondent was being sentenced for the offence of aggravated dangerous driving causing death, as well as for the offences of aggravated dangerous driving occasioning bodily harm and aggravated grievous bodily harm. The references to the respondent being a violent and serious danger to the community were apt to include both categories of serious offences of which the respondent had been convicted previously and at the time of sentencing, namely the driving offences and the offences of personal violence.
On 5 November 2019, O'Neal DCJ said:[18]
It can't be said that offending is uncharacteristic of you. It can't be said that the violent offending against domestic partners is uncharacteristic of you. It appears to be pretty much characteristic of you, notwithstanding the fact that you've previously been sentenced to terms of imprisonment.
This most recent offending, particularly in circumstances where you were in the middle of a term of suspended imprisonment for a violence offence against the same victim here demonstrates a continuing attitude of disobedience of the law, and that suggests that retribution, deterrence, and the protection of society are factors that warrant greater prominence in sentencing you.
[18] Mr McDonnell's affidavit, 36 (Annexure G).
Protection of society is also at the core of determining whether a person is a high risk serious offender.
It would be open to the court to find that the commission of serious violent offences, in particular against an intimate partner when he is affected by drugs and/or alcohol, is an identifiable characteristic of the respondent which has not been negated by treatment, and so may continue to affect his behaviour in the future. It would be further open to the court to find that the respondent's pattern of offending includes the same characteristics of drunken and/or drug-affected violent behaviour of a sustained and brutal nature to give vent to his feelings, or by way of retribution for perceived grievances, sometimes involving the use of weapons.
In my opinion, it would also be open to the court to find, based on the respondent's history, that he has demonstrated a propensity to drive while affected by alcohol and/or drugs when there is a risk that he will fall asleep at the wheel, and in a manner that puts at risk the safety of passengers in his vehicle and, potentially, other road users. In other words, it would be open to the court to find that the respondent has demonstrated a propensity to commit a serious offence of that kind.

Efforts at rehabilitation and the effect of rehabilitation

Earlier in these reasons I referred to the rehabilitation programmes in which the respondent participated prior to his last sentence. Reports from each of those programmes are annexed to Mr McDonnell's affidavit. They may be summarised as follows.
In November 2009, the Respondent completed the Cognitive Brief Intervention Program. The brief report from the facilitator indicated that the respondent engaged positively, although there was an indication that he did not express a point of view and respect the views of others. Further, while he showed evidence of understanding and improvement in respect of self-control, impulsivity, problem solving, perspective taking and relapse prevention, he did not show such understanding or improvement in relation to critical reasoning or consequences.
In April and May 2010, the respondent completed the Indigenous Family Violence programme. He was considered to have met most programme objectives and made some treatment gains. He was said to have gained a better understanding of the factors underlying his offending and demonstrated some responsibility for his behaviour. The report reveals that the respondent identified as a traditional Indigenous man. He attributed his violence in his relationship to jealousy arising from his belief that his partner was being unfaithful. He expressed troubling views about 'his right to express and behave on his emotions such as anger' and to physically assault his partner 'because she deserved it'.[19] When challenged about those beliefs by the group, he provided alternative non-violent solutions. However, the facilitators were under the impression that the respondent identified non-violent options only because he was challenged, and concerns remained that he would resort again to violence if he believed the 'gossips' about his partner being unfaithful were true.[20]
[19] Mr McDonnell's affidavit, 144 (Annexure AO).
[20] Mr McDonnell's affidavit, 144 (Annexure AO).
In November 2012, the respondent completed the Cognitive Brief Intervention Program a second time. He was noted to have shown a good understanding of programme content in respect of all areas, in contrast to the deficits he showed in some areas the first time, referred to above.
In May 2013 he was withdrawn from a Stopping Family Violence Program due to failing to attend.
In January 2016 he declined to engage in a Pathways Program because he was completing his full sentence.
As the applicant correctly submitted, it appears that the respondent made little, if any, genuine (or, at least, enduring) gains in the various prison-based programmes he completed prior to his current term of imprisonment, given that, soon after his release from prison on each occasion, he again committed violent offences against an intimate partner. The programmes also appear to have failed to achieve meaningful change in the respondent's consumption of, and reliance on, alcohol and illicit drugs.
During his current term, the respondent commenced the Connect and Respect programme in September 2020, but was not able to attend beyond the first two sessions because of COVID-19 symptoms which resulted in his isolation. He was said to have made no treatment gains due to his limited attendance. However, he was again admitted to that programme in May 2021, and on that occasion he completed the programme.
In the meantime, he had completed the Pathways programme, which is more fully described as the 'Criminal Conduct and Substance Abuse Treatment programme'.

Pathways programme - 2020/2021

The respondent was admitted to the pathways programme on 15 December 2020 and completed the programme on 18 March 2021. The Completion Report, dated 7 May 2021, disclosed that the respondent had made some treatment gains, but there were some issues concerning the manner in which he participated.
The respondent had presented with a lack of insight into the consequences of his offending, and a sense of entitlement. Factors that needed to be addressed included problems with emotional control when experiencing difficult emotions, which was further inhibited when the respondent was intoxicated by alcohol or drugs. He had also displayed a tendency to minimise and rationalise antisocial behaviour, which inhibited him from reflecting on and making changes to his offending behaviours.[21]
[21] Mr McDonnell's affidavit, 198 (Annexure BB).
Consequently, the respondent was identified to have treatment needs in relation to his excessive substance use, antisocial peers, antisocial cognition, and poor emotional control and regulation.[22]
[22] Mr McDonnell's affidavit, 198 (Annexure BB).
The facilitators reported that, whilst the respondent was an active participant, he was consistently late, would regularly wander off into out of bound areas during programme breaks, and often had to be told numerous times to return to the group when breaks would finish.[23] Nevertheless, the general impression appears to have been that he gave many indications during group sessions that he had a good understanding of the factors that had led or contributed to his offending, including his problem with substance use, his association with antisocial peers, his distorted cognitions and his lack of self-control. He also demonstrated an ability to empathise with his victim and to understand the harm he had caused her.[24]
[23] Mr McDonnell's affidavit, 199, 202 (Annexure BB).
[24] Mr McDonnell's affidavit, 199 - 200 (Annexure BB).

In relation to his substance use, the respondent 'provided strategies to manage his use through positive thinking, thought-stopping, avoiding antisocial peers, and building a prosocial network'.[25] However, his strategies to avoid relapse appeared to be superficial. For instance, although the respondent was able to identify that negative family and friends placed him at a high risk of returning to drug and alcohol use, he offered little in the way of meaningful strategies to manage antisocial peers. He tended to focus on avoidance strategies, such as walking away when he sees his friends drinking or using drugs, and did not acknowledge the difficulty of changing his entrenched social patterns.[26]
[25] Mr McDonnell's affidavit, 202 (Annexure BB).
[26] Mr McDonnell's affidavit, 199 (Annexure BB).
Moreover, it was observed that the respondent's apparent progress in the group programme was not necessarily reflected when he was away from the group, which '[brought] his ability to enact prosocial changes into question'.[27] At the conclusion of the programme, the respondent was considered to still have outstanding needs in relation to his antisocial cognition.[28] In that context, the facilitators noted:[29]
His apparent genuineness in making behaviour changes in the group was contrasted with his behaviour outside of the group. As noted earlier, he would continuously walk off from the programs area during breaks even after being reprimanded for doing so, would often need to be called upon multiple times to return from session breaks, and was regularly late for sessions. His tendency to switch between healthy and negative thinking patterns is reflected in his prison behaviour. His TOMS [i.e., the prison offender management system] record indicates numerous negative notes regarding his poor prison behaviour, interspersed with occasional positive notes. Therefore, [the respondent] is considered as having outstanding needs in this area.
[27] Mr McDonnell's affidavit, 202 (Annexure BB).
[28] Mr McDonnell's affidavit, 199 - 200 (Annexure BB).
[29] Mr McDonnell's affidavit, 200 (Annexure BB).
The facilitators also noted that, while the respondent demonstrated some gains in his emotional control, there was a need for ongoing practice and rehearsal to consolidate and develop his skills further.[30] In short, his treatment gains were considered to be 'emerging'.[31] Further, the facilitators noted that, if the respondent were to return to substance use, he presents as a high risk of reoffending.[32]
[30] Mr McDonnell's affidavit, 200 (Annexure BB).
[31] Mr McDonnell's affidavit, 201 (Annexure BB).
[32] Mr McDonnell's affidavit, 201 (Annexure BB).
At interview for his parole assessment in April 2021, when asked about the content of the Pathways programme, the respondent provided 'vague and generic answers' concerning what he was expected to have learned from the programme.[33] He was able to express that he did not wish to be around people who consume alcohol, and indicated that was his primary reason for wanting to move to a particular remote Aboriginal community. However, the Senior Community Corrections Officer who prepared the Parole Assessment report noted that there are signs of alcohol use at the community, including empty beer cans at his nominated address.[34]

Connect and Respect Program Completion Report

[33] Mr McDonnell's affidavit, 191 (Annexure BA).

[34] Mr McDonnell's affidavit, 191 (Annexure BA).

The respondent completed the Connect and Respect Program from 12 May 2021 to 6 August 2021. The programme is a '51-hour skills based domestic violence behaviour change' programme, consisting of three individual sessions and 24 group sessions.[35]
[35] Mr McDonnell's affidavit, 208 (Annexure BD).
Going into the programme, the respondent's attitude was less than promising. During his interview to enter the programme, he told the assessor that 'he knows what to do and is tired of being judged by white people'.[36] However, the subsequent assessment of his participation during the programme was positive.
[36] Mr McDonnell's affidavit, 17 (Annexure AX).
The programme facilitators provided the following summary in their report of 30 August 2021:[37]
[The respondent] participated fully in the Connect & Respect Program, engaging in group discussions and activities, and completing individual worksheet activities. He took his own notes during the program sessions and developed a safety plan for use in the community which may assist him to manage difficult situations and challenging emotions without using violence.
Overall [the respondent] made some significant gains from the program and demonstrated a shift in his attitude and thinking around using core values to make positive choices, learning to recognise and understand emotions, identifying high risk situations and creating strategies to manage them. [The respondent] may still retain some male entitlement and privilege thinking from his formative years, where gender inequality was normalised, along with alcohol excesses and domestic violence.
[37] Mr McDonnell's affidavit, 211 - 212 (Annexure BD).
While that summary suggests a relatively positive outcome, the detailed observations in the report suggest that there were reservations about the respondent's capacity to implement his proposed strategies within the community. For instance, the facilitators noted that the respondent has a high level of confidence, and he has previously relied on confidence and strength to avoid relapse, without sound strategies to guide his thinking and behaviours. They remarked that the respondent's newly developed plans 'do not show details of how he will put them into practice' and 'there is some concern that he may still rely on his strength of will and the belief that he will be able to regulate his emotions'.[38]
[38] Mr McDonnell's affidavit, 209 (Annexure BD).
Therefore, while the respondent appeared to make a shift in his thinking about his use of alcohol and substances being a choice preceding violence, rather than the cause of his violence (although exacerbating his violent behaviour),[39] his strategy for preventing a relapse into substance use involved little more than relying on his strength of will to say 'no' and stop associating with peers who drink excessively.[40]
[39] Mr McDonnell's affidavit, 209 (Annexure BD).
[40] Mr McDonnell's affidavit, 211 (Annexure BD).
In relation to the apparent residual 'male entitlement thinking', the facilitators reported that there was evidence that the respondent's thinking was moving towards gender equality.[41] However, it appears to be an area that requires further work to consolidate that movement into enduring change.
[41] Mr McDonnell's affidavit, 210 (Annexure BD).
It appears the respondent also intends to rely on his strength of will to regulate his emotions and resist peer pressure. The programme facilitators noted that this '… [has] not adequately reduced his risk or previous emotions in the past, and should [he] rely solely on them, his risk of reoffending in a like manner is not reduced.'[42]
[42] Mr McDonnell's affidavit, 211 (Annexure BD).

Assessments of the respondent's risk

While psychiatric and psychological assessments of the respondent's risk of committing a serious offence in the future will be conducted in the event that the matter proceeds to a restriction order hearing, assessments have been made by the facilitators of the programmes, under the supervision of a clinical supervisor, and by community corrections officers in parole assessment reports. There is also a Treatment Assessment Report prepared on 4 February 2020, which purports to make an assessment of the respondent's risk of offending.[43] Although there is what appears to be a surname at the top of the report, which is likely the name of the author, their qualifications are not identified. Counsel for the applicant informed the court that such reports are usually prepared by prison officers. On that basis, while the factual contents of the report have some relevance, I have not placed any weight on the assessment of risk in the report.
[43] Mr McDonnell's affidavit, 166 (Annexure AW).
The context in which the most recent assessments have been made has included consideration of a Post-Sentence Supervision Order, which would provide some measure of monitoring and supervising the respondent if he were to be released into the community while not subject to a restriction order.
Having regard to the concessions made on the respondent's behalf, it is sufficient to consider the most recent assessments of risk.
I have already referred to relevant aspects of the reports from the treatment programmes in which the respondent has participated. It is apt to note that, prior to his completion of the Pathways and Connect and Respect programmes, the respondent was assessed in a Parole Assessment report dated 24 December 2020 to be a 'high risk to the community due to the likelihood of serious and or violent offending within a short period of his release'.[44] At that stage it was noted that he had failed to address his 'violence offence cycle' in the past and had not completed programmes during his current term to demonstrate a willingness to reduce his pattern of 'violence/domestic violence'.[45] It was also noted that, during the interview, the respondent appeared to hold resentment towards the 'white community' and referred to 'white law' keeping him in prison.[46] The author questioned the respondent's preparedness to engage in treatment in a meaningful way. However, as I have outlined above, the respondent did participate in a meaningful way during the subsequent programmes. He has also indicated a willingness to continue attending programmes in the community.[47] The issue is whether his presentation during the programmes necessarily reflects his attitudes outside the programmes, and whether any gains made during the programmes will endure.
[44] Mr McDonnell's affidavit, 174, Annexure AX.
[45] Mr McDonnell's affidavit, 174 (Annexure AX).
[46] Mr McDonnell's affidavit, 174 (Annexure AX).
[47] Mr McDonnell's affidavit, 191 (Annexure BA, Parole Assessment 23 April 2021).
A matter of some concern has been the respondent's poor behaviour in prison, incurring numerous charges or negative incident reports for prison offences and other misbehaviour during the time he has served the various sentences of imprisonment. This was a factor referred to in the Pathways programme completion report as bringing into question the respondent's ability to enact prosocial changes, notwithstanding that he had displayed prosocial thinking patterns during the programme. Since 16 April 2019, he has incurred 16 charges, which are listed in the Post-Sentence Supervision Order (PSSO) Report dated 18 October 2022.[48] It is sufficient to note that they reveal problematic behaviours while the respondent has been in the regimented environment of a prison, where he is subject to significant oversight and restrictions. That is not to say that the behaviours (especially the more recent incidents) inform the level of his risk of committing a serious offence, but they do raise concerns about his ability to avoid a relapse into antisocial conduct in the absence of restrictions.
[48] PSSO Report, 3.
Further, the respondent's capacity to implement change is challenged by the fact that he has spent most of his adult life in custody since 2004, with his longest period in the community being approximately four months, as was noted in the PSSO Report.[49]
[49] PSSO Report, 4.
The Community Corrections Officer who prepared the PSSO Report reported that the respondent's risk of serious re-offending is considered high, and is correlated to substance misuse and an inability to appropriately manage interpersonal communication.[50] More specifically, she noted that the respondent is considered to be 'of high risk of violent re-offending'.[51]
[50] PSSO Report, 1.
[51] PSSO Report, 4.
Notwithstanding the respondent's participation in rehabilitation programmes and the gains reported from those programmes, which are acknowledged by the author of the PSSO Report, it would be open for the court to conclude that the assessments of the respondent's risk are well-founded, based on his history. That was essentially the basis on which the Prisoners Review Board denied the respondent parole on 28 September 2021.[52] The Board was not satisfied that the risk the respondent presented to community safety, in light of his serious violent offending history, had not sufficiently reduced at that stage. The Board's decision is not relevant to determining whether the respondent is a high risk serious offender. However, the considerations on which it relied are obvious reasons, in my opinion, why the court might find that the respondent presents an unacceptable risk of committing a serious offence.
[52] Mr McDonnell's affidavit, 221 (Annexure BG).

Need to protect the community

Having regard to the nature of the respondent's violent offending, there is an obvious need to protect members of the community against that violence, especially women with whom the respondent might form a relationship or family members with whom he comes into conflict. The potential for physical and psychological harm is significant. In some instances, the nature of his violence has had the potential for catastrophic consequences, greater than what occurred.
There is also an obvious need to protect members of the community from the respondent's dangerous risk-taking in his use of vehicles when affected by alcohol and/or illicit drugs. Twice, his dangerous behaviour has resulted in the death of a passenger. On one of those occasions, serious injury was also caused to another passenger. His behaviour had the potential for catastrophic consequences for other road users.

PSSO

As the respondent was not released on parole, his release after serving the full term of his sentence would be without supervision or restrictions, other than the terms of a Violence Restraining Order for the protection of the victim of his previous violent offending. That is the context in which the Prisoners Review Board came to make a PSSO with respect to the respondent, pursuant to pt 5A of the Sentence Administration Act 2003 (WA), on 21 December 2022. Having determined that the respondent's criminal history suggested a high risk of reoffending, and that the respondent does not have sufficient protective strategies in place to reduce his risk to the safety of the community or to support his rehabilitation, the Prisoners Review Board decided that it was necessary that the respondent be subject to supervision, and to obligations and restrictions, under a PSSO for a period of one year, starting on 20 January 2023.
Again, in light of the respondent's concession, it is not necessary to examine the obligations and restrictions contained in the PSSO. It is sufficient to note that, if it were appropriate for the respondent to be in the community subject to a supervision order under the Act, the conditions of such an order would be more extensive than the PSSO provides. While the PSSO would provide a degree of protection of the community, it would be open for the court to find that it is not adequate protection against the respondent's risk of committing a violent offence, and/or that the respondent's history indicates that a period of supervision and restrictions longer than 12 months is necessary for the respondent to achieve further gains in rehabilitation and consolidate those gains, so as to ensure adequate protection of the community. I note that one of the difficulties with the potential effectiveness of the PSSO to provide adequate protection of the community is that the respondent would be released to an Aboriginal community near Kununurra where there would be limitations upon the extent of supervision and monitoring of the respondent that could be undertaken by the authorities. I will discuss that matter below in dealing with proposed accommodation.

Accommodation

The issue of whether the respondent has suitable accommodation available to him in the community upon release is primarily relevant to the determination of whether the respondent should be subject to an interim detention order or an interim supervision order, in the event the threshold test is met under s 46 of the Act. If the test is met, then the possibility that the respondent will be found to be a high risk serious offender requires that measures be in place, pending the hearing of the restriction order application, that will ensure adequate protection of the community against that putative risk. If the respondent is to be released on an interim supervision order, it is essential that he have accommodation with characteristics that would mitigate the risk and allow for suitable supervision and monitoring of the respondent.
At the time of the preparation of the PSSO Report, the respondent had nominated three residential addresses where he could be accommodated upon release. Enquiries were made by a senior community corrections officer in relation to the properties. In relation to two of the properties, although in September 2021 they had been assessed to be suitable places to which the respondent could be released, at the time of the PSSO Report, the occupiers could not be contacted to confirm the availability and suitability of the properties. One of those properties, which is in Kununurra, was the proposed residential property at the time of this hearing. I will discuss that property below.
The third property, which was the respondent's preferred accommodation at the time of the PSSO Report, was located in an Aboriginal community near Kununurra.[53] It was ascertained that, while antisocial behaviour is not tolerated on that property, the consumption of alcohol is not restricted. That raises concerns about managing the risk that the respondent would relapse into alcohol use, which is a significant risk factor for violent offending by the respondent. The strategies the respondent has identified for dealing with that risk are rudimentary and reliant on his 'strength of will', as discussed above. Questions were also raised about the ability of staff at the Kununurra Adult Community Corrections (ACC) to be able to supervise the respondent at the community, and about the availability of 'substance use' counselling to the respondent. It is not necessary to discuss the details of those matters, as the property was not proposed by the respondent for the purposes of these proceedings. It is sufficient to note that part of the difficulty with the respondent residing in that community is the lack of mobile telephone coverage and limited transport.
[53] PSSO Report, 5.
In preparation for these proceedings, the accommodation issue was discussed with the respondent by Ms Stacy Madden, a Senior Community Corrections Officer, on 21 November 2022. The only address proposed by the respondent at that time was the property in Kununurra, where he would reside with his biological sister, Ms W.[54] The respondent told Ms Madden that he was aware he was unable to be accommodated at his preferred address in the Aboriginal community near Kununurra, because it was not possible to conduct GPS monitoring at that location.[55]
[54] Ms Goode's affidavit, 2 [7].
[55] Ms Goode's affidavit, 2 - 3 [9].
Ms Madden contacted with Ms W by telephone the same day. Ms W indicated that she was aware of the respondent's criminal history, and confirmed that she was willing for him to reside with her.[56] Ms W indicated that she lives at the property with her 10-year-old son and her mother. However, as will appear below, it was subsequently ascertained that other persons reside at the property.
[56] Ms Goode's affidavit, 3 [10].
Ms Madden also contacted the Kununurra Adult Community Corrections Centre, who advised her that the respondent could engage with the Kimberley Mental Health and Drug Service for intervention if required, and could be subject to regular urinalysis testing in the Kununurra township.[57] Testing of electronic GPS monitoring equipment was undertaken at the proposed address on 24 November 2022. Ms Goode reports that, while no issues were identified during that testing, effective monitoring would be confined to the immediate township.[58]
[57] Ms Goode's affidavit, 3 [12].
[58] Ms Goode's affidavit, 3 [13].

Mr Clancy-Lowe undertook an assessment of the proposed residence for WA Police in November and December 2022. He ascertained from the WA Police Information Management System that six adults were recorded as current occupants of the relevant address, ranging in ages from 18 years to 57 years. For present purposes, it is not necessary to name the persons who so recorded, other than Ms W. It is sufficient to note that five of the six residents have criminal records. Of those five, the four oldest individuals have convictions for violent offences, as well as convictions for breaches of violence restraining orders. Further, a number of incidents including several related to mental health issues, alcohol use and/or domestic violence have been recorded as having occurred at the proposed address in 2022.[59] Police had been called to the address because of disturbances on numerous occasions. Again, it is not necessary to describe all of the incidents. They are numerous. They suggest that the residence would not provide the respondent with an environment of pro-social support. A number of the incidents bring into question Ms W's stability, and, therefore, her capacity to provide stability for the respondent. Further, there is a significant risk that the respondent would be exposed to the consumption of large quantities of alcohol and to violent behaviour.
[59] Mr Clancy-Lowe's affidavit, 4 [13].
When local police attended the address on 23 December 2022, Ms W informed them that, although two of the persons identified as occupants were present at the house, one normally resides in Karratha, and the other resides at another address in Kununurra. However, it is apparent that those persons may reside at the address from time to time.
Mr Clancy-Lowe refers to other matters of concern to WA Police in relation to the location of the residence, but I do not consider that they are relevant to the suitability of the accommodation, having regard to the risk that has been identified in respect of the respondent concerning the commission of serious offences.
The matters that are relevant are the number of persons who might be resident at the accommodation, their criminal histories, particularly for violent offences, the consumption of alcohol and the unstable environment evident from the incidents to which I have referred.
In my opinion, it was properly conceded on the respondent's behalf that the property is not suitable as accommodation for him if he were to be released on an interim supervision order.

Disposition

Are there reasonable grounds for believing that the court might find that the respondent is a high risk serious offender?

Having regard to all of the circumstances I have outlined, in particular the respondent's offending history and his unmet treatment needs, I am satisfied there are reasonable grounds to believe that the court might find, under s 7(1) of the Act, that the respondent is a high risk serious offender. It would be open for the court to find that, over many years, the respondent has demonstrated a propensity to commit violent offences, especially against his partners, often involving persistent and brutal force, with significant physical and psychological traumatic consequences for his victims. It would also be open for the court to find that the respondent has demonstrated a propensity to act recklessly in the use of motor vehicles, with fatal results. Finally, it would be open to the court to find that, despite engaging in rehabilitation programmes:
(1)the respondent continues to have treatment needs in respect of factors that put him at significant risk of committing serious offences in the future;
(2)such offences would have the potential for significant harm to members of the community, especially members of his immediate community;
(3)having regard to that potential harm, the risk that the respondent would commit a serious offence is unacceptable; and
(4)the community would not be adequately protected against that unacceptable risk unless the respondent is subject to a restriction order.
As I have already indicated, given the respondent's history of violent offending and his apparent unmet treatment needs, I do not consider that a post-sentence supervision order would ensure the adequate protection of the community against the putative unacceptable risk that respondent would commit a serious offence. The respondent did not submit otherwise.
As I am satisfied there are reasonable grounds to believe that the court might find that the respondent is a high risk serious offender, it is necessary to list the matter for a restriction order hearing and to make orders pursuant to s 46, programming the hearing of the restriction order application. Both parties indicated that 10 May 2023 is a suitable date for the hearing.

Should an interim detention order or interim supervision order be imposed?

The question that remains is whether I should make an order pursuant to s 46(2)(c)(i) of the Act that the respondent be detained in custody until the determination of the restriction order application. There are two alternatives.
The first is to make an order pursuant to s 58(5) of the Act. Section 58 provides, relevantly:[60]
[60] The phrase 'in any other case' in s 58(5) applies to the present case, as it does not fall within the provisions of s 58(3) or s 58(4). Section 30 specifies standard conditions that must be included in a 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 … 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.
…
(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.
As can be seen from s 58(2)(b), the section applies 'if the offender to whom the pending proceedings relate is not in custody'. This has been construed to apply in relation to a person who would not be in custody on a specified future date from which the order is to take effect.[61] Therefore, although the respondent is not due to be released from his current sentence until 20 January 2023, it would be open to make an interim supervision order at this stage, to take effect from that date, provided I am satisfied it is desirable to do so to ensure adequate protection of the community.
[61] See, for example, The State of Western Australia v Hart [2021] WASC 205 [32] - [33].
The wording of both s 46(2)(c)(i) and s 58(5) is non-prescriptive. Arguably, it is open to the court to make neither an interim detention order nor an interim supervision order pending the determination of the restriction order application.[62] I would have thought that it would be rare for the court at a preliminary hearing to consider it appropriate to make no order restricting the respondent, having determined that he might be found to be a high risk serious offender. A possible scenario might be where a PSSO has been made that is sufficiently restrictive, and of sufficient length, as to provide adequate protection of the community against the putative risk until the restriction order hearing.
[62] The State of Western Australia v Narrier [2021] WASC 250 [59].
Given the conclusion I have reached about the respondent's putative risk, his unmet treatment needs and the lack of suitable accommodation to facilitate the mitigation of his risk, this is not an appropriate case in which to make no order that would restrict the respondent until the restriction order hearing. As I have already indicated, it is open to conclude that the PSSO would not provide adequate protection of the community. In any event, on the evidence presented in these proceedings, there are real doubts about whether the respondent could be adequately supervised and monitored at the address where he would be released under the PSSO.
The respondent did not submit that the PSSO provides a proper foundation for making no order under either s 46(2)(c)(i) or s 58(5) of the Act.
As I noted at the outset, the applicant submits that the respondent should be subject to an interim detention order until the restriction order hearing. At the very least, that is because there is no suitable accommodation to which the respondent can be released on an interim supervision order that would enable such an order to provide adequate protection of the community against the respondent's putative risk of committing a serious offence. The respondent conceded that, at this stage, suitable accommodation has not been identified, and, therefore, the respondent could not be released on an interim supervision order.
With respect, the applicant's submission must be accepted, and the respondent's concession is properly made, for the following reasons.
The factors to be taken into account in determining whether to make an interim supervision order rather than an interim detention order, in the exercise of discretion, include the following:[63]
(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.
(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.
[63] Director of Public Prosecutions (WA) v Allen [2006] WASC 160 [62] - [64]; The State of Western Australia v Ryan [2020] WASC 352 [21]; The State of Western Australia v Narrier [70].
As to the first of those factors, I am satisfied on the basis of the evidence in these proceedings that there is a reasonably strong prospect of the applicant satisfying the court that the respondent is a high risk serious offender.
With respect to the second of the factors, while the court's capacity to make the relevant assessment is limited in the absence of a risk assessment by a psychiatrist or psychologist at this stage, the applicant's history of offending soon after release from custody, the extent of his offending, and his poor compliance with supervision in the past, evidenced by breaches of community based orders, bail undertakings and suspended sentences, leaves me with significant doubt that he would adhere to the conditions of an interim supervision order. I am not satisfied at this stage that he would. Of particular concern would be his ability to abstain from alcohol or illicit substance use. Further, given the nature of the respondent's violent offending in the past, stemming in part from his poor emotional regulation, sense of entitlement and pro-violence attitudes, even if he were to adhere to reasonable conditions of an interim supervision order, that would not necessarily mitigate his putative risk sufficiently at this stage. That is because, overall, it appears that he has more work to do to sustain and implement treatment gains in those areas. However, it is not necessary to reach a concluded view about that matter, as the respondent's capacity to adhere to the conditions of a supervision order would be significantly compromised at the proposed accommodation, for the reasons I outlined earlier.
I am satisfied that the proposed accommodation is not suitable to enable an interim supervision order to provide adequate protection of the community against the respondent's putative risk of committing a serious offence. Therefore, while I am mindful of the third factor referred to at [119] above, this is a case in which it is necessary to make an interim detention order to ensure the adequate protection of the community, pending the hearing of the restriction order application.
It is appropriate that the parties have liberty to apply generally. Counsel for the respondent indicated that an application might be made for orders to set aside the interim detention order and substitute an interim supervision order if suitable accommodation can be found. The applicant reserved its position on whether the availability of suitable accommodation will mean that a supervision order would provide adequate protection of the community, noting that the applicant might still contend that it would not, having regard to the evidence currently available. However, he agreed that, given the basis on which the application was conceded, it was appropriate that the respondent have the opportunity to ask the court to revisit the matter, if the accommodation situation changes.

Other orders sought

I will make orders in terms of the State's minute of proposed orders filed on 5 January 2023. Those orders reflect the standard orders made in applications of this kind to programme the matter to a restriction order hearing, including the necessary orders under the Act, requiring the respondent to undergo examination by two qualified experts. The qualified experts have been identified as being available to conduct the examinations and prepare reports in time for the hearing on 10 May 2023. As discussed, there is also an order that the respondent be detained in custody until the final determination of the application.

Orders

Accordingly, on 13 January 2023, I made the following orders:
(1)The hearing of the restriction order application pursuant to section 48 of the High Risk Serious Offenders Act 2020 be heard on 10 May 2023.
(2)The respondent undergo examinations by two qualified experts, namely one psychiatrist, Dr Peter Wynn Owen and one psychologist, Dr Benjamin Bannister, for the purposes of preparing reports as required by sections 46(2)(a) and 74 of the High Risk Serious Offenders Act 2020 that are to be used on the hearing of the restriction order application.
(3)The experts named in order 2 are not to include in their reports information or opinions about the respondent based on a communication with a third person unless details of that communication is sufficient to identify the person with whom the communication was held, its date and a summary of its content is included in the expert's report.
(4)The reports of the experts are to be provided to the Applicant at least 42 days prior to the hearing of the restriction order application.
(5)Any report authored by the Department of Justice, including any Proposed Management Plan, is to be provided to the Applicant at least 35 days prior to the date of the hearing of the restriction order application.
(6)The experts named in order 2 liaise with the Department of Justice as to a Management Plan (if appropriate) for the respondent to be supervised in the community.
(7)Pursuant to section 122 of the Criminal Investigation Act 2006, the experts named in order 2 may be supplied with and may view any audio-visual recordings of interviews with the respondent, or transcripts of the same, for the purpose of preparing their reports.
(8)At the hearing of the restriction order application, the reports provided by the experts named in order 2 shall stand as the evidence in chief of the experts and no further evidence in chief may be adduced without the leave of the Court.
(9)The respondent is to be detained in custody until the final determination of the application, pursuant to section 46(2)(c)(i) of the High Risk Serious Offenders Act 2020.
(10)There be liberty to the parties to apply generally.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AJ
Associate to the Honourable Justice Fiannaca
16 JANUARY 2023