The State of Western Australia v Miller [No 2]

[2025] WASC 353

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- MILLER [No 2] [2025] WASC 353

CORAM:   GETHING J

HEARD:   12 & 28 AUGUST 2025

DELIVERED          :   28 AUGUST 2025

FILE NO/S:   SO 3 of 2024

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

AGUSTINE WINTER MILLER

Respondent

Catchwords:

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

Legislation:

High Risk Serious Offenders Act 2020 (WA) s 7, s 48

Result:

Supervision order made

Category:    B

Representation:

Counsel:

Applicant	:	Ms T Hollaway
Respondent	:	Mr T Hager

Solicitors:

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

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

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

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

Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246

Garlett v The State of Western Australia [2022] HCA 30; (2022) 277 CLR 1

The State of Western Australia v AB [No 3] [2022] WASC 126

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

The State of Western Australia v Colbung [No 2] [2023] WASC 197

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

The State of Western Australia v Hansen [No 2] [2025] WASC 4

The State of Western Australia v Paraha [2025] WASC 20

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

The State of Western Australia v Williams [No 2] [2024] WASC 215

GETHING J:

1. Introduction

1. The State of Western Australia (the State) contends that the respondent, Agustine Winter Miller, is a high risk serious offender as defined in High Risk Serious Offenders Act 2020 (WA) (HRSO Act) s 7 for whom a restriction order should be made pursuant to HRSO Act s 48.

2. It is not in issue that at the time the State's application was made on 28 February 2024 (Application) Mr Miller was a 'serious offender under custodial sentence' in respect of whom the State may make an application for a restriction order. 

3. On 24 April 2024, Quinlan CJ heard the preliminary hearing and determined that there were reasonable grounds for believing that the court might, in accordance with HRSO Act s 7, find Mr Miller to be a high risk serious offender. The Chief Justice further made an interim order pursuant to HRSO Act s 46(2)(c)(i) detaining Mr Miller in custody until the final determination of the Application. The Chief Justice ordered that Mr Miller undergo assessments by a psychiatrist and psychologist for the purposes of preparing the reports required by HRSO Act s 46(2)(a) and s 74, and as well as other programming orders. There were additional directions hearings on 18 September 2024 and 5 November 2024 to ensure that the materials before the court were up to date.

4. The hearing was initially listed for 25 February 2025 and then on 19 May 2025, each of which was adjourned by me to at the request of Mr Miller's counsel to allow him more time try and find suitable accommodation.

5. The Application was heard by me on 12 August 2025 at which evidence was taken.  There was a need for a further adjournment until 28 August 2025 to obtain further information about the proposed residential address for Mr Miller.   

6. In summary, the State's position is that the court should find that Mr Miller is a high risk serious offender for whom a restriction order is appropriate.  Further, on the basis of the information as to the proposed residence, Mr Miller had not proven on the balance of probabilities that he would substantially comply with the standard conditions of a supervision order.  

7. Mr Miller, through his counsel, accepted that he is a high risk serious offender.[1]  Counsel Mr Miller contended that the court should be satisfied that, with the accommodation proposed, Mr Miller would substantially comply with the standard conditions of a supervision order.

   [1] Transcript, 12.08.24, page 30.

8. At the conclusion of the hearing on 28 August 2025, I advised the parties that I had formed that view that, while I considered Mr Miller to be a high risk serious offender, I was satisfied that a supervision order was appropriate, which I then made.  

9. My reasons for coming to this conclusion follow.

10. In these reasons, I will consider the following:

    ·The evidence.

    ·The relevant legal principles.

    ·Is Mr Miller a high risk serious offender?

    ·If so, what form of order should be made to ensure the adequate protection of the community?

1. The Evidence

1. The State tendered three Books of Materials:[2]

   (a)volume one, containing material from the Department of Justice, filed 15 July 2024;

   (b)volume two, primarily containing historical reports, on 19 September 2024; and

   (c)volume three, containing the reports pursuant to HRSO Act s 74, on 5 August 2025.

   [2] Which I will refer to as 'BM##'.

2. The State's evidence at the hearing comprised the oral testimony of four witnesses:

   (a)Dr Mark Hall, being the author of the Psychiatric Report, dated 12 September 2024 (Dr Hall's 2024 Report),[3] Addendum Report dated 7 May 2025 (Dr Hall's First Addendum Report)[4] and Addendum Report dated 7 August 2025 (Dr Hall's Second Addendum Report);[5]

   (b)Dr Kathryn Riordan, being the author of the Psychological Risk Assessment Report, dated 19 August 2024 (Dr Riordan's 2024 Report)[6] and Addendum Report dated 3 May 2025 (Dr Riordan's First Addendum Report)[7] and Second Addendum Report dated 3 August 2025 (Dr Riordan's Second Addendum Report);[8]

(c)Emma Cashmore, being the author of, among other reports, the Treatment Options Report dated 30 January 2025[9] and Addendum Treatment Options Report dated 29 April 2025;[10] and

(d)Heather Applin, being the co-author of the Community Supervision Assessment Report, dated 18 September 2024 (the CSA Report)[11] and Updated Community Supervision Assessment dated 30 July 2025 (Addendum CSA Report).[12]

Each witness gave some additional oral evidence in chief, and was briefly cross-examined.

[3] BM 448ff (vol 2).

[4] BM 698ff (vol 3).

[5] This report was not received in time to be included in the Book of Materials, so was tendered separately.

[6] BM 474ff (vol 2).

[7] BM 704ff (vol 3).

[8] BM 734ff (vol 3).

[9] BM 693ff (vol 3).

[10] BM 696ff (vol 3).

[11] BM 520ff (vol 2).

[12] BM 777ff (vol 3).

1. Mr Miller did not file any affidavit evidence, nor give or adduce evidence at the hearing.

2. At the hearing on 28 August 2025, the State also tendered:

   (a)an Adult Community Corrections Update Report dated 21August 2025 (August 2025 Report); and

   (b)an affidavit of Martyn Clancy-Lowe sworn 20 August 2025 (Clancy-Lowe Affidavit).

   Mr Clancy-Lowe is the executive manager of the Serious Offender Registry with the WA Police Force.  The State had also filed supplementary submissions on 22 August 2025.

1. The relevant legal principles

1. The objects of the HRSO Act are 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 to provide for continuing control, care or treatment of high risk serious offenders.[13] The powers conferred by the HRSO Act are not to be exercised for the purpose of imposing additional punishment on the offender, but, rather, for the ultimate purpose of protecting the community.[14]

   [13] HRSO Act s 8.

   [14] Garlett v The State of Western Australia [2022] HCA 30; (2022) 277 CLR 1 [55] - [56] (Kiefel CJ, Keane and Steward JJ) (Garlett).

2. The State may make an application for a restriction order where the offender is a 'serious offender under custodial sentence' pursuant to HRSO Act s 35. This phrase is defined in HRSO Act s 3 to mean, relevantly, 'a person … who is under a custodial sentence for a serious offence…'. The term 'serious offence' is defined in HRSO Act s 5 to include the offences specified in sch 1 div 1. These offences relevantly include the offence under the Criminal Code (WA) (CC) s 320(2), s 321A(3) and s 325, each of which involves serious sexual offending.

3. The central question in the application is whether the offender is a 'high risk serious offender', which is defined in HRSO Act s 7(1):

   An offender is a high risk serious offender  if the court dealing with an application under this Act finds that it is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.

4. The onus is on the State to satisfy the court that the offender is a high risk serious offender.[15]  The phrase 'high degree of probability' connotes a standard that is more than the civil standard of balance of probabilities, but less than the criminal standard of beyond reasonable doubt.[16]

   [15] HRSO Act s 7(2).

   [16] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 [28] (Steytler P and Buss JA) (GTR).

5. There are two distinct evaluative steps in HRSO Act s 7(1):[17]

   (1)an evaluation of whether there is an unacceptable risk that the offender will commit a serious offence in the future, in the absence of any measure that would provide protection of the community against that risk; and

   (2)if so, an evaluation of whether it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community.

   So expressed, the HRSO Act does not provide that a person who presents with a risk of committing a serious offence is necessarily a high risk serious offender.[18] 

   [17] The State of Western Australia v Hansen [No 2] [2025] WASC 4 [30], [50] (Fiannaca J) (Hansen [No 2]); The State of Western Australia v Paraha [2025] WASC 20 [10] - [11] (Lemonis J) (Paraha); The State of Western Australia v Williams [No 2] [2024] WASC 215 [39] - [41] (Lemonis J).

   [18] Garlett [84]; Paraha [11] - [12].

6. The principles by which these evaluative judgments are to be made were discussed by the High Court in Garlett.  From the decisions of the majority,[19] a number of principles may be discerned:

   (1)HRSO Act s 7 contemplates a practical evaluation concerned with the circumstances of the particular offending and the particular offender;[20]

   (2)in that evaluation, considerations of retribution and deterrence, central to sentencing by way of punishment under the common law, have no part to play;[21]

   (3)the requirements that the risk be 'unacceptable' and that the restriction order be 'necessary' to ensure 'adequate' protection of the community direct attention to whether the identified risk to the community can be tolerated;[22]

   (4)whether or not a risk that an offender will commit a serious offence is 'unacceptable' is a question which requires the court's judgment as to the nature and extent of the harm said to be in prospect;[23]

   (5)the court must consider whether a restriction order is 'necessary' to ensure adequate protection of the community;[24]

   (6)whether a restriction order is 'necessary' to protect against the identified risk requires recognition of what would otherwise be the offender's entitlement to be at liberty, an entitlement not lightly to be denied;[25] and

   (7)the word 'adequate' indicates that a qualitative assessment is required.[26]

   [19] Kiefel CJ, Keane and Steward JJ, with whom Gleeson J generally agreed; Edelman J.

   [20] Garlett [84].

   [21] Garlett [55].

   [22] Garlett [226] (Edelman J).

   [23] Garlett [73].

   [24] Garlett [73].

   [25] Garlett [73], [226].

   [26] Garlett [106], citing The State of Western Australia v ACJ [2021] WASC 219 [32] (Fiannaca J) (ACJ).

7. The word 'unacceptable' connotes a balancing exercise that will take into account the nature of the risk (the commission of a serious offence, with serious consequences for the victim), the likelihood of the risk being realised and the serious consequences for an offender if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order).[27]

   [27] Hansen [No 2] [35]; GTR  [27].

8. In considering whether the court is satisfied that the offender is a high risk serious offender for the purposes of HRSO Act, s 7(1) and s 7(3) provide that the court must have regard to a number of factors:

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

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

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

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

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

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

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

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

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

   (j)any other relevant matter.

9. The effect of HRSO Act s 7(3)(j) is that the list of matters to be considered by the court is not limited by those otherwise delineated in the subsection.[28]

   [28] The State of Western Australia v Colbung [No 2] [2023] WASC 197 [21] (McGrath J) (Colbung).

10. In considering whether it is satisfied as required by HRSO Act s 7(1), s 7(4) adds that the court must disregard the possibility that the offender might temporarily be prevented from committing a serious offence by imprisonment, remand in custody or the imposition of bail conditions.

11. If the court is satisfied that the offender is a high risk serious offender, the court 'must' then make either a continuing detention order or a supervision order; there is no discretion.[29]  However, the discretion to choose between two types of order 'preserves the basic principle of justice that detention in the custody of the State should only be ordered as a matter of last resort'.[30] 

    [29] HRSO Act s 48(1); Garlett [30], [70], [229].

    [30] Garlett [229].

12. In deciding which of these two orders to make, the 'paramount consideration is to be the need to ensure adequate protection of the community'.[31]  That requirement does not exclude other considerations.[32]  The 'curtailment of liberty must be no greater than is necessary adequately to protect the community from the demonstrated unacceptable risk of harm to the community'.[33]

    [31] HRSO Act s 48(2).

    [32] Garlett [106], citing ACJ [32].

    [33] Garlett [55], also [85], [106]; ACJ [32]; The State of Western Australia v Patrick [No 5] [2022] WASC 61 [56] (Derrick J).

13. A continuing detention order in relation to an offender is an order that the offender be detained in custody for an indefinite term for control, care, or treatment.  It has effect in accordance with its terms from the time the order is made until rescinded by a further order of the court.[34]

    [34] HRSO Act s 26.

14. A supervision order in relation to an offender is an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate, in accordance with HRSO Act s 30. It has effect in accordance with its terms from a date stated in the order and for a period stated in the order. The date from which a supervision order has effect must not be earlier than 21 days after the date the order is made unless the court is satisfied that the implementation of the order from an earlier date is practically feasible.[35]

    [35] HRSO Act s 27.

15. A court cannot make a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made.  The onus of proving this is on the offender.[36]  The phrase 'will substantially comply with' should be given its ordinary meaning, consistent with the purposes of the legislation and the general conditions of a supervision order, the overall object of which is to achieve the adequate protection of the community by appropriate management and mitigation of the unacceptable risk that the offender will commit a serious offence.[37]

    [36] HRSO Act s 29.

    [37] Colbung [31].

16. The question of what constitutes 'substantial compliance' and whether the offender will 'substantially comply' are matters of judgment.[38]  They require consideration of all the circumstances, both personal to the offender and external, which will affect them.  External circumstances include the conditions of the supervision order, the available means to monitor, supervise and treat them, and any pro‑social support available to them.[39]

    [38] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52] (Fiannaca J).

    [39] Garlett [103]; ACJ [416].

1. Factors set out in HRSO Act s 7

1. I now turn to the matters relevant to determining whether or not Mr Miller is a high risk serious offender pursuant to HRSO Act s 7. I will do so by considering the evidence in the context of the factors under HRSO Act s7(3). I have reordered those factors into a more logical sequence.

Mr Miller's antecedents - s 7(3)(g)

1. Dr Riordan begins her recount of Mr Miler's background with the observation that his 'early growth and development is best characterised as one of cumulative disadvantage resulting from multiple and pervasive adverse childhood experiences across all critical periods of development'.[40]

   [40] Dr Riordan's 2024 Report, par 13 (BM 477).

2. Mr Miller was born in Kalgoorlie and is the only child to the union of his biological parents. There was violence between his parents who separated when he was around the age of 5.  His mother re-partnered.  Both his mother and stepfather consumed alcohol to problematic levels.  While in their care, he lived transiently between Kalgoorlie, Fremantle and Collie.

3. At the age of 7, Mr Miller was taken into the care of the State and placed at Roelands Mission near Bunbury.  There he was cared for by a couple whom to this day he views as parental figures, speaking positively of the care they provided to him.  I will refer to them as his Foster Parents.  He was in their care for around four years.  Whilst at Roelands Mission, he was subjected to sexual abuse by others, the details of which are documented in the materials before the court.

4. When the Mission closed, the Foster Parents moved to Carnarvon.  He was not permitted by the State to go with them due to a shift in government policy at the time based on the view that it was inappropriate for Aboriginal children to be cared for by non‑Aboriginal people.  Rather, he was placed with an Aboriginal family in Bunbury.  This placement was initially positive and supportive.  However, the family subsequently moved to Esperance in circumstances which led to Mr Miller beginning to engage in criminal and anti-social behaviour.    

5. Mr Miller was ultimately moved to a State-run boys' facility in Kalgoorlie.  He immediately left that place and went to live with his father whom he had not seen since the age of 5 and who had other children by that stage.  Mr Miller told Dr Riordan that his father treated him 'like shit', and was physically violent towards him.  He described to Dr Riordan 'a chaotic, unsupervised and violent lifestyle in the care of his father, noting that he would use drugs and alcohol with extended family, become involved in physical altercations with his uncle and was rarely punished for his actions'.[41]  During this time, his father sent him for 6 months to participate in cultural initiation, which, to his credit, he completed.

   [41] Dr Riordan's 2024 Report, par 19 (BM 479).

1. Mr Miller attended a number of different primary schools.  His most stable period of primary education was whilst he was at Roelands.  He was enrolled in high school in Kalgoorlie, where he was subject to racial based bullying and peer victimisation.  He was not provided with any family support or encouragement for his education and ultimately left (or was expelled) part way through year 9.  He reports ongoing problems with literacy due to his limited education.

2. Between when he was 14 (1987) and 18 (1991) he had regular appearances in the Children's Court. 

3. Mr Miller has been employed from time to time in a number of occupations including fencing, lamb tailing, professional shooting and construction.  He was unemployed for the 12 years prior to his most recent period of incarceration.

4. As to his sexual development, Mr Miller commenced masturbating at the age of 13 and first had sexual intercourse at the age of 14.  He disclosed at least daily masturbation both in the community and in prison.  He is a frequent consumer of pornography, including at times deviant and violent material.  Dr Hall reports him as exhibiting an impersonal and casual attitude of sexual relationships, something also evident from the information he provided to Dr Riordan.  Mr Miller described engaging in risky sexual behaviours such as unprotected casual sex and had consequently contacted several sexually transmitted diseases. 

5. Mr Miller has had six relationships of significance.  The first was as a teenager, which lasted around two years.

6. The second commenced when he was 22, with a partner who was then aged 14.  The relationship was sexual and they lived together for between two and three years.  During this period she miscarried his child. 

7. The third relationship commenced soon after the second one ended, and lasted a year.  He has a son, from this relationship, whom he looked after as a child at one stage.  They have contract from time to time.

8. The fourth relationship was with a woman who lived in Port or South Hedland.  This relationship lasted about four years. 

9. Dr Riordan reports that, in discussing the quality and tenor of these early intimate relationships, Mr Miller admitted that they were characterised by verbal abuse and physical aggression, which was facilitated and exacerbated by his level of alcohol intoxication.  

10. The fifth relationship was with the victim of his first sexual offending.  He was 32 and she 14 when the relationship commenced.  Again this relationship was marred with physical violence, resulting in two convictions for aggravated assault occasioning bodily harm.  They have a daughter together who is now 19 or 20.  Mr Miller reports some ongoing contract with her, more so in recent times.

11. Following Mr Miller's release from prison, he re-ignited his intimate relationship with his second partner.  During that relationship, there was an incident which has significantly impacted Mr Miller.  Mr Miller went on a hunting trip with an 8‑year‑old daughter of this partner.  Tragically, their vehicle broke down and the daughter died in his arms from dehydration.  The relationship did not survive this incident.

12. The sixth relationship began on his release from prison in 2019, when he was homeless on the streets of Perth and Fremantle.  This relationship was characterised by the consumption of large quantities of methylamphetamines. 

13. Mr Miller also had another short-term relationship in which he fathered another son.  His son died at around 18 months of age from a seizure. 

14. Mr Miller is currently single.

15. In terms of social supports, Mr Miller reports that he has no real friends.  This is reflected in his prison records, which suggest that he has only had one social visit being from the Foster Parents.

16. Mr Miller's mother passed away some time ago whilst he was in prison.  He was unable to attend the funeral.  Mr Miller's father has health issues, and Mr Miller does not want to reconnect with him. 

17. Mr Miller is in poor physical health.  Prison based medical records indicate that he suffers from a range of co-occurring chronic health conditions including hypertension, asthma, dyslipidaemia (unhealthy levels of lipids in his blood), urethral stricture (narrowing of the urethra), sciatica (lower back pain), stable angina, ischaemic heart disease, obstructive sleep apnoea and type 2 diabetes.[42]  Mr Miller's cardiac health is of particular concern to him.  He has been involved in numerous accidents and incidents throughout his life that resulted in several incidents of loss of consciousness due to acute head injuries.  He reports chronic debilitating back pain and arthritis in one of his knees.  

    [42] Dr Riordan's 2024 Report, par 45 (BM 486).

18. As to his history of substance abuse, Mr Miller remembers being introduced to alcohol and cannabis at 12 or 13, recalling that he would use these substances with his uncles, aunts and occasionally his father.  Mr Miller commented to Dr Riordan that his use and dependency was normalised by the actions of those around him.  By the age of 17, he developed an alcohol dependency that he was not able to afford.  He would consume methylated spirits, from which he suffered adverse side effects.  He was able to cease the use of alcohol between 2007 and 2021.  However, he would abuse cannabis and prescription medications whenever he was out of prison.  Mr Miller also regularly used solvents from the age of 14.

19. Mr Miller tried using methylamphetamine in the early 2000s.  He ceased for many years recommencing in around 2019 at which time he was injecting seven to eight points a day.  Mr Miller told Dr Hall that following each release into the community between 2019 and 2021, he quickly relapsed to methylamphetamine use.  He said that when last released he was living with an aunty in Geraldton.  He said that due to the COVID pandemic and border closures, methylamphetamine was hard to obtain and when it was available it was heavily cut and expensive.  He said that because at that time he had no interest in not using anything, he made the decision to resume using alcohol.

20. There is some more up to date information as to Mr Miller's personal circumstances in the materials recently provided to the court.  I will deal with this information later in these reasons.

Mr Miller's criminal record - s 7(3)(g)

1. In relation to HRSO Act s 7(3)(g), in Colbung McGrath J observed:[43]

   While s 7(3)(g) of the HRSO Act provides that the Court must have regard to the offender's criminal record in deciding whether a person is a serious danger to the community, the mere fact that a person has committed previous offences does not necessarily mean that there is an unacceptable risk that the person would commit a serious offence in the future. The relevance of a prior criminal record would depend on the nature of the offences committed, the number of offences, and the period of time over which they occurred. However, past behaviour is often a good indicator of future conduct.

   I agree with this observation.

   [43] Colbung [22].

2. Mr Miller's offending only involves offences committed in Western Australia. I begin with the offending that may constitute serious offences under HRSO Act s 5 and sch 1, and then consider his other offending.

Offences that constitute serious offences under the HRSO Act

1. On 24 October 2022, Mr Miller was sentenced in the District Court for one count of sexual penetration of a child under the age of 13 contrary to CC s 320(2). It is this offence for which Mr Miller was serving a term of imprisonment when the Chief Justice imposed the interim detention order.

2. The victim of that offence was a four-year-old girl.  Mr Miller knew her because he was a friend of her mother.  On 24 August 2021, Mr Miller visited the house the girl shared with her mother.  He was intoxicated.  Mr Miller was left alone with the victim.  He grabbed her and took her into the toilet, where he took off her nightdress. Mr Miller removed his penis from his pants and urinated.  Before putting his penis back in his pants, Mr Miller removed the victim's underwear.  He engaged in cunnilingus, licking her vagina and anus area. After this, he kissed her on the face and told her it was 'a secret'.  The victim's mother caught Mr Miller and the victim coming out of the toilet after she had heard the victim crying.  The judge imposed an immediate term of imprisonment of 2 years and 10 months.

3. On 17 September 2014, Mr Miller was sentenced in the District Court for one count of sexual penetration without consent contrary to CC s 325.

4. In April 2013, Mr Miller invited the victim, a 16-year-old girl who was known to him, to his house.  Mr Miller supplied the victim with alcohol.  The sentencing judge found that in the days leading up to the offence, Mr Miller demonstrated a sexual interest in the victim, and that he actively arranged to have her invited to the house, before supplying her with alcohol to facilitate his engaging in sexual activity with her.  After the victim fell asleep in the front lounge area of the house, Mr Miller moved her to his bedroom.  She awoke to Mr Miller sexually penetrating her, having pulled her pants down.  The victim on more than one occasion told Mr Miller to stop and made attempts to push him away.  He ignored her pleas and continued to have intercourse with her. The judge imposed an immediate term of imprisonment of 5 years for the offence.

5. On 12 January 2006, Mr Miller was sentenced in the District Court for one count of having a sexual relationship with a child under the age of 16 contrary to CC s 321A(3).

6. Mr Miller was 32 years old at the time of the offending and the victim was a 14-year-old girl.  Between May and August 2005 Mr Miller and the victim engaged in sexual intercourse on numerous occasions.  While the sexual relationship was consensual, as the sentencing judge told Mr Miller:

   You knew her age and you knew you were a lot older … and in that sense you have exploited her immaturity and her inexperience, however consensual the acts might have been or might at least have seemed to you have been.

   The judge imposed an immediate term of imprisonment of 15 months for the offence.

Offences that are not 'serious offences'

1. Mr Miller has also committed a number of offences that are not characterised as 'serious offences'.  Offences of other types may be relevant in assessing the risk of serious offending being committed in the future because other offences may be connected to behaviour which has the real potential to lead to serious offending.[44]

   [44] Colbung [8]; Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246 [10] (Hall J).

2. On 7 April 2020 and further on 23 September 2023, Mr Miller was sentenced in the Magistrates Court for two counts of failing to comply with reporting obligations contrary to Community Protection (Offender Reporting) Act 2004 (WA) (CPOR Act) s 63(1). Mr Miller failed to attend a scheduled meeting with police in both instances. The magistrate imposed a fine of $800 on the first instance and $850 on the second.

3. On 2 April 2020, Mr Miller was sentenced in the Magistrates Court for one count of being armed or pretending to be armed in a way that may cause fear contrary to CC s 68(1) and one count of assault occasioning bodily harm contrary to CC s 317(1). This offending involved chasing down the victim while wielding a hammer. Mr Miller struck the victim with the hammer numerous times. The magistrate imposed an immediate term of imprisonment of 12 months.

4. On 17 September 2019, Mr Miller was sentenced in the Magistrates Court for one count of failing to comply with reporting obligations contrary to CPOR Act s 63(1).  Mr Miller failed to attend a meeting with the Sex Offender Management Squad.  The magistrate imposed a 3 month conditional release order with a $200 undertaking.

5. On 15 August 2018, Mr Miller was sentenced in the Magistrates Court for one count of being armed or pretending to be armed in a way that may cause fear contrary to CC s 68(1) and one count of assault occasioning in bodily harm contrary to CC s 317(1). The victim was Mr Miller's cellmate. The offending involved striking with a closed fist, choke holding, brandishing knives and striking with a saucepan. The magistrate imposed an immediate term of imprisonment of 5 months.

6. On 6 January 2012, Mr Miller was sentenced in the Magistrates Court for three counts of unlicenced possession of a firearm/ammunition contrary to Firearms Act 1973 (WA) s 19(1)(c). Mr Miller possessed a barrel and receiver from a Stirling 22 Magnum rifle bolt repeater and 26 rounds of ammunition. The magistrate imposed three fines totalling $2,000.

7. On 22 October 2009, Mr Miller was sentenced in the Magistrates Court for two counts of aggravated assault occasioning bodily harm contrary to CC s 317(1). The victim of this offending was Mr Miller's then partner. Mr Miller punched her jaw, pulled her by the hair to the ground, struck her in the back of the head with a hammer and threatened her life. Further, Mr Miller hit the victim with a wheel brace, struck her and kicked her. The magistrate imposed an immediate term of imprisonment of 8 months.

8. On 5 August 2009, Mr Miller was sentenced in the Magistrates Court for one count of aggravated assault occasioning bodily harm, contrary to CC s 317(1). The offending involved Mr Miller striking a male victim with a spanner. Mr Miller also threw the spanner as the victim ran away, causing an open wound on the back of his head to bleed profusely. The magistrate imposed a fine of $600.

9. On 30 May 2008, Mr Miller was sentenced in the Magistrates Court for two counts of failing to comply with reporting obligations contrary to CPOR Act s 63(1).  In June 2007, Mr Miller travelled to the Northern Territory and resided there for a period of 11 months, failing to notify police of his departure from and return to Western Australia.  Further, Mr Miller was served a copy of the Notice of Reporting Obligations requiring him to report to police, which he failed to do.  The magistrate imposed a 6 month conditional release order with a $500 undertaking.

10. Mr Miller also has numerous convictions for driving offences, failing to comply with police orders, wilfully misleading police, disorderly conduct, breach offences, assault, stealing, liquor consumption on community land, disorderly fighting, drug offences, damage, weapons possession, break and enter, resisting arrest and assault to resist arrest.

Whether or not there is a pattern of offending behaviour by the respondent - s 7(3)(d)

1. A 'pattern', as it pertains to behaviour, is a recurrent way of acting by an individual or group towards a given object or in a given situation.[45]

   [45] The State of Western Australia v AB [No 3] [2022] WASC 126 [128] (Strk J).

2. I discern three patterns of offending behaviour from Mr Miller's criminal record.

3. The first is a general pattern of disregard for the law.  Since he turned 18 in July 1991 he has committed just over 100 offences.  This follows a significant history of offending as a child.  The frequency with which he offends is made more acute once it is appreciated that Mr Miller has spent just under half of his adult life in prison.[46]  As set out in the preceding section the range of offences is broad.  A recurring theme in this pattern is that his offending has been associated with his, as well as others', use of alcohol.[47]  Another recurring theme is a tendency to resort to violence when he is angry. 

   [46] Dr Hall's 2024 Report, par 23 (BM 452).

   [47] Dr Hall's 2024 Report, par 88 (BM 464).

4. The second pattern is that he does not appear to take his offending reporting obligations seriously.  There are breaches of his reporting obligations in 2007, 2009, 2019, 2020 and 2021. 

5. The third is a more specific pattern.  This is of offending in a sexual nature against young females known to him. Dr Hall describes the pattern in the following terms:[48]

   Mr Miller's history of sexual violence involved three separate offences spanning 16 years, in which he undertook penetrative acts against young females between the ages of four and sixteen.  Each victim was known to him prior to him offending against them.  There was an escalation from exploitative to predatory behaviour, and eventually a brazen offence against a small child.  Although Mr Miller has the capacity for serious violence when angry he has not thus far utilised significant violence in order to further the commission of a sexual act.  He does not appear to have any deviant sexual interests and although his offending behaviour occurred in contexts where victims were entitled to feel and be safe there was no evidence of behaviour that one could describe as grooming.

   There is relatively little reliable information about Mr Miller's sexual appetites given that he is somewhat guarded on the subject and denies some of the offences.  The information that is available, however, suggests a callous and impersonal attitude to sexual relationships.  Mr Miller's sexual offending, as well as violent offending that is not deemed 'serious' as strictly defined by the High Risk Serious Offenders Act 2020, has occurred as part of a wider repertoire of the violation of the rights of others to meet his immediate needs.

   Mr Miller's offending has been associated with his, as well as others', use of alcohol.  There are also themes of sexual entitlement and aggression toward women.  Mr Miller's 2021 offence could arguably be considered an offence as much against the victim's mother as it was against the victim.  That is, Mr Miller's victim's mother removed herself to breastfeed upon his arrival.  Mr Miller may well have attended the house with the expectation of sexual activity with the victim's mother, only to be frustrated by her leaving the room to breastfeed.

   [48] Dr Hall's 2024 Report, pars 86 - 88 (BM 464 - 465).

6. Dr Riordan describes the pattern evident in Mr Miller's offending in more detail:[49]

   Mr Miller presents with a chronic history of perpetrating violence across relationships, context and situations.  He presents with a pattern of using both instrumental and reactive violence across intimate, family and kinship, peer and other relationships to meet his needs, express or discharge his emotional states and assert his dominance.  His pattern of violence is underpinned by a range of distal static factors related to cumulative disadvantage from Mr Miller's multiple adverse early childhood experiences that have spanned the full spectrum of harm across all critical periods of development.  It is likely that Mr Miller was prenatally exposed to alcohol at unknown levels, affecting his neurological development.  He has experienced multiple disrupted attachment relationships with his mother, and two sets of foster parents, while sharing an emotionally invalidating and abusive relationship with his father, resulting in a disorganised attachment relationship with this man.  These early life experiences have contributed to an insecure, unpredictable and volatile base of support and has occurred within a wider family and kinship system that has role modelled substance, and violence.  Mr Miller was witness to parental substance use and violence from a very young age.  While he was afforded periods of stability and care when placed with Mr and Ms Moyle and the Wallam family, these positive attachment experiences were undermined by him being inexplicitly removed from their care due to government policy changes, further, Mr Miller reported being the victim of sexual abuse while residing in Roelands Village, thereby undermining his sense of safety even when placed in a family unit within which he gained a sense of belonging.  Mr Miller has therefore experienced chronic and recurrent rejection and perceived abandonment from all primary care providers, the totality of which has undermined his psychosocial, emotional and moral development, and contributed to the development of an anti-social personality structure.  Contextually, Mr Miller's early growth and development occurred within community, family and social contexts that normalised, condoned, and encouraged the use of violence to meet needs, express emotional states, resolve conflict, have fun, and assert power and dominance.  Further, Mr Miller appears to have developed a reliance on sex and sexual behaviour as a form of self-soothing, to assist him to manage life stressors, assert his dominance as a man and regulate his emotional states.

Efforts to address the cause or causes of offending behaviour, and their outcome - s 7(3)(e), (f)

[49] Dr Riordan's 2024 Report, par 104 (BM 499).

1. I am required to consider any efforts by Mr Miller to address the cause or causes of his offending behaviour, including whether he has participated in any rehabilitation program.  I am also required to consider whether or not Mr Miller's participation in any rehabilitation programme has had appositive effect on him. 

2. On 20 June 2006, whilst in prison for his first sexual offence, Mr Miller was denied parole due to his risk of reoffending.

3. In 2010, Mr Miller completed a Cognitive Brief Intervention Program.  The completion report noted some gains in some areas including self‑control and impulsivity, but noted a lack of understanding and improvement in perspective‑taking, especially in the area of the victim's perspective.

4. Between August 2015 and January 2016 Mr Miller completed a Sex Offending Deniers' Program at Bunbury Regional Prison.  The factors that were identified at that time as placing him at risk included impulsivity, low self‑esteem, problems with self‑regulation, and coping strategies that alternated between using violence and being avoidant, the latter involving him seeking out casual sex when experiencing relationship difficulties.  He formulated a risk management plan that included not spending time around young people, remaining actively engaged in fixing up cars and developing a professional support network including a GP and counselling services. 

5. On 5 August 2017, whilst serving a prison term for his second sexual offence, Mr Miller was again denied parole.  On that occasion the Prisoners Review Board (Board) cited his poor response to previous community supervision orders with three periods of community supervision either suspended or cancelled.  This suggested to the  Board an unwillingness or inability to comply with directions.

6. On 23 October 2018, Mr Miller was again denied parole.  The Board noted that he had incurred an additional conviction for assault whilst in prison, indicating an additional requirement for treatment for violent offending.

7. On 3 August 2020, Mr Miller was denied parole, this being in relation to a term of imprisonment for assault occasioning bodily harm which involved assaulting someone with a hammer.

8. On 16 January 2023, during his imprisonment for the most recent sexual offending, Mr Miller was again denied parole.  The Board cited unmet treatment needs and a release plan that did not address them.  It was also noted that he had no accommodation and demonstrated a poor response to previous community supervision.

9. On 23 May 2024, the Board placed Mr Miller on a Post Sentence Supervision Order (PSSO).  I will address the PSSO in more detail at [134] - [136]. 

10. In summary, Dr Hall observes that Mr Miller's response to both deterrence and supervision has been poor:[50]

    Mr Miller has had over 35 prior sentencing occasions.  He has been dealt with by way of fines, community‑based orders and imprisonment, none of which have proved a deterrence with Mr Miller continuing to regularly offend.  Mr Miller has spent just under half of his adult life imprisoned.  Mr Miller's offending only reduces when he is in prison however even then he has still incurred criminal charges for violent offending.

    Mr Miller's response to supervision has been poor.  He has convictions of breach of bail, breach of suspended sentence of imprisonment, and failed to comply with reporting obligations.  He has offended whilst on parole and has offended whilst a reportable offender.  His parole was cancelled in 1994.  It was cancelled in 2002 for failing to comply with conditions, and cancelled in 2005 for re‑offending.  In June 2007, whilst a reportable offender, Mr Miller left Western Australia and resided in Alice Springs for 11 months, returning to Warburton in May 2008.  He had not notified police of his departure.

Report prepared under HRSO Act s 74 - s 7(3)(a)

[50] Dr Hall's 2024 Report, par 24 (BM 452 - 453).

1. I am required to consider any report prepared under HRSO Act s 74 for the hearing of the Application and the extent to which the respondent cooperated in the examination required by that section. I have the following reports:

   (a)Dr Hall's 2024 Report, Dr Hall's First Addendum Report and Dr Hall's Second Addendum Report; and

   (b)Dr Riordan's 2024 Report, Dr Riordan's First Addendum Report and Dr Riordan's Second Addendum Report.

   The reports of Dr Hall and Dr Riordan each address much of the information I have summarised so far.  In this section, I focus more on their assessments and opinions.

Dr Hall's Reports

1. In terms of Mr Miller's history in relation to issues of emotional and behavioural regulation, Dr Hall noted that he had a long history of anger issues impacting on both his offending and relationships. When interviewed, Mr Miller 'openly admitted that he had significant anger problems'.[51]  He said that he often reacted very quickly and could sometimes lose control of his anger, though he usually settled down quickly.

   [51] Dr Hall's 2024 Report, par 54 (BM 457).

2. Dr Hall noted that in a psychological pre-sentence report prepared by Julie Hasson in July 2014, it was reported that Mr Miller was heterosexual, denied a sexual interest in children, denied unusual or atypical sexuality practices and denied any fetishist interest.  Dr Hall also noted that during sexual offender deniers' programs, he did not demonstrate any sexually deviant attitudes or beliefs.  No deviant sexual interest in children was elicited during Dr Hall's assessment.

3. Dr Hall diagnosed Mr Miller with an antisocial personality disorder, with secondary diagnoses of a substance misuse disorder and post-traumatic stress disorder (PTSD).  It is instructive to set out the basis for each diagnosis:[52]

   Mr Miller has a history of early behavioural problems including stealing, truanting, cruelty to animals, and substance use, prior to the age of 15, that are consistent with the presence of conduct disorder at that time.  As an adult he has exhibited consistent failure to conform to laws and social norms with frequent criminal offending and has exhibited a reckless disregard for the safety of himself and others.  He has also demonstrated a failure to accept responsibility for his own conduct and has problems with impulsivity, aggression, and irritability.  He also lacks empathy.  The above is consistent with the presence of antisocial personality disorder.

   Mr Miller has a history of using alcohol and illicit substances to his detriment despite being aware of the negative effects and making efforts to desist at various times.  His use of such substances has been associated with considerable harm.  He qualifies for a diagnosis of substance misuse disorder, albeit one that is currently in remission in the custodial setting.

   Mr Miller has a previous history of experiencing anxiety and low mood.  There is a history of what appears to have been fulminant mental health episode in the context of cessation of alcohol in 2009.  It is difficult to retrospectively assess whether this had the quality of a major depressive episode or the onset of panic attacks.  In any event, it responded to treatment.  Periods of anxiety, possibly approximating panic attacks, have persisted and may be occurring in the context of a post‑traumatic syndrome such as post‑traumatic stress disorder.  He experienced significant childhood trauma as well as a distressing event in 2012 when a child in his care died from dehydration and has recurrent intrusive and distressing memories in relation to those events, for which his description impresses as genuine.  He experiences a level of agitation and anxiety that he attributes to those events and avoids triggers related to the events.  Although the lack of collateral information relating to contemporaneous mental health observations and the less than ideal quality of his self‑report limit diagnostic confidence, it would appear that Mr Miller does suffer from post‑traumatic stress disorder.  As to the diagnosis of bipolar disorder that was made by a general practitioner in 2009, there does not appear to be any contemporaneous corroboration for the diagnosis, nor is there any evidence of behaviour, either previously recorded or currently described by Mr Miller, that would support a diagnosis of bipolar disorder.

   [52] Dr Hall's 2024 Report, pars 83 - 85 (BM 463 - 464).

4. Dr Hall uses a number of risk assessment tools. 

5. The first is the Static-99, which is an actuarial assessment.  Using this tool, based on Mr Miller's history and antecedents, he was assessed as being in a moderate to high risk of reoffending by committing sexual offences.[53]

   [53] Dr Hall's 2024 Report, par 94 (BM 46).

6. The second is the Hare Psychopathy Checklist - Revised.  On this assessment, Dr Hall concludes:[54]

   Overall, Mr Miller's profile reflected the presence of many of the features of psychopathy, weighted toward the antisocial and affective aspects, and consistent with the diagnosis of antisocial personality disorder.  The implications with respect to his risk are the profile's reflection of his readiness to violate the rights of others to meet his emotional immediate needs, his lack of empathy, and his unstable lifestyle.

   [54] Dr Hall's 2024 Report, par 100 (BM 467).

7. The third is Risk for Sexual Violence Protocol.  From this protocol, Dr Hall noted the following risk factors:[55]

   [55] Dr Hall's 2024 Report, pars 104 - 111 (BM 467 - 469).

   (a)an escalation of sexual violence;

   (b)extreme minimalization or denial of sexual violence;

   (c)problems with stress or coping;

   (d)problems with substance abuse;

   (e)problems with intimate relationships;

   (f)problems with non-intimate relationships;

   (g)problems with employment;

   (h)problems with planning; and

   (i)problems with treatment.

   These risk factors placed Mr Miller at a moderate to high risk of committing a serious sexual offence without intervention.

8. The fourth is Historical Clinical Risk Management 20 - version 3. This tool identified similar risk factors to those which I have set out at [98]. Dr Hall concludes from this tool that Mr Miller is considered to be at high risk of committing a serious offence of a violent nature (for example, grievous bodily harm) without intervention.[56]

   [56] Dr Hall's 2024 Report, pars 118 - 121 (BM 470 - 471).

9. Dr Hall identifies two sets of scenarios in which it is likely that Mr Miller would reoffend which I will come back to at [114] and [115].

10. In summary, Dr Hall opines that Mr Miller is at high risk of committing a serious offence of a violent nature and at moderate to high risk of committing a serious offence of a sexual nature if not subject to a restriction order.  The key factors contributing to this risk are:[57]

    (a)prior history of violent and sexual offending that has been both chronic and escalating;

    (b)antisocial personality disorder with lack of empathy, aggressiveness, poor behaviour controls and attitudes that support violence;

    (c)unaddressed substance abuse misuse with vulnerability to rapid relapse;

    (d)lack of prosocial personal support;

    (e)previous poor response to supervision; and

    (f)an unstable lifestyle.

    [57] Dr Hall's 2024 Report, par 124 (BM 472).

11. Dr Hall identified some additional conditions, over and above the standard conditions, which may ensure that the community is adequately protected.  I deal with these in pt 6.

12. In Dr Hall's First Addendum Report, he remains of the view that the respondent is at high risk of committing a serious offence of a violent nature and a moderate to high risk of committing a serious offence of a sexual nature. He reiterates the key factors contributing to this risk set out at [100].[58]

    [58] Dr Hall's First Addendum Report, pars 13 - 14 (BM 701).

13. In Dr Hall's Second Addendum Report, he observes in recent months 'some …subtle shifts both upward and downward in a number of risk factors for both sexual and non-sexual violence'.  He has slightly strengthened his view, finding that Mr Miller can be considered to be at 'high risk (not moderate to high risk) of committing a serious sexual offence, and at high risk of committing a serious violent offence, without specific interventions'.[59]

Dr Riordan's reports

[59] Dr Hall's Second Addendum Report, pars 33, 35 (BM TBD).

1. On initial assessment by Dr Riordan in late June and early July 2024, Mr Miller denied any signs or symptoms consistent with a major mental illness across the spectrum of psychotic or mood disorders.  Nor did he present with elevated levels of depression, anxiety or stress.  He was experiencing some stress in relation to his connection with kinship and family, in particular being able to connect with his daughter, attend family funerals and as to the possibility of GPS monitoring preventing him from being able to travel to country.[60]

   [60] Dr Riordan's 2024 Report, pars 52 - 55 (BM 488).

2. I have already mentioned Dr Riordan's analysis of the pattern of Mr Miller's prior offending ([80]).  In terms of future risks, she adds:[61]

   Mr Miller presents with a high level of sexual preoccupation and libido, which, when combined with his underdeveloped social skills and perception of himself as holding a superior position as a man with cultural leadership status, has contributed to him feeling entitled to have his sexual needs met, irrespective of the harm caused to the victim.  Mr Miller's pattern of sexual offending and his history of intimate relationships overtime clearly indicates that he possesses a deviant sexual interest in young and underage females.  His deviant sexual interests however appear more diffuse as opposed to targeted towards underage and young girls within a particular age range.  By his own admission he has an interest in consuming pornography that spans the spectrum of deviancy including watching depictions of sexual violence, sexual activity with animals, various kink based sexual behaviour and other forms of deviant sexual depictions.  Further, Mr Miller has expressed and demonstrated a sexual interest in adult or post pubescent women, seemingly preferring to satiate his high sex drive with numerous sexual encounters than limit his sexual behaviour to one victim or partner type.  Based upon the totality of the evidence reviewed, it is my opinion that Mr Miller does not fulfil the criteria for a Pedophillic Disorder as defined by the Diagnostic and Statistical Manual of Mental Disorders.

   Assessment reports and brief intervention programs completed over time have highlighted Mr Miller's limited capacity for perspective taking and victim empathy; traits that were also evident during the current assessment.  Indeed, Mr Miller expressed the view that he 'no longer feels anything', indicating that his empathy deficits transverse both the cognitive and affective components of concept.  While it is important to acknowledge that empathy (or lack thereof) is not associated with sexual recidivism and therefore the development of empathy, would not be considered a criminogenic treatment need per se.  It is important to understand the possible factors that underpin Mr Miller's empathy deficits.  While Mr Miller's childhood trauma history are distal factors that have undermined his psychosocial, emotional, and moral development, his empathy deficits are also likely to be a function of his cognitive distortions and offence supportive beliefs that view women and young or underage girls as sex objects.  Adhering to such cognitive distortions contributes to Mr Miller not perceiving his actions as harmful.  Indeed, where such beliefs guide behaviour, that is Mr Miller perceives that meeting his sexual needs is a positive or even benign behaviour, then it follows that there is no need for an empathic response.  From a treatment perspective, Mr Miller's cognitive distortions appear to precede any empathic response.  Therefore, it is the cognitive distortions or implicit theories that should form the focus of criminogenic intervention, as it is the rationalisations, justification and implicit theories that he holds about his sexually harmful and violent behaviour that serve to facilitate his ongoing offending behaviour when the contextual and situational factors allow this to occur.

   It should be noted that while Mr Miller's use of alcohol and other drugs increases his sex drive and impulsivity on occasions, he does not require the disinhibiting effects of substance intoxication to perpetrate acts of sexual harm or acts of violence towards intimate partners and others.  Indeed, Mr Miller disclosed that he has perpetrated most of his sexual and several offences while not affected by drugs and alcohol.

   [61] Dr Riordan's 2024 Report, pars 106 - 108 (BM 500 - 501).

3. Dr Riordan assessed Mr Miller's risk of reoffending using the STATIC-99R and STABLE-2007 assessment tools.  These tools placed him at an above average risk of being charged or convicted of another sexual offence.  Likewise, the STABLE-2007 tools placed him at a high risk.  More specifically:[62]

   Mr Miller was scored as High on the STABLE‑2007.  The most prominent dynamic risk factors identified from the STABLE‑2007 pertain to Mr Miller's high level of negative emotionality, high level of sexual preoccupation/sex drive, his use of sex as a form of coping, deviant sexual interest, difficulties with the quality and tenor of previous intimate relationships, and poor problem solving.  Less significant dynamic risk factors identified include lack of concern for others, some impulsivity, limited network of significant social influences, and associated history of social rejection and poor engagement with previous supervision.

   [62] Dr Riordan's 2024 Report, par 120 (BM 503).

4. Dr Riordan also assessed Mr Miller using the Violence Risk Scale.  The factors which, on that framework, place Mr Miller at a well above average risk of reoffending were:[63]

   [63] Dr Riordan's 2024 Report, pars 130 - 155 (BM 506 - 512).

   (a)that his first conviction for a violent offence against another person occurred at the age of 16;

   (b)his extensive and diverse criminal history as a youth;

   (c)the fact that he has perpetrated acts of violence across context, situations and relationships, commencing at an early age and persisting across his lifespan;

   (d)his poor history of compliance with release orders, community based dispositions, offender reporting requirements, parole and bail;

   (e)his highly unstable upbringing, charactered by the experiences of multiple adverse childhood experiences;

   (f)the fact that the use of violence appears to have become normalised for him;

   (g)his lack of remorse, guilt and/or empathy for his offending;

   (h)his reliance on anti-social and criminal behaviour to meet his needs over time, commencing in early childhood;

   (i)his tendency to gravitate towards anti-social peers;

   (j)his extensive history of interpersonal aggression across relationships, contexts and situations;

   (k)his poor emotional management skills across contexts and relationships;

   (l)his poor conduct in the prison setting, though this seems to have improved in recent times;

   (m)his use of weapons in the violence he has perpetrated over time;

   (n)his limited insight into how his pattern of problematic relationships and deficits in emotional management skills contribute to his use of violence;

   (o)the link between his use of alcohol and drugs and his violent behaviour over time and across relationships and contexts;

   (p)his inability to sustain long term intimate relationships;

   (q)his minimal community support;

   (r)his lack of suitable accommodation options;

   (s)his history of violent offending;

   (t)his tendency to be impulsive, though this seems to be reducing as he ages; and

   (u)his tendency to blame his victims and to believe that he is entitled to sex.

1. In summary, Dr Riordan concludes:[64]

   Imminence

   Mr Miller presents with a chronic risk of re‑offending of a violent nature.  He presents with a history of very limited success in being able to live in the community without resorting to violence, using substances, and engaging in further offending of an acquisitive, violent or sexual nature.  The imminence of scenario 1 would increase should Mr Miller reside within a small community where he is known, while the imminence of scenario 2, pertaining to intimate partner violence would significantly increase should Mr Miller cohabitate with an intimate partner.

   The presence of barriers to Mr Miller having his needs met, instability in his intimate relationship and real or perceived injustice, are likely to trigger negative emotional states and difficulties with frustration tolerance, exhausting his resources to cope, resulting in increased risk for future violence.

   Frequency/Duration

   With consideration of Mr Miller's offending history, his use of violence has continued unabated even, at times when detained in custodial settings.  Given the longevity of his criminal behaviour supervision, monitoring, regular and random urinalysis, engagement in employment or vocational training, and psychological counselling are necessary components for managing his risk for the foreseeable future.

   Likelihood

   Mr Miller is assessed as being at Well Above Average Risk for future reoffending of a violent nature.  He has also been assessed as at Above Average Risk for future reoffending of a sexual nature.  As such, the likelihood of him engaging in the offending behaviour described in the above scenarios is also considered to be Well Above Average, or high.

   [64] Dr Riordan's 2024 Report, pars 171 - 174 (BM 515).

2. For the purposes of preparing Dr Riordan's First Addendum Report, she repeated the risk assessment analysis undertaken for her first report. The results of this assessment mirrored those set out at [109].[65] 

   [65] Dr Riordan's First Addendum Report, par 110 (BM 729).

3. As mentioned, the most recent report from Dr Riordan was Dr Riordan's Second Addendum Report. The parts of this report documenting Mr Miller's engagement more generally with the rehabilitation processes fit more appropriately later in my reasons. As to Dr Riordan's forensic opinion, the risk assessment undertaken continued to come to the conclusions set out at [109].[66]

Propensity to commit serious offences in the future - s 7(3)(c)

[66] In particular:  Dr Riordan's Second Addendum Report, pars 123 - 131 (BM 762 - 764).

1. I am required to consider information indicating whether or not Mr Miller has a propensity to commit serious offences in the future.

2. In Garlett, Edelman J relevantly observed that the 'offending upon which the Court can place any weight must be relevant to establishing a pattern of behaviour, or a propensity, sufficiently proximate in time, showing a likelihood that the offender will commit the specified serious offence'.[67]

   [67] Garlett [222].

3. Dr Hall identifies two sets of scenarios in which it is likely that Mr Miller would reoffend.  The first is in relation to sexual offences:[68]

   Were Mr Miller to re‑offend sexually, the most likely scenario would be that of sexual penetration or attempted sexual penetration of a young female for the purpose of his own sexual gratification.  The victim would have reduced capacity to resist due to intoxication or age.  Whilst Mr Miller has the capacity for physical violence this has typically been undertaken in anger rather than being instrumental, and with his sexual offending he has not used significant violence in order to further the commission of the sexual act.  Rather, if he were to use serious physical violence it would be because the victim had angered him.  Nonetheless his capacity for violence indicates that there is a possibility that sexual violence could escalate to serious or life‑threatening violence.  It is difficult to estimate how soon Mr Miller might engage in sexual violence.  He would most likely engage in non‑sexual criminal activity beforehand and come to attention due to that.  If he were to relapse to substance use the time to sexual reoffending would likely be shorter.  Warning signs that might signal that the risk is increasing would be Mr Miller engaging in other criminal behaviour, exhibiting significant difficulty coping with stress, having a lack of meaningful activity, engaging in substance use, failing to report or failing to comply with obligations, losing or having no accommodation, and associating with antisocial peers.  The risk Mr Miller poses is chronic, however his physical health conditions suggest that his appetite for offending may diminish with age at a faster rate than for those without his health conditions.

   A less likely scenario would be that of Mr Miller re‑offending against a child.  He does not possess a specific sexual interest in children and as such he would not experience a drive or need to offend against the child for sexual gratification.  Rather, it would occur opportunistically and in the context of ready access to the child and/or substance use.  Mr Miller would most likely come to the attention of law enforcement for other reasons before he would re‑offend against a child.  A much less likely scenario is that Mr Miller would offend sexually against a male child.

   [68] Dr Hall's 2024 Report, pars 113 - 114 (BM 469 - 470).

4. The second scenario is one of violence:[69]

   Were Mr Miller to re‑offend violently the most likely scenario would be violence perpetrated against an adult male with whom Mr Miller was in conflict, felt angry with or felt offended or disrespected by.  He would most likely seek to leverage superiority in a conflict by the use of a weapon which would most likely be something that was close to hand.  He has difficulty with behavioural control and past acts suggest he has the potential to inflict quite serious or fatal injuries.  When engaging in violence warning signs that the risk of violence might be increasing include substance use, association with antisocial peers, having an unstructured lifestyle or being itinerant.  Mr Miller may engage in violence relatively soon (within 6‑12 months) after release depending on the circumstances in which he finds himself.  A less likely scenario would be violence against a domestic partner.  This is less likely only in the sense that he would need to acquire a partner first and may well come to attention for other adverse behaviour before doing so.  As previously described, there is some potential for Mr Miller to use violence against the victim of a sexual offence.  However, this would likely be in response to feeling angered by a victim rather than being instrumental to furthering the commission of the sexual act.

   [69] Dr Hall's 2024 Report, par 122 (BM 469 - 470).

5. Along similar lines, Dr Riordan identifies three scenarios for likely future offending by Mr Miller:[70]

   Scenario 1 - The most likely future offence will involve Mr Miller to behave in a threatening, intimidating, and violent manner towards an individual known to him that he perceives to have slighted him or his family, behaved in an inappropriate manner towards his intimate partner or in another way insulted or challenged him.  The use of alcohol or illicit substance use, and intoxication may increase the impulsivity of such an action.  The presence of a weapon in close proximity may facilitate its use, it is also possible that Mr Miller would carry a weapon with him for the purpose of protecting himself and use this to assault another individual.  It is more likely that in this scenario Mr Miller would use his fists to punch the victim.  This type of offence is likely to be impulsive and an act of reactive aggression driven by poor emotional and behavioural controls.

   Scenario 2 - Mr Miller assaults an intimate partner.  Precipitating factors to this scenario would likely relate to Mr Miller experiencing feelings of jealousy, mistrust and paranoia about the whereabouts, movements, intentions, or sexual behaviour of his intimate partner.  The use and misuse of alcohol and other substances would be salient factors in this regard, but not necessary to facilitate violence.  The presence of a weapon would escalate the level of violence used.  Such an offence is likely to occur in either a public or private space, and the presence of others is unlikely to be a deterrent to Mr Miller's use of violence.  In this scenario, the victim is likely to suffer physical injuries as a direct result of Mr Miller's actions.

   Scenario 3 - Mr Miller will engage in an act of sexually harmful and/or abusive behaviour directed towards a young or underage girl, or casual sexual acquaintance.  This scenario is more likely to occur in the context of Mr Miller being unable to meet his sexual needs, either due to him not being able to establish an intimate relationship or his sexual advances being declined by a casual sexual partner.  The use of alcohol and other drugs by Mr Miller and any potential victim is likely to facilitate such an assault.  In the case of acute intoxication of the victim, it is possible that Mr Miller will engage in unwanted sexual behaviour with the victim while she is asleep or unconscious because of intoxication.  Within an intimate relationship, alcohol or other drug intoxication may facilitate forceful sexual encounters, sexual encounters while asleep or unconscious and/or involvement in sexual acts, such as anal sex, for which the victim has not provided consent.  In this scenario, the victim is likely to suffer physical and psychological harm.

   [70] Dr Riordan's 2024 Report, pars 167 - 169 (BM 514 - 515).

6. Dr Riordan remained of this view in her First Addendum Report[71] and her Second Addendum Report.[72]

Other medical, psychiatric, psychological or other assessments - HRSO Act s 7(3)(b)

Historical assessments

[71] Dr Riordan's First Addendum Report, pars 102 - 106 (BM 728 - 729).

[72] Dr Riordan's Second Addendum Report, pars 118 - 122 (BM 762).

1. The historical assessments of the respondent have been summarised and taken into account by Dr Hall and Dr Riordan.  They do not require separate consideration.

Treatment option reports

1. The materials before the court include a series of reports by the department: 

   (a)Treatment Options Report dated 16 September 2024 (TOR);

   (b)CSA Report;

   (c )two Update Community Supervision Assessments dated 3 May 2025 and 17 February 2025;

   (d)two Addendum Treatment Options Reports dated 29 April 2025 and 30 January 2025; and

   (e)Addendum CSA Report.

   (Department Material).

2. The Departmental Material provides updated material as to Mr Miller's circumstances and his engagement with various rehabilitation options.  To this I add the observations of Dr Hall and Dr Riordan on these engagements.

3. Mr Miller is currently in the Bunbury Regional prison.  He has been periodically tested for substances, including alcohol, and all tests have been negative.  He is recorded to have had an argument with another prisoner with minimal physical contact on 10 October 2024.  On 24 January 2024 he was verbally abusive to a prison officer and threatened a female prison officer with physical violence.  Dr Hall comments that the circumstances of these incidents are consistent with Mr Miller's poor behavioural control in response to perceived provocation or feeling agitated.[73]  Dr Riordan makes a similar observation.[74]  However, Dr Riordan also notes that prison staff have documented positive accounts of the behaviour of the respondent and in the provision of support to other prisoners.[75]  There have been no prison charges, adverse notes or incidents in the past 6 months, indicating a period of stability.[76]  

   [73] Dr Hall's First Addendum Report, par 11 (BM 700).

   [74] Dr Riordan's First Addendum Report, par 30 (BM 712).

   [75] Dr Riordan's First Addendum Report, par 29 (BM 712).

   [76] Dr Riordan's Second Addendum Report, pars 45 - 46 (BM 745); transcript 12.8.25, pages 48 and 49 (Riordan).

4. A recurring theme across the more recent Departmental Material is that Mr Miller has been frustrated and agitated with the delays in the proceedings, and the difficulty in securing accommodation.  He is experiencing stress and uncertainty being in custody on the interim order.  This has led to symptoms of low mood and heightened anxiety.   Added to this, he is experiencing significant levels of stress with respect to his connection to family and kinship.  I will return to the issue of accommodation later in these reasons.   

5. However, some of these issues appear to have moderated in recent months.  For her Second Addendum Report, Dr Riordan interviewed Mr Miller on 31 July 2025.  Mr Miller reported to have experienced a period of protracted low mood and heightened anxiety since the adjournment of this hearing and the continuation of the interim detention order.  He also discussed the positive effect that his diagnosis of PTSD by Dr Hall during the psychiatric assessment completed for these proceedings has had on assisting him to understand and manage mental health and functioning.  This included being prescribed medication for the management of PTSD related insomnia, which has caused his nightmares and nocturnal flashbacks to cease, with a positive flow on effect to his mood and coping.  Ms Applin's evidence of her observations was to the same effect.[77]

   [77] Transcript 12.8.25, pages 41 - 42 (Applin).

6. It was also apparent from Dr Riordan's report that Mr Miller had rekindled his relationship with the mother of his daughter and had maintained contact and communication with his daughter.  Mr Miller asserted that maintaining contact with these two women has assisted to lift his mood, re-establish a sense of belonging to family and instil hope for the future.  He acknowledged that a cultural support plan would be an important feature of any potential release planning.[78]   

   [78] Dr Riordan's Second Addendum Report, pars 14 - 19 (BM 737 - 739).

7. As to Mr Miller's treatment needs, what emerges from the Department Material, coupled with the reports of Dr Hall and Dr Riordan, is that, in the words of the latter, he has a 'high density' of treatment needs.[79]  These needs are across four main domains.  In each case, there is a need to ensure that the intervention is appropriate to Mr Miller's Aboriginal cultural background to increase the prospect of successful engagement.  I have focussed on what would be available to Mr Miller were he to be released on a supervision order. 

   [79] Dr Riordan's 2024 Report, par 186 (BM 518); Dr Riordan's Second Addendum Report, par 135 (BM 765).

8. The first is for substance abuse, including alcohol and methylamphetamine.  Mr Miller participated in the Pathways Program at Bunbury Regional Prison over October and November 2024.  It was noted that he continually blamed his substance abuse on his PTSD, being homeless and being institutionalised.  When facilitators challenged his thinking in that regard, his level of participation decreased.  He was considered to have made minimal gains from that program.  If released to supervision, the department does not facilitate community-based substance use programs.  His Senior Community Corrections Officer (SCCO) would need to facilitate a referral to an externally contracted substance use service. 

9. The second is individual psychological counselling to address his issues that support violence, coping mechanisms, sexual offending, grief, past traumas including the death of a child in his care and his own childhood abuse.  In this regard, the respondent has been referred to the Forensic Psychological Intervention Team (FPIT).   He participated in an initial psychological counselling session on 1 May 2025 with Eliot Becker and has had ongoing counselling on a fortnightly basis.  He has now had six sessions with Mr Becker.  Mr Becker reports that Mr Miller has engaged positively with counselling and he appears to be making gains from the process.  When recently interviewed by Dr Riordan, Mr Miller spoke positively about his engagement with Mr Becker and was able to identify specific behavioural changes he has put in place in response. When giving evidence, Dr Riordan observed that as Mr Miller has sought our help to process his emotions in a different way, this was helpful to his emotional regulation, which in turn was a risk factor to substance use, which was in turn a precursor to other offending.[80] This counselling would continue with Mr Becker if Mr Miller was placed on a supervision order.[81] 

   [80] Transcript 12.8.25, page 47 (Riordan).

   [81] See generally: Transcript 12.8.25, page 30 (Applin), 43 - 44 (Cashmore); Dr Riordan's Second Addendum Report, pars 29 - 43 (BM 742 - 745).

10. In recent months, Mr Miller has been engaging in fortnightly sessions with a prison counsellor, Indiana Graham, from the Psychological Health Service (PHS) at Bunbury Regional Prison. He has had 8 sessions to date. He was referred to PHS due to stress relating to the HRSO Act process and for grief. There has been some discussion around his PTSD, the instability in his upbringing, and his experience as a member of the stolen generation. Distress tolerance and other coping strategies have also been discussed and implemented, with Mr Miller reporting engagement in distraction activities such as arts and crafts, attending his prison job with small motors, helping other inmates, and reaching out for support from others. Supportive counselling has been provided to address concerns he has for members of his family in the community, and to address his uncertainty about the upcoming HRSO decision and its impact on his future.[82]  Dr Hall observes that Mr Miller has continued to experience intermittent frustration and agitation in relation to the delays in the proceedings and the difficulty securing accommodation.[83] 

    [82] Dr Hall's Second Addendum Report, par 22.

    [83] Dr Hall's Second Addendum Report, par 23.

11. The third is engagement with individual or group based programs addressing his sexual offending.  In her Second Addendum report, Dr Riordan tells me that Mr Miller's recent experiences with group based treatment have been positive and he was receptive to a referral for further group based programs.[84]

    [84] Dr Riordan's Second Addendum Report, par 136.

12. The fourth is engagement with individual or group based programs addressing his violent offending.  There is a program called Not Our Way targeting criminogenic needs related to family violence offending for Aboriginal men.

The risk that, if Mr Miller were not subject to a restriction order, he would commit a serious offence - s 7(3)(h)

1. As mentioned, both Dr Hall ([103]) and Dr Riordan ([110]) are of the opinion that Mr Miller currently presents with and would present a high risk of committing serious offences of a violent or sexual nature in the future.

2. I agree.  The risk factors which I have set out above lead me to conclude that if, Mr Miller is not subject to a restriction order, there is a very real risk that he will commit a serious offence of a sexual nature, in particular towards a female he knows or has access to.  His high level of sexual preoccupation and libido, coupled with his willingness to violate the rights of others to meet his immediate needs, is of notable concern.  There is also a very real risk of him continuing to commit an offence of violence, especially whilst angry and/or under the influence of alcohol, and offences due to his failure to comply with his offender reporting obligations.

The need to protect members of the community from the risk of offending by Mr Miller - s 7(3)(i)

1. Following from the conclusion in [132] in my view, there is a clear need to protect members of the community from the risk of offending by the respondent, in particular, a young female he knows or has access to.

Other relevant matters - s 7(3)(j)

1. There is one further matter which is the PSSO which the Board placed on Mr Miller on 23 May 2024.  The conditions of the PSSO are as follows:[85]

   [85] BM 28.

   ·Not to consume alcohol.

   ·Not to use or be in possession of any illicit drug including cannabis.

   ·To advise you Community Corrections Officer of your residential address and not to change that address without the prior approval of the Community Corrections Officer.

   ·To attend programmes and counselling as directed.

   ·To attend random urinalysis for all illicit substances as directed by the Community Corrections Officer and provide a valid sample.

   ·To comply with the requirements of the Community Protection (Offender Reporting) Act 2004

   ·To have no direct or indirect contact with the victim

   ·To have no unsupervised contact with female children under 18 years of age.

   ·To submit to random breath testing as requested by Police.

1. The State says that the PSSO is not sufficient for two reasons.  Firstly, the PSSO is due to expire in June 2026, less than 12 months away and Dr Riordan recommends an order of at least 3 years duration from commencement.  Secondly, the conditions of the PSSO are not adequate to manage Mr Miller's risk in the community given the recommended conditions imposed by the experts.

2. As will be discussed in pt 6, securing appropriate accommodation is critical to managing the risk of serious offending which I have identified.  The PSSO does not address this issue and so is insufficient to manage the risks which I have identified.

1. Is Mr Miller a high risk serious offender?

1. Based the evidence before the court which I have set out so far in these reasons, I am satisfied, by acceptable and cogent evidence and to a high degree of probability, that there is an unacceptable risk that Mr Miller will commit a serious offence in the future, in the absence of any measure that would provide protection of the community against that risk.  The risk is unacceptable because the high likelihood that Mr Miller commits a serious offence, in particular against a young female he knows or has access to, with the serious consequences to such a victim, strongly outweighs his entitlement to be at liberty.  Dr Riordan observed that all the scenarios outlined at [116] are likely to cause significant psychological, sexual and physical harm to the victims.[86]  I agree.  This is a risk that, in my view, the community cannot tolerate.

   [86] Dr Riordan's First Addendum Report, par 106 (BM 729).

2. I am also satisfied on the same basis that it is necessary to make a restriction order in relation to Mr Miller to ensure adequate protection of the community.

3. So, I am satisfied that it is necessary to make a restriction order in relation to Mr Miller to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.  The State has thus satisfied the onus on it to satisfy the court that Mr Miller is a high risk serious offender.

1. What form of order should be made to ensure the adequate protection of the community?

1. Having been satisfied that Mr Miller is a high risk serious offender, I must then make either a continuing detention order or a supervision order.  I do, however, have a discretion as to which to impose.

2. To make this decision, I need to first determine the scope of the supervision order that could be made instead of continuing detention order. The standard conditions in HRSO Act s 30(2) would apply. Paragraph 30(2)(f) is a condition not to commit a 'serious' offence. I would broaden that to any offence that can be dealt with by way of a term of imprisonment. This would relevantly include an offence for possessing or accessing child exploitation material and any offence involving prohibited drugs.

3. There, in my view, are three key risk areas:  accommodation, substance abuse and sexual offending.

4. As to the first, I agree with the observation of Dr Riordan that 'securing suitable, stable and safe accommodation is the cornerstone of any risk management plan'.[87]    As accommodation is the fulcrum on which this decision ultimately turns, I will address the other key risk areas before coming back to accommodation.

   [87] Dr Riordan's First Addendum Report, par 116 (BM 730).

5. The second key risk area is substance abuse.   On the materials before the court, it would be necessary for there to be conditions:

   (a)prohibiting Mr Miller from consuming alcohol;

   (b)prohibiting him from entering licensed premises unless approved by a community corrections officer;

   (c)requiring him to submit to random breath testing for alcohol by a Police officer, with any positive result being a breach;

   (d)prohibiting him from using any prohibited drug as defined in the Misuse of Drugs Act 1981 (WA); and

   (e)requiring him to attend for urinalysis testing as directed by a community corrections officer and provide a valid sample for analysis for all prohibited drugs or a specific prohibited drug, with any positive result being a breach of the order.

6. Dr Hall also recommends that Mr Miller be prohibited from associating with people who are using alcohol or drugs.  However, Dr Riordan notes a caveat to this:[88]

   While it would be ideal to prohibit Mr Miller from associating with those who consume illicit substances, such a direction may isolate him from his wider family and kinship support system.  Isolation and loneliness have been emotional triggers for lapse and relapse into substance use previously for Mr Miller.  As such, reducing his association with cultural and family links who use illicit substances may have an unintended consequence of increasing his risk for lapse and relapse to substance use due to his poorly developed coping skills.

   [88] Dr Riordan's First Addendum Report, par 118 (BM 731).

7. In addition, there would need to be arrangements for Mr Miller to engage in community based substance abuse counselling, either individual or group based.  Both Ms Applin and Ms Cashmore gave evidence that there are substance abuse programs available in the community to which the department regularly refers people.  However, the decision to start this counselling would be done in consultation with Mr Becker to ensure that Mr Miller was ready to take on more intervention.  There was a concern not to overwhelm Mr Miller with interventions in the context of everything else he was required to do under an order.[89]  In addition, Mr Miller would see his community corrections officer two times a week.[90]

   [89] Transcript 12.8.25, page 47 (Riordan).

   [90] Transcript 12.8.25, page 39 - 40 (Applin).

8. The third key risk area is sexual offending, in particular against young females.  Dr Riordan suggests:[91]

   Mr Miller should not have unsupervised contact with females under the age of 16 years.

   Mr Miller's intimate relationships require close monitoring.  In this regard, Mr Miller should be required to disclose any new intimate relationship that he might establish.

   Mr Miller's electronic communication with any potential intimate partner should be monitored to ascertain the quality and tenor of the communication between Mr Miller and any potential intimate partner. Further, should Mr Miller commence an intimate relationship, the development of a safety plan with any potential victim is an important component of the risk management process. Mr Miller's SCCO would therefore require contact with any potential new intimate partner to ascertain collateral information about Mr Miller's behaviour and be made aware of potential early warning signs to escalating risk.

   Monitoring and inspection of Mr Miller's mobile phone and/ or other forms of access to the internet to monitor the type of material that he is accessing online, in particular the type of pornographic material that he is viewing.

   [91] Dr Riordan's First Addendum Report, par 118 (BM 731 - 732).

9. Dr Riordan also opines that Mr Miller's community reintegration and ability to desist from further offending behaviour would be bolstered by the following:[92]

   Engagement in vocational training and/ or by secure stable fulltime employment, within the confines of what he is medically and physically cleared to complete.  Mr Miller expressed aspirations to work within the car industry, in either a wrecking yard or as a small motor mechanic.  These goals should be encouraged.

   Mr Miller should engage with meaningful community-based activities, hobbies and/ or structured recreational pursuits.  He reported a strong connection to culture as such, involvement in appropriate culturally based activities may assist him to develop appropriate pro-social peer network.

   [92] Dr Riordan's First Addendum Report, par 125 (BM 733).

10. At a more general level, it would be important for Mr Miller to keep receiving counselling from FPIT.  This would address both the catalysts for his offending behaviour and his own trauma.  I am told that the plan is for Mr Miller to continue with Mr Becker, though this would be by video link as Mr Becker is based in Bunbury.  However, if, in the future, the therapeutic relationship needed to be in person, this could be facilitated. [93]

    [93] Transcript 12.8.25, page 36 (Applin), 43 - 44 (Cashmore).

11. Returning to the first key risk area, accommodation, I endorse the observation of Hall J in The State of Western Australia v Corbett [No 5] that:[94]

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

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

12. Along similar lines, Dr Hall observes that:[95]

    The pillars of any effort by Mr Miller... to avoid relapsing into substance abuse and/ or criminal behaviour, including sexual offending, are those of accommodation, suitable peer associations, purposeful activity, and improve coping with stress.

    [95] Dr Hall's 2024 Report, par 91 (BM 465).

13. The materials before the court raise concerns about the ability of Mr Miller to reside independently.  This is due in part to his limited history of independent living and limited knowledge about what independent living may entail.  He is seen as requiring considerable support and scaffolding in carrying out the tasks of daily living.[96]

    [96] Dr Riordan's First Addendum Report, par 116 (BM 730).

14. There are two options identified in the materials before the court.  Before considering each, it is instructive to note that at either accommodation venue, Mr Miller would be receiving a significant amount of assistance from Uniting WA.  Initially this would be in the order of 10 to 20 hours a week, though would taper as Mr Miller became more integrated.  The primary focus of these support services would be support with temporary transitional accommodation while Mr Miller secures more a permanent accommodation option.  In this regard, Uniting WA will also aid Mr Miller in finding longer term accommodation.  He would also receive practical support with transportation, budgeting/financial management, tasks of daily living (e.g. cooking, shopping etc), organising bank accounts, Centrelink, Medicare, assistance with reporting obligations, establishing connections with appropriate medical services and recreational pursuits and access to mentoring and informal counselling.  The aim is to assist Mr Miller towards self-sufficiency.[97]

    [97] See also: transcript 12.8.25, page 35 - 36, 38 (Applin).

15. The first option is the HRSO Supported Accommodation Program.  This is administered through Uniting WA's Specialist Re-Enry Services (Uniting WA).  Mr Miller has now engaged with Uniting WA for over 6 months which is the requisite time to enable him to have access through that program.  It is evident from the materials before the court that Mr Miller's more recent engagement with Uniting WA staff has been affected by his frustration which I have described at [122] ‑ [123].  Concern is expressed as to his behaviour towards Uniting WA staff.[98]  However, that concern has not reached the level where United WA has declined to assist Mr Miller.  He is now 7th on their waitlist.

    [98] See for example Dr Riordan's Second Addendum Report, pars 21 - 24 (BM 740 - 741).

16. The second option is the Tate Street Lodge and associated properties (Tate Street).  Mr Miller has been offered a place at Tate Street, which is being held for him pending the determination of the present Application.[99]  It appears that Mr Miller would pay for this accommodation with a combination of royalty payments and Centrelink.  He would be living in a residence with four other men.  He would be responsible for looking after himself, including sourcing and cooking his own food.  There is a shopping centre within walkable distance and public transport nearby.[100]  Ms Applin confirmed when giving evidence that GPS tracking works at Tate Street.[101]

    [99] Transcript 12.8.25, page 34 (Applin).

    [100] See generally: transcript 12.8.25, page 35 (Applin).

    [101] Transcript 12.8.25, page 35 (Applin).

17. However, there are risks associated Tate Street.  These are conveniently identified in Dr Riordan's First Addendum Report:[102]

    Mr Miller's second accommodation is at Tate Street Lodge. The desktop spatial analysis completed by Western Australian Police, as reported in the Updated Community Supervision Assessment Reports reveal several factors that, in my opinion, render this housing option a high-risk placement. First, there are individuals who reside in the complex with known drug and violence related criminal histories; second, there are vulnerable women and children known to reside within 1 kilometre of the complex; third, there has been known drug offending within 1km of the address; fourth, known HRSO offenders reside in the complex, some of whom have convictions for child sex offences; fifth COMU and the Serious Offender Enforcement Squad have knowledge of a vulnerable transient female being at the premises, sixth, based upon my previous consultations with Mr and Ms Moyle, it is my understanding that Mr Miller is unlikely to have the financial resources to sustain the rental payments at Tate Street Lodge, and given the mixed demographic of the residents at Tate Street Lodge, it is possible that children will attend the complex, allowing Mr Miller opportunity to have unsupervised contact, contrary to the conditions of the proposed CSO.

    [102] Dr Riordan's First Addendum Report, par 117 (BM 731).

18. The WA Police provided an updated desktop spatial analysis in relation to the particular house and its other residents.  The August 2025 Report and the Clancy-Lowe Affidavit reveal that Mr Miller would be sharing the residence with four other males, each of whom has criminal convictions and one of whom has convictions which include child sex offences.  Two of the residents appear to be known prohibited drug users, though both are on bail with no conditions.  None of the other current occupants are currently on any orders supervised by Adult Community Corrections.  There are four other men who listed the residence as their last known address, with a similar offending and drug use profile.  There is a child tutoring business nearby.   In the surrounding suburb there are vulnerable women and children, and regular incidents of family violence and drug offending.

19. If there is a need to wait for accommodation, then I support Dr Riordan's suggestion that, should Mr Miller remain in prison, consideration should be given to him being housed in a minimum-security facility, such as the Bunbury Pre-Release Unit.  As to her reasons:[103]

    Within the confine of a maximum-security facility, Mr Miller has limited opportunity to apply and generalise skills that he may develop in any treatment programs to diverse situations, contexts and circumstances.  Further, Mr Miller has limited opportunity to develop skills for independent living; a skill set that requires further development to assist his community re-integration given that he does not appear to have resided independently in the community previously.

    [103] Dr Riordan's First Addendum Report, par 121 (BM 732).  See also: Dr Riordan's Second Addendum Report, par 137 (BM 766).

20. Dr Hall, when giving evidence, ended up with the view that shared accommodation, with the right housemates, would be a net positive:[104]

    Now, you may have heard the discussions about the proposed accommodation in Armidale ‑ ‑ ‑?‑‑‑Yes.

    ‑ ‑ ‑ in a share house.  Can I ask your opinion on the suitability, first of all, of the respondent sharing with three other males?‑‑‑My opinion about that is that notwithstanding there being one or other occupants who are particularly unstable or provocative toward Mr Miller, that it would be a net positive arrangement in terms of not too many people around him, but not social isolation either.

    And is there any particular individual that you consider would be - it would be unsuitable from a risk perspective for Mr Miller to share with?‑‑‑I think the main thing that comes to mind would be someone who had an unbridled, unmanaged substance abuse problem.  I think that would be the biggest risk.

    [104] Transcript 12.8.25, page 66 (Hall).

21. And, in cross-examination:[105]

    And in terms of the accommodation, you said being with others as compared to living on his own is a positive thing - dependent upon their antecedents and risk profile - but in general terms, being with three other people is a positive for him, compared to being isolated?‑‑‑Yes.  Yes.

    To that end, being isolated - living alone perhaps - boredom, resorting to substance abuse - or indeed, pornography use - leads to an elevated risk?‑‑‑Yes.

    So setting aside, for a moment, the issue of not knowing the personal antecedents of those that he will end up living with - should he be living at Tate Street - you don't see any issues with him residing there, given what you know about his risk profile?‑‑‑No.

    [105] Transcript 12.8.25, page 70 (Hall).

22. Dr Riordan made comments to similar effect, acknowledging both the positives and risks of Mr Miller living in a house-share type situation.[106]  Specifically:[107]

    Do I take it that, in simple terms, him living with housemates, or three others potentially, has an elevated level of risk as compared to him living alone in supportive accommodation?‑‑‑It - it could.

    Yes?‑‑‑It also could offer a level of protection with respect to combating loneliness, having a social support network there, being able to connect with others.  Certainly, if they were pro-social, that would be protective, rather than living an isolated - in an isolated accommodation where he would be in a curfew from 7 to 7, or - or whatever the curfew arrangements are, and he would be by himself.

    All right.  You have, perhaps, pre-empted my next question.  Whether it's preferable or not him being with others as compared to being on his own, really, is dependent upon the characteristics of those individual people, is it not?‑‑‑Yes.

    Yes.  And if it is that they are, as you say, pro-social, indeed, as His Honour touched upon, subject to restrictions that prevent alcohol and drugs and the like, that could assist him in terms of him adhering to his conditions of his order?‑‑‑Yes.  It would.

    And just picking up on an answer you just gave, in terms of the correlation between him - perhaps if he were to live alone, and loneliness, is that a risk scenario, in terms of him being isolated - stressed, perhaps - and then moving to alcohol and substance abuse, and thereafter, an elevated risk of re-appending?‑‑‑It has the potential to be, yes.  Mr Miller has lived a very nomadic and transient lifestyle in periods where he hasn't been incarcerated, and he seeks out contact with family, community, and peers as well.  So in terms of being required to stay in one place - is going to be a challenge for him, and being in one place, in a suburb that he doesn't know, and then by himself, for  protracted periods of time, would be difficult for him to manage, given his difficulties with emotional regulation.

    [106] Transcript 12.8.25, page 53 (Riordan).

    [107] Transcript 12.8.25, pages 59 - 60 (Riordan).

23. Dr Riordan also gave evidence that it would be inappropriate from a risk perspective for Mr Miller to share a house with someone who has an alcohol dependency or a substance abuse disorder.   On the other hand, if he was sharing a house with people who were also on orders not to be in possession of alcohol, that would be supportive for him.[108] 

    [108] Transcript 12.8.25, pages 54 and 55 (Riordan).

24. The paramount consideration is the need to ensure adequate protection of the community.[109]  In my view, this can be met with Mr Miller residing at Tate Street.  The fact that the two other residents with drug issues are on bail gives me some confidence that they do not have the sort of 'unbridled, unmanaged substance abuse problem' that Dr Hall spoke about; they no doubt know that any drug related offending will place them at risk of being Bail Act 1982 (WA) sch 2 offenders. I accept the evidence of both Dr Hall and Dr Riordan that there are both positives and risks of Mr Miller living in shared accommodation. The positives by way of social interaction will in my view be beneficial to Mr Miller's rehabilitation. Having spent so long in prison, he will readily be able to deal with others who have had similar involvement with the criminal justice system. Moreover, he is a mature man, not an impressionable younger man. My impression from the evidence is that he is more likely to be a dominant personality in the residential environment, and it may be that he ends up engaging in some of the same informal mentioning which he has done in prison in recent months. The comprehensive suite of protective orders proposed in the supervision order will also assist in managing the risks of future offending. The lead indicator of risk of offending would be Mr Miller using alcohol or prohibited drugs, which will be subject to regular testing. I also place considerable weight on the fact that in recent months Mr Miller has demonstrated a positive and productive attitude towards both individual and group counselling and appears to be making some real gains from both. His ability to cope with stress has improved markedly. Continued, indefinite, imprisonment would, I sense, set him back and undermine these gains.

    [109] HRSO Act s 48(2).

1. At a more general level, Dr Riordan observed that Mr Miller had expressed a willingness to comply with the standard conditions of any order, and did not have any neurodevelopmental disorders or intellectual disability which would prevent him from doing so.[110]  Dr Hall's evidence was to the same effect.[111] 

   [110] Transcript 12.8.25, page 58 (Riordan).

   [111] Transcript 12.8.25, pages 69 - 70 (Hall).

2. For these reasons, Mr Miller has satisfied me, on the balance of probabilities, that he will substantially comply with the standard conditions of the order as made.  These reasons also mean that Mr Miller is not in the position where, as a last resort, continuing detention should be ordered.  Rather, the curtailment of Mr Miller's liberty by way of a supervision order is both necessary and sufficient to protect the community from the demonstrated unacceptable risk of harm to the community. 

3. Dr Riordan was of the view that the appropriate length of a supervision order would be 3 years.  A term of this length would balance the supportive and rehabilitative nature of the order, without being crushing on him.[112]

   [112] Transcript 12.8.25, pages 55, 60 (Riordan).

4. Dr Hall has some concerns that an order with a duration of less than five years 'might run the risk of setting him up for failure before he has… been able to put in place for himself the…internal resources and strategies to go forward on his own'.[113]

   [113] Transcript 12.8.25, page 67 (Hall).

5. In my view, the term should be three years.  My sense is that it will be readily apparent within the first 12 months whether Mr Miller is able to put into effect his positive intentions and continue with the very positive steps he has made with the rehabilitation process over that past 12 months, or not.  If the first 12 months go well, then there is a real risk that the conditions of the order will impede or frustrate Mr Miller's transition to a law abiding, prosocial and productive member of society.  If he breaches, then the issue of duration can, and should, be revisited.

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

OS

Associate to the Honourable Justice Gething

28 AUGUST 2025