The State of Western Australia v Mills [No 2]
[2023] WASC 126
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MILLS [No 2] [2023] WASC 126
CORAM: VANDONGEN J
HEARD: 8 & 9 MARCH 2023
DELIVERED : 26 APRIL 2023
FILE NO/S: SO 8 of 2022
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
DWAYNE ANTHONY MILLS
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 (WA) - Application for restriction order - Whether unacceptable risk that respondent will commit a serious offence if not subject to a restriction order - Whether necessary to make a restriction order to ensure the adequate protection of the community - Whether community can be adequately protected by supervision of the respondent
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Prisons Act 1981 (WA)
Sentence Administration Act 2003 (WA)
Result:
Supervision order made
Category: B
Representation:
Counsel:
| Applicant | : | Mr D S McDonnell |
| Respondent | : | Mr T Hager |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Geoffrey Miller Chambers |
Cases referred to in decision:
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4
The State of Western Australia v Clarke [No 2] [2023] WASC 53
The State of Western Australia v D'Rozario [No 3] [2021] WASC 412
The State of Western Australia v Mills [2022] WASC 224
VANDONGEN J:
Introduction
On 2 May 2022, the State of Western Australia applied for a restriction order in respect of Dwayne Anthony Mills pursuant to s 35(1) of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act). The hearing of the State's application (Application) took place before me on 8 and 9 March 2023.
If I find that Mr Mills is a high risk serious offender, as defined in s 7(1) of the HRSO Act, then I am required to make either a continuing detention order or a supervision order pursuant to s 48(1). At the hearing of the Application Mr Mills conceded that he is a high risk serious offender. Further, both parties submitted that I should make a supervision order pursuant to s 48(1)(b) of the HRSO Act.
For the reasons that follow I find that Mr Mills is a high risk serious offender. Those reasons will also demonstrate that I am satisfied that a supervision order should be made in relation to Mr Mills.
Relevant procedural history
On 1 March 2011 Mr Mills was convicted of two counts of aggravated armed robbery, contrary to s 392(c) and (d) of the Criminal Code (WA) (Code). He was sentenced on that date to serve a total of 7 years and 6 months imprisonment.
On 30 September 2016 Mr Mills was released on parole. However, parole was cancelled on 20 March 2017 because Mr Mills committed further offences, namely, stealing, making a threat to unlawfully harm, assault occasioning bodily harm, and unlawfully doing an act as a result of which the life, health or safety of another was likely to be, or was endangered.
On 22 March 2018 Mr Mills was sentenced to a total of 4 years imprisonment in respect of those offences. The sentence was ordered to be served cumulatively on the sentence he was then serving, meaning that he was required to serve a total of 11 years and 6 months imprisonment from 1 March 2011.
The State made the Application while Mr Mills was still a serious offender under custodial sentence, for the purposes of s 35(1) of the HRSO Act.
On 24 June 2022 the preliminary hearing of the restriction order application was conducted before Quinlan CJ, who was satisfied that there were reasonable grounds for believing that the court might find that Mr Mills is a high risk serious offender.[1] As a result, programming orders for the hearing of the Application were made, including an order that the hearing take place on 8 March 2023, and orders requiring Mr Mills to undergo examination by a psychiatrist and psychologist for the purpose of preparing reports.
[1] The State of Western Australia v Mills [2022] WASC 224 [55] (Mills).
At the preliminary hearing the State also sought an order that Mr Mills be subject to an interim supervision order until final determination of the Application. However, at the time of the preliminary hearing the Prisoners Review Board (PRB) was yet to determine whether Mr Mills should be subject to a post-sentence supervision order (PSSO) under the Sentence Administration Act 2003 (WA) upon his release. Accordingly, the State's application for an interim supervision order was adjourned until after the PRB had made its decision.
On 29 June 2022 the PRB made a PSSO in respect of Mr Mills.
On 4 July 2022 Quinlan CJ declined to make an interim supervision order on the basis that it was not necessary or desirable given the protection afforded to the community by the PSSO.[2] The application for an interim supervision order was then adjourned.[3]
[2] Mills [8].
[3] Mills [77].
It is unnecessary to recite the procedural history of this matter since 4 July 2022 in detail. It is sufficient to note that Mr Mills has remained subject to the PSSO since 29 June 2022 and has appeared before this court on several occasions since 24 June 2022, when updates were provided in relation to his performance under that regime.
The law
The relevant statutory provisions and the principles that are to be applied in the context of applications for restriction orders made under s 35 of the HRSO Act have been referred to in a great many decisions of this court. Recently, Tottle J set out a comprehensive summary of the central provisions and the principles that relate to their application in The State of Western Australia v Clarke [No 2][2023] WASC 53 [4], which I gratefully adopt:
(a)The objects of the Act are twofold: first, to ensure the adequate protection of the community and of victims of serious offences and, secondly, to provide for the continuing control, care or treatment of high risk serious offenders.
(b)The powers conferred by the Act are not to be exercised for the purpose of imposing additional punishment on an offender. The scheme of the Act requires that the court do no more than is necessary to achieve an adequate degree of protection for the community.
(c)The Act provides for the community to be protected by making restriction orders in respect of high risk serious offenders. There are two types of restriction orders: a continuing detention order, the effect of which is to detain an offender in custody after he has served his sentence; and, a supervision order, the effect of which is to release the offender into the community subject to compliance with conditions designed to monitor and control an offender's behaviour. Thus, the community may be protected by the provision of care and treatment to the offender while in custody in the hope that the danger posed to the community or sections of it will be reduced or by control continuing to be exercised over the offender in the community.
(d)A high risk serious offender is a person in relation to whom the court is satisfied by acceptable and cogent evidence and to a high degree of probability that it is necessary to make a restriction order to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.
(e)An offence is a serious offence if, among other offences, it is specified in sch 1 div 1 of the Act or it is specified in sch 1 div 2 of the Act and is committed in the circumstances indicated in relation to that offence in div 2.
(f)For the purpose of considering whether the court is satisfied that an offender is a high risk serious offender the court must have regard to each of the matters specified in s 7(3) of the Act.
(g)The State carries the onus of satisfying the court that an offender is a high risk serious offender.
(h)The court must make a restriction order if it finds that the offender is a high risk serious offender.
(i)The expression 'high degree of probability' connotes a standard of proof that is higher than the civil standard but less than the criminal standard and is otherwise incapable of further definition.
(j)The court must assess the level of risk that the offender will commit a serious offence or serious offences of the nature identified in the evidentiary materials supporting the application.
(k)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. That assessment must be made in light of the whole of the burden which would be placed upon the liberty of the offender by the making of a restriction order, including the imposition of any standard supervision order conditions. In this respect the Act does not envisage the possibility that a restriction order will be made to prevent the commission of a serious offence unless the risk of further re‑offending involves a real threat of harm to the community. The evaluative exercise the court must undertake involves balancing the level of the risk that the offender will commit a serious offence together with the magnitude of the harm associated with that risk against the burden that would be placed upon the liberty of the offender by a restriction order for an offence that they have not committed.
(l)The court may assess the level of risk that an offender will commit a serious offence at less than 50% yet still find that to be an unacceptable risk.
(m)In deciding whether to make a continuing detention order or a supervision order the paramount consideration is the need to ensure the adequate protection of the community.
(n)Section 29 of the Act limits the power of the court to make a supervision order rather than a continuing detention order. The section provides the court cannot make a supervision order unless it is satisfied on the balance of probabilities that a respondent will substantially comply with the 'standard conditions' of a supervision order. There are seven standard conditions specified in s 30(2). They include a condition to the effect that the offender will not commit a serious offence during the period of the order. (citations omitted)
I would only add the following.
Firstly, by operation of s 35(1), the State may only apply to this court for a restriction order in relation to a 'serious offender under custodial sentence who is not a serious offender under restriction'. A 'serious offender under custodial sentence' is a person:
(a)who is under a custodial sentence for a serious offence; or
(b)who -
(i)is under a custodial sentence for an offence or offences other than a serious offence; and
(ii)has been under that sentence at all times since being discharged from a custodial sentence for a serious offence.[4]
[4] HRSO Act, s 3.
A 'serious offender under restriction' is a person 'who is subject to a restriction order or an interim supervision order'.[5]
[5] HRSO Act, s 3.
Secondly, the onus is on the offender to satisfy the court that he or she will substantially comply with the standard conditions of a supervision order.[6]
[6] HRSO Act, s 29(2).
Evidence
At the hearing before me the State tendered a book of materials comprising three bound volumes of documents (book of materials). The book of materials contained a copy of Mr Mills' criminal record, a chronology of his offending history prepared by the State Solicitor's Office, records relating to his time whilst in custody, and a history of the decisions made by the PRB (and its predecessor, the Parole Board).
The book of materials also included several documents containing details of Mr Mills' offending history, transcripts of court proceedings, statements of material facts, witness statements, prosecution notices and indictments, and pre‑sentence reports. There are also reports relating to his participation in treatment programs, as well as parole assessments, review reports and compliance performance reports.
A number of reports that were prepared after the preliminary hearing also formed part of the book of materials. Those reports included:
(a)a PSSO compliance performance report dated 25 January 2023;
(b)a Proposed HRSO Treatment Options Report by Ms Tara Stagg, an HRSO Planning Manager, dated 24 February 2023;
(c)a Community Supervision Assessment Report by Ms Sarah Gevers, a Senior Community Corrections Officer, dated 28 February 2023;
(d)a psychiatric report by Dr Natalie Pyszora, dated 22 January 2023; and
(e)a psychological report by Ms Julie Hasson, dated 17 January 2023.
Professor Pyszora, Ms Hasson, Ms Stagg and Ms Gevers also each gave brief oral evidence at the hearing on 8 March 2023.
The psychiatric and psychological reports were prepared in accordance with an order made by Quinlan CJ pursuant to s 46(2)(a) of the HRSO Act.
All of the above evidence was admitted at the hearing pursuant to s 84(5) of the HRSO Act, and without objection.
The issues
The Application raises the following issues:
(a)Can the State apply for a restriction order in relation to Mr Mills?
(b)Is Mr Mills a high risk serious offender, as defined by s 7(1) of the HRSO Act?
(c)If Mr Mills is a high risk serious offender, should I make a continuing detention order pursuant to s 48(1)(a), or should I make a supervision order pursuant to s 48(1)(b) of the HRSO Act?
I will deal with each of those issues in turn.
At the hearing Mr Mills conceded that he satisfied the definition of a high risk serious offender in s 7(1) of the HRSO Act. Notwithstanding that concession, I am required to make an assessment of all of the evidence properly admitted before me in making a determination about whether Mr Mills is a high risk serious offender.
Both the State and Mr Mills submit that if I find that Mr Mills is a high risk serious offender, then I should make a supervision order pursuant to s 48 (1)(b) of the HRSO Act.
Can the State apply for a restriction order in relation to Mr Mills?
Pursuant to s 35(1) of the HRSO Act, the State may apply to the Supreme Court for a restriction order in relation to a 'serious offender under custodial sentence' who is not a 'serious offender under restriction'.
For the reasons given by Quinlan CJ in Mills[14] ‑ [20], I am satisfied that Mr Mills was a 'serious offender under custodial sentence' within the meaning of s 35 of the HRSO Act at the time the Application was made. Further, Mr Mills is not a 'serious offender under restriction', as that phrase is defined in s 3 of the HRSO Act because he has never been subject to a restriction order or an interim supervision order.
It follows that the State may apply for a restriction order in relation to Mr Mills pursuant to s 35(1).
Is Mr Mills a high risk serious offender?
Pursuant to s 7(1) of the HRSO Act, an offender is a high risk serious offender if the court dealing with a restriction order application 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.
Pursuant to s 7(2) of the HRSO Act, the State has the onus of satisfying the court as required by s 7(1). The court is required to have regard to the matters set out in s 7(3) in considering whether s 7(1) is satisfied. I turn now to those matters.
I will first deal with Mr Mills' antecedents and criminal record, as required by s 7(3)(g).
Mr Mills' antecedents and criminal record: s 7(3)(g)
Antecedents
Mr Mills' antecedents are referred to in detail in the reports of Professor Pyszora and Ms Hasson.
He is the youngest of two children to his mother's first marriage and has three step‑siblings. Mr Mills' parents separated when he was very young. He did not have contact with his father apart from one occasion when he was a teenager. Within weeks of that meeting his father was murdered.
Mr Mills had a mostly unhappy childhood and adolescence, which was marred by physical and emotional abuse at the hands of his step‑father. He also had a difficult time at school, in part because he suffered from attention deficit disorder, but also due to emotional, behavioural and social difficulties. Eventually he was placed in a school for individuals who presented with severe behavioural problems, which was a hostile and abusive environment. Mr Mills left school without completing year 8.
He has been employed in a variety of different trades and labouring positions. However, he has struggled to maintain employment because of his drug use and antisocial lifestyle. Since his release on the PSSO he has been employed as an industrial cleaner, a role that he has enjoyed.
Mr Mills has a long history of polysubstance abuse. He appears to have begun using illicit substances at a very young age, including heroin, methylamphetamine and cannabis. He now attends pharmacological appointments for monthly injections to treat his substance abuse issues. He has also attempted to address his substance abuse through participation in counselling, including by engaging with a privately‑funded addiction recovery program in August 2021. According to Ms Hasson, much of his drug use has been for the purpose of self‑medicating in order to address a number of issues.
Mr Mills has been involved in one significant intimate relationship, which commenced when he was 17 years old. Although Mr Mills broke up with his partner for a period while he was in prison, they have now resumed a relationship. They have a daughter together, who is 16 years of age. While Mr Mills intends to maintain that relationship, other members of his family, including his daughter, are not supportive of his partner or the relationship.
Mr Mills now lives with his mother and his daughter.
Although he denies ever having been a member or a formal associate of any outlaw motorcycle gangs or other gangs, he has acknowledged that he is acquainted with several members of those types of organisations but only as a result of his involvement in the criminal justice system.
Criminal record
Mr Mills has a very lengthy criminal record. His offending began in the Children's Court when he was convicted of an offence of armed robbery in company that was committed in April 1992. After he was sentenced for that offence later that year, Mr Mills frequently appeared before the Children's Court in relation to a wide range of offences including threatening behaviour, possession of drugs, stealing motor vehicles, assault, burglary, unlawful wounding, robbery, aiding an escaped prisoner, attempting to pervert the course of justice, and breach of bail, as well as numerous driving offences.
As an adult, Mr Mills continued to commit serious offences from early 1998, until his most recent offending in February 2017.
The State prepared a helpful table of serious and other relevant offences committed by Mr Mills as at 29 April 2022, which is reproduced below.
| Date of Offence | Offence | Notes | Court & Outcome Date | Sentence / Outcome |
| 19 February 2017 | Assault occasioning bodily harm Endanger life, health or safety of a person Stealing Threats to injure, endanger or harm any person | Offences occurred at a train station, in the context of MILLS attending with a co‑accused for the purposes of selling a motor vehicle to the victim. The co-accused took the victim's money and said 'I am keeping the money so you have two choices, leave or my mate will shoot you'. MILLS pretended to be armed with a hand gun which was actually a pipe wrench. The victim asked for his money to be returned and the co-accused held a knife to the victim's throat. MILLS hit the victim numerous times with the pipe wrench to various parts of the body, causing bruising, a laceration to his eye and chipping his tooth. He was also knocked unconscious for a period of time. The victim regained consciousness and a further altercation occurred. MILLS drove his car at the victim whilst he was wrestling with the co-accused. MILLS then exited the vehicle and further assaulted the victim by punching him to the ground and stomping on his head before departing the scene with the co- accused. | Perth Supreme Court 22 March 2018 | 2 years imprisonment (cumulative) 2 years imprisonment (partly cumulative) 18 months imprisonment (head sentence) 12 months imprisonment (concurrent) Total: 4 years imprisonment |
| 8 March 2010 | 2 x Aggravated Armed Robbery s 392 (c) & (d) the Code | MILLS and a co-accused went to the victim's home. MILLS was wearing a balaclava and forced the victim's door open and charged in brandishing a handgun. MILLS demanded a 60 year old male and 59 year old female to lie on the ground. Another victim, aged 32, walked into the room and the gun was pointed at her and she advised that she had to get her 7 year old child from the bedroom where she was hiding. MILLS followed her with the gun into the bedroom and the victim got her child and returned to the lounge room with the other victims. MILLS then put the gun to one of the victims head and demanded money and the safe. The victim said that there was no safe. MILLS took the victims handbag and keys and drove off with the co-accused in the victim's car. | Perth Supreme Court 1 March 2011 | 7 years and 6 months imprisonment 7 years and 6 months imprisonment (concurrent) |
16 February 2006 | 2 x Possess unlicensed firearm Possess unlicensed ammunition | During a search of MILLS' home, Police located a 9mm calibre, semi-automatic pistol containing six 9mm calibre rounds in the magazine and a single round in the chamber. Also located was a shotgun and video recorder containing ammunition. The shotgun was loaded and its barrel had been shortened. | Perth Magistrates Court 2 February 2007 | 3 months imprisonment (concurrent) 3 months imprisonment (concurrent) 2 months imprisonment |
| 4 January 2000 | Robbery whilst armed | MILLS entered the Seabreeze Deli in Mandurah, armed with a knife. MILLS threatened two staff members with the knife and obtained approximately $1600 from the tills before decamping in a stolen car. | Perth Supreme Court 12 December 2000 | 7 years imprisonment |
| 4 January 2000 | Robbery | MILLS entered the Rumbling Tum Deli in Mandurah, asked the proprietor if she would change a dollar coin so that you could use the telephone and when she opened the till MILLS reached across and tried to grab the money out of the till. When the proprietor placed her body over the till to prevent MILLS from accessing the money, he struck her to the head. The proprietor dragged the till onto the floor behind the counter and MILLS ran from the store. | Perth Supreme Court 12 December 2000 | 5 years imprisonment (concurrent) |
| 4 October 1997 | Assault occasioning bodily harm | MILLS struck the 61 year old victim once across each side of his head with a metal bar. The victim fell to the ground unconscious, and later received 15 sutures to two lacerations on his head. | Perth Children's Court 9 September | 6 months imprisonment (concurrent) |
| 13 January 1998 | Attempted Robbery in company Armed Robbery in company | MILLS and a co-accused entered a deli and attempted to steal the till. The store worker was struck to the face by a number of punches. He fell to the ground and upon getting up from the ground picked up a chair for the purpose of fighting back. MILLS and his co-accused left. A short time later, MILLS and his co‑accused went to a pharmacy whilst armed with a dent puller and stole $1600 cash and a till valued at | Perth Supreme Court 8 September | 3 years imprisonment (concurrent) 5 years imprisonment |
| 16 February 1996 | Robbery | MILLS ran past the victim and snatched her handbag. The victim held on to the handbag and was pulled along for several metres before letting go due to breaking her middle finger. MILLS ran away before being apprehended by several members of the public. | Perth Children's Court 26 June 1996 | 11 months CRO |
11 April 1996 | Unlawful wounding | Facts unknown. | Perth 26 June 1996 | 11 months CRO (concurrent) |
| 14 April 1995 | 2 x Assault occasioning bodily harm | Facts unknown. | Perth Children's Court 18 January 1996 | 10 weeks IYSO |
| 3 January 1995 | Going armed so as to cause fear | Whilst walking down the street MILLS had a confrontation with two men. MILLS produced a knife and threatened one of the men with it. The two men chased MILLS to his home where MILLS then produced an unlicensed .22 calibre rifle from his bedroom, went to the front of the house, pointed it at the two men and told them that he was going to shoot them if they didn't leave. | Armadale Children's Court 6 July 1995 | $500 GB bond 6 months |
| 14 April 1995 | Assault occasioning bodily harm | MILLS was involved in a traffic accident and attempted to leave the scene. A passer-by went to take the keys out of the ignition to prevent him leaving. MILLS went to the rear of the car and took out a wheel brace. He approached the victim and struck him twice on the arms, causing a cut and swelling. | Perth Children's Court 4 July 1995 | 12 weeks IYSO |
| 2 January 1995 | Common assault | Facts unknown. | Armadale Children's Court 13 February 1995 | 16 weeks detention (concurrent) |
| 2 January 1995 | Firearm possessed no licence | Facts unknown. | Armadale Children's Court 13 February | 16 weeks detention (concurrent) |
| 22 November 1994 | Common assault | The complainant approached MILLS about an incident which had occurred two weeks earlier. As he did, MILLS produced a pair of scissors and a screwdriver and motioned at the complainant before proceeding to run off. As he ran away, MILLS picked up a brick and threw it at the complainant. | Perth Children's Court 12 December 1994 | 10 weeks probation |
| 1 June 1994 | Common assault | Facts unknown. | Perth Children's Court 1 June 1994 | 2 months probation |
22 December 1993 | Attempted Robbery in company | MILLS went up to the victim (unknown to MILLS) and tried to take the victim's sunglasses and proceeded to punch and kick the victim to obtain the glasses. | Perth Children's Court 24 February 1994 | 6 months probation |
| 24 December 1993 | Threatening behaviour Threatening violence | MILLS threatened to kill the complainant and smash up his house. | Perth Children's Court 24 February | 6 months probation 6 months probation |
| 21 April 1992 | Robbery whilst armed in company | MILLS was in company with others at a BMX club. He was armed with a cricket bat and demanded a cool drink which the victim provided and then MILLS left. | Perth Children's Court 2 June 1992 | 50 hours CSO |
In addition, when he was a sentenced prisoner between 20 March 2017 and 23 November 2022 Mr Mills was found guilty of a significant number of charges under the Prisons Act 1981 (WA). All of those charges related to possession of illicit drugs, except one offence which related to a failure to submit a bodily sample, namely urine.
Reports prepared under s 74 of the HRSO Act - s 7(3)(a)
On 24 June 2022 Quinlan CJ made orders that Mr Mills undergo examination by a psychiatrist and a psychologist pursuant to s 46(2)(a) of the HRSO Act. The effect of those orders was that Mr Mills was examined by Professor Pyszora, a consultant psychiatrist, and Ms Julie Hasson, a forensic psychologist, and reports were provided in accordance with s 74 of the HRSO Act.
Both reports were extremely detailed and thorough.
As I have already noted, Professor Pyszora and Ms Hasson also gave oral evidence at the hearing of the Application.
Mr Mills did not challenge the contents of the reports or their oral evidence.
The State submits that it 'predominantly' relies on Professor Pyszora's report and Ms Hasson's report as evidence of the current nature of the risk that Mr Mills poses to the community.[7]
[7] Applicant's Written Submissions for Restriction Order Hearing on 8 March 2023 [2].
Professor Pyszora examined Mr Mills on 30 December 2022. She said in her report dated 22 January 2023 that her assessment has been limited by Mr Mills' failure to fully cooperate with the assessment process, and his failure to attend a secondary interview session. She also said that Mr Mills 'presented as extremely tired, tense and belligerent at interview', that he resented the PSSO conditions that had been placed upon him, and that he felt that he had received no support after leaving prison.
Accordingly, Professor Pyszora said that her report had been completed using limited information, including information obtained during a relatively brief interview. Nevertheless, Professor Pyszora found that Mr Mills fulfilled the diagnostic criteria for an antisocial personality disorder, and the diagnostic criteria for a substance use disorder in relation to stimulants and opioids, as well as other substances.
Ms Hasson examined Mr Mills on 16 December 2022. She said that Mr Mills engaged well with the interview process once he had 'vented his views and had his concerns heard and in part acknowledged'. In her view several factors have contributed to Mr Mills' offending, the most relevant of which include the existence of an antisocial personality disorder, substance use issues, an antisocial lifestyle, the influences of antisocial peers, and unaddressed emotional and personality vulnerabilities.
Both report writers assessed Mr Mills using the Hare Psychopathy Checklist - Revised (PCL‑R) and the Historical, Clinical and Risk Management 20, Version 3 (HCR‑20v3) risk assessment tools. Professor Pyszora also used the Violence Risk Appraisal Guide - Revised (VRAG‑R).
Professor Pyszora reached following conclusions in relation to the PCL-R checklist:
The PCL-R was completed based upon one interview with Mr Mills, discussion with staff involved in his supervision, and file information … Mr Mills' total raw PCL-R score was 20, giving him a pro‑rated score of 23.5. This indicates that he falls into the 'moderate' psychopathy group. His positive scoring was predominantly on Factor 2 items, which is consistent with his diagnosis of severe antisocial personality disorder. Of note, the Facet 4 items of factor 2 of the PCL‑R account for most of the prediction of violence and he rated the maximum score possible (10).
Ms Hasson said:
[T]he PCL‑R is scored across one's entire lifespan and not on the basis of present state or relatively recent behavioural change. Mr Mills' score loads heavily on historical factors and those related to Factor 2 items such as his chronically unstable, antisocial and deviant lifestyle that is impulsive and irresponsible and parasitic in nature. He does not present with the more prototypical interpersonal and affective traits of psychopathy with the exception of limited remorse and empathy.
The HCR‑20v3 test reviews static and dynamic factors associated with an offender's historical risk factors, recent mental state, and future or anticipated risk management factors in order to create an individualised assessment of the offender's risk of violent reoffending.
After administering this test, both Ms Hasson and Professor Pyszora noted that Mr Mills presented with a considerable number of historical risk factors associated with problems with previous violence, antisocial behaviour, relationships, employment, substance use, personality, traumatic experiences, violent attitudes and treatment or supervision response. They also noted current risk factors of problems with insight and treatment or supervision response. The risk factors present included future problems with professional services and plans, personal support, treatment or supervision response, and stress and coping.
As I have already noted, Professor Pyszora also administered the VRAG‑R test. This is an actuarial instrument that assesses the risk of violent recidivism among those previously apprehended for criminal violence. Professor Pyszora found that:
Mr Mills scored a total of 29 on the VRAG‑R which places him at the 93rd percentile and in the highest of the 9 categories for re‑offending risk. For persons within this risk category 76% of them will commit a further violent offence within 5 years and 87% will violently reoffend within 12 years. However, as an actuarial measure, this figure represents the risk for the group and cannot determine if Mr Mills would be in the 24% of persons who have not offended within 5 years or the 13% who have not offended within 13 years.
Professor Pyszora identified that Mr Mills was most likely to reoffend by committing armed violence with antisocial peers. She says that any such offending would likely be associated with drug use. She also noted that weapons would likely be involved, and that Mr Mills could inflict serious harm on a victim if they did not comply. Finally, she opined that victim vulnerability would not deter Mr Mills from offending.
In her oral evidence Professor Pyszora said, in effect, that the risk that Mr Mills might commit further serious offences involving the use of violence was related to the risk of him relapsing into substance abuse, the risk of him associating with anti‑social people, and the risk of him doing both of those things in combination.
Ms Hasson identified three possible risk scenarios for future violence. The first scenario involved Mr Mills reoffending by committing an armed robbery or a violent robbery in order to fund drug use or alleviate financial pressure. In this scenario, she said that the likely target of his offending would be a small business or an individual, and that he would likely be either under the influence of drugs or suffering from withdrawal symptoms. The second scenario involved Mr Mills acting in a violent, aggressive or threatening manner at the behest of antisocial peers or at the request of a loved one, citing his pride in criminality as a salient factor. The final scenario involved assault of another due to heightened emotions, with intoxication being a likely component of such a scenario.
Ms Hasson said:
All scenarios have the potential to cause significant psychological or physical harm to the victims especially if there is a weapon present during the commission of any offending. In such a scenario there is a chance that the situation may escalate, resulting in the perpetration of serious or life-threatening violence. Mr Mills can never however be sure of how a victim may react and even if he has no intention of causing harm should a victim resist or challenge Mr Mills there is the potential for people to be injured, including seriously.
Professor Pyszora ultimately concluded that:
Mr Mills has an established pattern of offending behaviour, including serious offending within the meaning of s 5 HRSO 2020 since the age of 12 years which indicates a propensity to commit serious offences in the future. He has significant outstanding criminogenic treatment needs including antisocial personality disorder, antisocial cognitions, antisocial companions, family and relationship stressors, substance abuse, lack of education, and lack of pro-social leisure and recreation activities. All of these factors will need to be addressed through treatment and supervision in order to manage his risk. In my opinion Mr Mills would present a high risk of committing a serious offence if not subject to a Restriction Order. (emphasis in original)
In the evidence that she gave at the hearing of the restriction order application, Professor Pyszora reiterated those views. She also said that the high risk that Mr Mills presents of committing a serious offence would not be imminent if he were to be subject to a restriction order. She recommended that, given the severity of Mr Mills' antisocial personality disorder and the extent of his violence, that the appropriate term for a supervision order would be five years.
In Ms Hasson's opinion:
… a number of factors have contributed to Mr Mills' offending the most relevant of which include antisocial personality disorder, substance abuse issues, an antisocial lifestyle and the presence of antisocial peers and unaddressed emotional and personality vulnerabilities. The presence of weapons are salient factors in his risk of serious offences. Lifestyle factors including absence of employment, unstable lifestyle, limited prosocial supports, limited meaningful engagement in community based hobbies or leisure pursuits, and reliance/dependence on crime to support his drug use and daily living have all contributed to Mr Mills' risk of reoffending in the past.
Mr Mills has a number of outstanding treatment needs and it is recommended he engage in further counselling to reinforce and maintain treatment gains in the area of abstinence from substance abuse, continuing to challenge antisocial attitudes and cognitions, enhance his emotional regulation skills to reduce his potential to react in an aggressive and intimidatory manner and to limit the likelihood of engaging in reckless and impulsive behaviours that places himself and others at risk. It is also important for Mr Mills to continually review and refine his risk management plan. Change is a process; it is not linear and will take time and effort. There will be lapses. Mr Mills' motivation to cease drug use and form a prosocial life appears to be genuine. Behavioural and attitudinal change requires ongoing therapeutic input and above all time. He would benefit from further intervention to assist him to develop more robust emotional management and coping skills and to explore his prior inability to abstain from drug use.
Based on the current assessment it is the author's opinion that Mr Mills presents a high risk of serious reoffending if not subject to a Restriction Order - Community Supervision Order under the High Risk Serious Offender Act 2020.
A structured and meaningful day will be an important risk management tool to assist Mr Mills remain offence free and limit opportunity to engage in risky behaviours. Employment and stable accommodation may provide Mr Mills with a sense of pride, purpose and accomplishment and may improve his self‑esteem and self‑worth and his confidence to achieve his goals.
Should Mr Mills be determined to be a High Risk Serious Offender and be subject to a Supervision Order, it is essential that Mr Mills maintains a positive relationship with those providing intervention and monitoring to enhance the likelihood of compliance with conditions. Support is key to assisting Mr Mills to manage and ultimately reduce his risk of reoffending.
In cross‑examination, Ms Hasson gave evidence that a Supervision Order of two to three years would be appropriate to begin with, so as not to overwhelm Mr Mills with the extent of his commitments.
Other medical, psychiatric, psychological, or other assessment relating to the respondent - s 7(3)(b)
Treatment options report
The State also relied on a treatment options report authored by Ms Tara Stagg, a high risk serious offender planning manager with the Department of Justice, dated 24 February 2023. In that report Ms Stagg set out some treatment options that were said to be based on the treatment needs that Professor Pyszora and Ms Hasson had each identified in their reports.
In her report Ms Stagg said that if Mr Mills were released on a supervision order then he would receive psychological intervention from a departmental psychologist. However, Ms Stagg gave evidence at the hearing of the application that there was no departmental psychologist based in the Mandurah area. Accordingly, she said that the best option for Mr Mills was for him to receive psychological treatment remotely via telehealth. Ms Stagg agreed that if Mr Mills had to attend for psychological counselling in person, which would take place in East Perth, then that would present as a logistical barrier to Mr Mills' engagement with that service.
Ms Stagg also said that if Mr Mills were to be placed under a continuing detention order then a treatment plan would be put in place that was in line with the recommendations made by Professor Pyszora and Ms Hasson.
Community supervision assessment report
Ms Sarah Gevers, a senior community corrections officer who has conducted weekly supervision appointments with Mr Mills since his release on the PSSO, prepared a community supervision assessment report dated 28 February 2023. The report outlined Mr Mills' history, a proposed supervision plan, and identified some strategies to manage his offending behaviour.
Ms Gevers noted that Mr Mills' compliance with the PSSO order had been satisfactory. She said that he had reported weekly as directed, engaged appropriately with the supervision and was generally forthcoming with information. However, requests to view Mr Mills payslips either by email or on paper have not been granted, giving rise to some concerns. Further, Ms Gevers noted that Mr Mills had sometimes failed to attend appointments, and had returned non‑viable urinalysis samples.
Up to the date of the report, Mr Mills had been issued with written warnings for his non‑compliance on 15 November 2022 and 3 February 2023. On 3 February 2023 the need to comply with the PSSO, and the consequences of any future non‑compliance, were also explained to Mr Mills.
On 3 March 2023 a prosecution notice was issued to Mr Mills, alleging a breach of his PSSO for failing to attend psychological counselling and urinalysis testing on 24 February 2023. I was informed by the parties at the hearing of the Application that Mr Mills had pleaded guilty to that offence and a fine was imposed.
In her report Ms Gevers proposed that 47 conditions be included in a supervision order to assist in monitoring and addressing Mr Mills' ongoing risk factors if the Court decided to make such an order. Most of those proposed conditions were supported by both Professor Pyszora and Ms Hasson. However, Professor Pyszora gave evidence at the hearing before me that:
[Mr Mills] has got a longstanding anti‑authoritarian attitude and feels very aggrieved by authority. So I would imagine that a large number of conditions will be more difficult for him to accept … In my opinion, there need to be the least restriction conditions that will actually manage his risk.
The conditions proposed by Ms Gevers were reflected in a minute of proposed orders prepared by the State.
Other reports
The State also relied on three PSSO performance reports dated 17 August 2022, 19 October 2022, and 25 January 2023. Given the comprehensive nature of Ms Gevers' report, which summarises Mr Mills' compliance with the PSSO, I do not consider that it is necessary for me to refer to the PSSO performance reports in any further detail.
Information as to whether or not the respondent has a propensity to commit serious offences in the future - s 7(3)(c)
'Propensity' means that the offender has an inclination or tendency, or a disposition to commit serious offences either generally, or in a particular way, or upon a particular type of victim.[8]
[8] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [178].
Since 1992 Mr Mills has committed a significant number of robbery, attempted robbery, and armed robbery offences. That history clearly establishes that Mr Mills has a propensity to commit offences of robbery, or robbery‑related offences.
In her report Professor Pyszora concluded that Mr Mills' pattern of offending indicated that he had a propensity to commit serious offences in the future. A similar view was expressed by Ms Hasson.
Whether or not there is any pattern of offending behaviour - s 7(3)(d)
Mr Mills' offending demonstrates the existence of a clear pattern of offending behaviour. As Ms Hasson said in her report:
Mr Mills' history as evidenced by the significant number of charges and convictions for violent behaviour demonstrates a clear pattern of violence across a number of developmental stages with an escalation in his behaviour over time. Mr Mills' violent behaviour shows some diversity; he has used various weapons as well as his own body when assaulting others. He has targeted strangers and acquaintances. Some of Mr Mills' violent acts have been reactive, motivated by anger and other emotions, cognitions and beliefs. Other episodes of violence have been instrumental and motivated by financial strain and a desire to obtain needs and wants. The severity of violence perpetrated by Mr Mills has varied, resulting in physical injury to some victims as well as psychological harm to others. In many if not all instances Mr Mills has been the instigator/aggressor.
Efforts to address offending behaviour and whether Mr Mills' participation in any rehabilitation programme has had any positive effect - s 7(3)(e) and (f)
Mr Mills has participated, to varying degrees, in some rehabilitation courses while in custody, though his engagement is limited for an offender with such an extensive criminal history. His participation in custodial programs includes the Pathways substance abuse program in 2011, the Violent Offender Treatment Program (VOTP) in 2016, and the Think First program in 2017 and 2019. He also participated in ReSet in 2021 to prepare for his release from custody, and Whitehaven Clinic for substance abuse counselling.
The reports of Mr Mills' participation in these programs are varied. Some of the programs were cancelled due to circumstances beyond Mr Mills' control, and others he withdrew from himself. Notably, in spite of his historical substance abuse problems, Mr Mills felt as though he did not need to finish the Pathways program he began, since he believed he was able to give up substances if he chose to do so. Mr Mills continued to abuse substances in prison after quitting the program and continues to rely on pharmacological therapy for his drug use.
Other programs that Mr Mills has satisfactorily completed do not seem to have affected his offending. The State submitted that following completion of the VOTP in 2016, Mr Mills claimed that he had 'shifted his moral compass, he understood the risks of associating with antisocial peers and the importance of avoiding them, and that he intended to avoid getting involved in other people's battles'. He nonetheless went on to commit a violent offence with an anti‑social peer less than a year later.
His more recent participation in programs seems to have been positive. He reportedly engaged well with the ReSet program, and attended all 13 of the Whitehaven counselling sessions, which he funded himself. He reportedly made very positive progress in these sessions.
Ms Hasson noted that Mr Mills' attitude of self‑reliance has meant that he has been reluctant to seek help, though he did acknowledge in his interview that engagement in programs and counselling had been helpful to him.
Mr Mills has begun to acknowledge and accept responsibility for his offending, and he seems to have gained increased insight into his behaviour. It appears some positive progress has been made, and that further engagement with treatment would assist Mr Mills in managing the stressors that he currently faces.
Most recently, Mr Mills has attended two telehealth appointments with Ms Caris Hamlett from the Department of Justice Forensic Psychological Intervention Team on 13 January 2023 and 10 February 2023. The sessions focused on rapport‑building with a view to building on gains made from Mr Mills' progress in the VOTP, and to prevent him from reoffending. The State's unchallenged submissions suggest that Mr Mills has not yet fully engaged with the treatment due to his concerns that information he discloses may negatively impact these proceedings.
The risk that the respondent would commit a serious offence if not subject to a restriction order - s 7(3)(h)
Both Professor Pyszora and Ms Hasson have expressed unchallenged opinions that Mr Mills presents a high risk of committing a future serious offence if he is not subject to a restriction order.
Professor Pyszora stated in her report that:
Should Mr Mills relapse into substance use and/or begin associating with antisocial and drug using peers, it is highly likely that he would relapse into serious offending. Association with antisocial peers would also increase contact with weapons including unlicensed firearms. Access to firearms would increase the chances of serious and possibly fatal outcomes. Bail and parole have not previously been protective against serious re-offending.
Mr Mills presents a chronic risk of violence in view of his long history of violence, early onset at the age of 12 years, severe drug dependency, severe antisocial personality disorder, longstanding antisocial identity, and largely untreated criminogenic needs. If he resumes/maintains contact with antisocial peers this will increase his risk. Any association with [outlaw motorcycle gangs] would increase his risk significantly.
However, Professor Pyszora was of the view that the risk Mr Mills might commit another serious offence was not imminent as his risk factors are currently partially managed on the PSSO. In her view a restriction order that provided for monitoring, treatment, supervision and victim safety planning would sufficiently manage his risk factors.
Ms Hasson also reached the view that Mr Mills presents a high risk of serious reoffending if he is not subject to a restriction order. She observed, in her report, that:
… a number of factors have contributed to Mr Mills' offending the most relevant of which include antisocial personality disorder, substance abuse issues, an antisocial lifestyle and the presence of antisocial peers and unaddressed emotional and personality vulnerabilities. The presence of weapons are salient factors in his risk of serious offences. Lifestyle factors including absence of employment, unstable lifestyle, limited prosocial supports, limited meaningful engagement in community based hobbies or leisure pursuits, and reliance/dependence on crime to support his drug use and daily living have all contributed to Mr Mills' risk of reoffending in the past.
In the light of his extensive criminal history and having particular regard to the unchallenged opinions of Professor Pyszora and Ms Hasson, which I accept, I am satisfied that there is a high risk that Mr Mills will commit a serious offence if he is not subject to a restriction order.
Any such serious offence is likely to be committed in company with others, involve physical violence and the use of weapons, and will inevitably carry with it the risk of trauma and injury being suffered by any victims of his offending behaviour.
The need to protect members of the community from that risk - s 7(3)(i)
Given my conclusions concerning the degree and nature of the risk that Mr Mills will commit a violent serious offence if he is not subject to a restriction order it is, in my view, obvious that there is a significant need to protect members of the community from that risk.
Any other relevant matter - s 7(3)(j)
In my view there are no other materially relevant matters that have not been dealt with in the context of the other mandatory considerations in s 7(3) of the HRSO Act.
Conclusion as to whether respondent is a high risk serious offender
Mr Mills' counsel conceded at the hearing that Mr Mills is a high risk serious offender. That concession should be accepted.
As I have already explained, based on the acceptable, cogent and unchallenged evidence before me, I have found that there is a high risk that Mr Mills will commit a serious offence if he is not subject to a restriction order. Specifically, there is a high risk that he will commit a serious offence that involves the use of physical violence and weapons, which is likely to be committed in company with others, carrying with it the risk of trauma and injury to any victim.
It necessarily follows, in my view, that the risk Mr Mills will commit a serious offence is an unacceptable risk.
On that basis I am satisfied, to a high degree of probability, that it is necessary to make a restriction order in relation to Mr Mills to ensure the adequate protection of the community against that unacceptable risk.
In reaching that conclusion I have not ignored the fact that Mr Mills is currently the subject of the PSSO, and the possibility that this restraint on him might provide adequate protection for the community against the unacceptable risk that he will commit a serious offence.[9] Nor have I overlooked Professor Pyszora's opinion that the risk that Mr Mills might commit another serious offence is not imminent as his risk factors are currently partially managed on the PSSO.
[9] The State of Western Australia v D'Rozario [No 3] [2021] WASC 412 [21].
However, Professor Pyszora's opinion about the effectiveness of the PSSO to reduce Mr Mills' risk must be considered in the context of her view that Mr Mills is only 'partially managed on the PSSO' and her further view that 'the current PSSO is not sufficient in terms of conditions or duration to adequately manage his risk factors'.
I accept Professor Pyszora's opinions in this regard.
In my view, the conditions that Mr Mills is required to comply with under the PSSO are not sufficient to reduce to an acceptable level the risk that he will commit a serious offence, and they do not eliminate the necessity to make a restriction order to ensure the adequate protection of the community. Importantly:
(a)The PSSO does not require Mr Mills to be the subject of electronic monitoring, or conditions that require him to disclose his associations, which Professor Pyszora says is an important component of risk management to ensure that he does not associate with anti‑social and drug-using peers.
(b)The PSSO does not prohibit the possession of licenced firearms, and yet Mr Mills should not be permitted to apply for or possess a firearms licence.
(c)The PSSO does not contemplate the involvement of members of the Western Australia Police Force in the supervision and monitoring of Mr Mills.
(d)The PSSO is only in force for a period of 12 months, whereas Professor Pyszora is of the view that Mr Mills should be the subject of supervised management in the community for at least five years, and Ms Hasson is of the view that such supervision should be for a period of two to three years.
It follows from this that I am therefore satisfied that Mr Mills is a high risk serious offender for the purposes of s 7(1) of the HRSO Act.
Continuing detention order or supervision order?
Pursuant to s 48(1) of the HRSO Act, if I am satisfied that Mr Mills is a high risk serious offender then I am required to either make a continuing detention order or a supervision order. In deciding which order I should make I must choose the order that is least invasive or destructive of Mr Mills' right to liberty, whilst bearing in mind that it is the degree of protection for the community that is the paramount consideration.
I can only make a supervision order if Mr Mills has satisfied me, on the balance of probabilities, that he will substantially comply with the standard conditions of a supervision order.[10]
[10] HRSO Act, s 30(2).
On the evidence before me and having regard to the submissions that have been made by both counsel, Mr Mills has satisfied me, on the balance of probabilities, that he will substantially comply with the standard conditions of a supervision order. In particular, I am satisfied that he will comply with the standard conditions set out in s 30(2) of the HRSO Act in a manner and to an extent that is consistent with and will enable the attainment of the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that he will commit a serious offence.[11]
[11] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [52].
In my view, such an order will afford adequate protection for the community for the following reasons.
Firstly, and significantly, Mr Mills has not committed any offences since he was released on 17 July 2022, let alone any violent serious offences, notwithstanding my findings about his history of committing, and his propensity to commit, such offences.
Secondly, Mr Mills has been largely compliant with the terms of the PSSO since it was first imposed on him on 17 July 2022. Although there have been some non‑compliance incidents in relation to conditions concerning urinalysis and psychological counselling, his compliance with supervision is described by Ms Gevers as 'satisfactory'. Relevantly, there is no evidence to suggest that Mr Mills has failed to comply with the conditions in the PSSO that he not have contact with any victims of his offences or with a co‑offender, or that he not be in possession of or use any prohibited drugs, or that he not associate with nominees, associates or members of any motorcycle clubs since his release from prison.
Thirdly, Mr Mills currently lives with, and has the support of, his mother and his 16‑year‑old daughter. His mother has indicated that she is willing to continue to accommodate Mr Mills should he be made subject to a supervision order. Although there have been some concerns expressed by his mother and daughter about his current relationship with his daughter's mother, there have apparently been no issues of concern to date.
Fourthly, Mr Mills has been employed on a casual basis as a general hand since 27 September 2022. He was still serving a probationary period of employment at the time of the hearing, but he expected that he would be offered a permanent position in the near future. He has also successfully completed a certificate in surface extraction on 16 September 2022, and his employment mentor has said that he has been working positively.
Fifthly, the unchallenged expert evidence of Professor Pyszora and Ms Hasson is to the effect that the risk that Mr Mills might commit a serious offence can be adequately managed by making him subject to a supervision order. There is no expert evidence in support of a conclusion that it is necessary to do more, by way of a continuing detention order, to achieve an adequate degree of protection for the community.
Finally, the State has not submitted that only a continuing detention order would provide adequate protection for the community. In fact, the State has submitted that the risk that Mr Mills will commit a serious offence is able to be managed in the community and that a supervision order should be made. Although I am not bound to accept the State's submission, it is plainly a very significant factor in favour of a supervision order being made.
Prior to the hearing of the Application the State provided me with a minute of a proposed supervision order which contained 49 conditions.
At the hearing I raised with both counsel a question of why it was necessary for Mr Mills to be subject to such a large number of conditions, particularly given Professor Pyszora's evidence that:
[Mr Mills] has got a longstanding anti-authoritarian attitude and feels very aggrieved by authority. So I would imagine that a large number of conditions will be more difficult for him to accept. Whether it also makes it - in my opinion, there need to be the - the least restriction conditions that will actually manage his risk.
After Professor Pyszora had given evidence, I asked both counsel to confer with each other, and with Professor Pyszora, Ms Hasson, Ms Stagg and Ms Gevers, in an effort to see whether the proposed conditions could be re‑drafted to reduce the number of conditions that Mr Mills would have to comply with, without affecting the overall effectiveness of the proposed order.
Ultimately, on the second day of the hearing, a minute of a proposed supervision order that contained 37 conditions was produced. Almost all the originally proposed conditions had been either re‑drafted or removed entirely.
In an email that was sent to the Court on 10 March 2023, counsel for Mr Mills advised that his client did not take any issue with the terms of the proposed supervision order.
I will hear from the parties as to the precise terms of the supervision order. However, I propose making a supervision order in the following terms.
Pursuant to section 48(1)(b) of the High Risk Serious Offenders Act 2020 (WA), the Court, having found that the Respondent is a high risk serious offender within the meaning of section 7(1) of the High Risk Serious Offenders Act 2020 (WA), makes a supervision order in relation to the Respondent, for a period of 5 years from 26 April 2023, on the following conditions (the 'Order'):
You, DWAINE ANTHONY MILLS, must:
STANDARD CONDITIONS
1.Report to a Community Corrections Officer ('CCO') at the East Perth Adult Community Corrections Centre at 30 Moore Street, East Perth, within 48 hours of the Order being made and advise the CCO of your current name and address.
2.Report to, and receive visits from, a CCO at such times and at such places as reasonably directed by that CCO.
3.Notify a CCO of every change of your name, place of residence, or place of employment at least 2 business days before the change happens.
4.Be under the supervision of a CCO and comply with any reasonable direction of the officer (including any direction for the purposes of section 31 or 32).
5.Not leave or stay out of the State of Western Australia without the permission of a CCO.
6.Not commit a serious offence during the period of the Order.
7.Be subject to electronic monitoring under section 31 of the High Risk Serious Offenders Act 2020 (WA).
ADDITIONAL CONDITIONS
Residence
8.Take up residence at [the respondent' address] and unless working confirmed night shifts, spend each night or a portion (which may be further defined via an instruction from a CCO) of each night at that address or at a different address only if such different address is approved in advance by a CCO assigned to you.
Reporting to a CCO and supervision by a CCO
9.Report to a CCO at your approved address within normal business hours on the day of commencement of this order.
Attendance at programs or treatment
10.Attend all appointments and receive visits from any medical practitioner, psychiatrist, psychologist, counsellor, support service and support person nominated by a CCO, as reasonably directed by a CCO.
Reporting to WA Police
11.Report to any WA Police Officer nominated by a CCO or WA Police Officer from time to time, and at such times and at such locations as reasonably directed by a CCO or WA Police Officer.
12.If requested by a WA Police Officer, permit that officer (and any other officer assisting that officer) to search your person, and to enter and search your residence and vehicles for the purpose of monitoring your compliance with your obligations under this Order, and allow any such officer to seize any items that the officer believes, on reasonable grounds, may constitute evidence of a contravention of any condition of this Order.
13.Remain at your premises and vehicle at all times during any search being conducted under condition 12 of this Order.
Disclosure/Exchange of information
14.Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this Order, including confidential information.
Restrictions on contact with victims
15.Have no contact, directly or indirectly, including contact in person, by mail, telephone, through a third person or by electronic means, with [redacted].
16.Report to the CCO any direct or indirect contact with any of the persons named in condition 15 of this Order on the next working day you report to a CCO.
Criminal conduct
17.Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either sexual offences, violence, threats of violence, or the possession of weapons or offensive instruments.
18.Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 (WA) applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014 (WA), and your use is in accordance with the instructions of the prescriber.
Prevention of high-risk situations
19.Not to associate with Annette Teakle or Duane Gordon Grabbi.
20.Attend for, and submit to, urinalysis testing for prohibited drugs as directed by the CCO or by a WA Police Officer including accompanying such persons to an appropriate location for such testing to take place.
21.Provide a valid sample pursuant to Condition 20.
22.Not remain in the presence of any person who you know or ought to know is affected by prohibited substances unless the identity of such person is approved in advance by the CCO.
23.Not remain in any place where you know or ought to know that prohibited drugs are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place, or remove the persons consuming prohibited drugs from your residence.
24.Not be a member or associate of an Outlaw Motorcycle Gang and have no contact or affiliation with members of any such gang, unless approved by a CCO, and to cease or cancel such membership or association if directed to do so by a CCO or WA Police Officer.
25.Within 48 hours of the commencement of this Order, and following each occasion that you obtain a new device, on the next occasion that you report to a CCO, advise a CCO of every computer, telecommunication and electronic device capable of storing digital data or information, that is in your possession or control, or that is used by you, whether or not it is capable of being connected to the internet, and the location of that device.
26.Not to be in possession of or have access to any mobile telephone or other communications device with 'Cipher' encryption or any encrypted application including, but not limited to, the applications known as WhatsApp, Wickr, Snapchat and Signal.
27.Have in your possession or control only one mobile telephone or other communications device, and provide the IMEI Number, the SIM card number, the telephone number, any password or PIN required to gain access to such device, and the name of the network provider of that device to the officer in charge of the High Risk Serious Offender Team of the WA Police within 48 hours of the commencement of this Order, or where applicable, within 48 hours of obtaining that device.
28.Not allow any person other than a CCO or a WA Police Officer to have access to any computer, telecommunication and electronic device referred to in conditions 25 and 27, without prior approval from a CCO.
29.Enable device locking or password access to all of your computer, telecommunication and electronic devices, and not provide or disclose such passwords or other means used to gain access to any such computer, telecommunications and electronic device referred to in condition 25 and 27, or any online accounts, to any person other than a CCO or a WA Police Officer.
30.Upon request from a CCO or WA Police Officer, permit a CCO or WA Police Officer at any location reasonably nominated by them, to have access to any computer, telecommunication and electronic device in your possession or control that is capable of storing digital data, for the purpose of investigating your computer, telecommunication and electronic device related activities.
31.Upon request from a CCO or WA Police Officer, provide to a CCO or WA Police Officer any passwords or any other means used to unlock or access any such device referred to in condition 30, including providing all screen names, usernames, and email addresses. Should any other entity be required to access a device for instances such as technical advice, approval must be sought in advance from a CCO.
32.Not delete or otherwise remove or disguise, or cause or allow to be removed or disguised, any data including but not limited to data relating to telephone or other calls, Short Message Service, internet search histories or logs capable of identifying your activities on any device referred to in condition 30, whether or not the device is capable of connecting to the internet, without approval in advance obtained from a CCO.
33.Not to be in possession of any firearm, any ammunition or any offensive or prohibited weapon, replica or dangerous article and not to apply for, acquire or hold a licence to possess any firearm, any ammunition or any offensive or prohibited weapon, replica or dangerous article.
34.Disclose and provide reasonable details of your activities, movements and the associations you come into contact within the community, to a CCO when reasonably requested by that CCO.
35.Not assault, threaten, insult, or behave in an intimidating manner to a member of the Departmental staff or any agent providing a service on behalf of the Department of Justice.
Medications/Mental health
36.Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of re-offending and compliance with treatment to the Department of Justice.
37.Permit any medical practitioner or medical practitioners to immediately advise a CCO if they become aware or suspect that you have ceased, or intend to cease, undergoing pharmacotherapy or pharmaceutical treatment contrary to the advice of the medical practitioner or medical practitioners, or you have apparently ceased to consult with that medical practitioner or medical practitioners on such treatment (Next step treatment intended to be captured by this condition).
Liberty to apply
38.The respondent has liberty to apply to the Court within 7 days, giving 24 hours' notice to the applicant.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KB
Associate to the Judge
26 APRIL 2023
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