The State of Western Australia v Misko [No 8]
[2023] WASC 460
•30 NOVEMBER 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MISKO [No 8] [2023] WASC 460
CORAM: TOTTLE J
HEARD: 21 FEBRUARY, 30 JUNE, 29 SEPTEMBER, 1 & 29 NOVEMBER 2023
DELIVERED : 29 NOVEMBER 2023
PUBLISHED : 30 NOVEMBER 2023
FILE NO/S: SO 2 of 2012
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
JOHN TERRY MISKO
Respondent
Catchwords:
Criminal law - Contravention proceedings - Application made under s 53 and s 55 of the High Risk Serious Offenders Act 2020 (WA) - Whether the respondent will substantially comply with requirements of the supervision order - Whether the supervision order should be rescinded, affirmed, or amended - Turns on own facts
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Result:
Supervision order affirmed and amended
Category: B
Representation:
Counsel:
Applicant : D S McDonnell Respondent : D J McKenzie Solicitors:
Applicant : State Solicitor's Office (WA) Respondent : David McKenzie Legal Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v Hart [2019] WASC 4
Director of Public Prosecutions (WA) v Misko [No 4] [2016] WASC 4
Western Australia v Yates [No 3] [2021] WASC 382
TOTTLE J:
Introduction
1The proceedings to which these reasons relate are contravention proceedings brought by the State of Western Australia against the respondent under s 53 of the High Risk Serious Offenders Act 2020 (WA) (the Act)).[1] The respondent is a high risk serious offender under the terms of the Act. He is presently in custody pursuant to an interim detention order made on 12 August 2022 under s 53(2)(b) of the Act. These reasons explain why I have concluded that the respondent should be permitted to live in the community subject to the terms of an amended supervision order notwithstanding his contraventions of the conditions of an earlier supervision order.
[1] The application was filed on 12 August 2022.
Overview
2Between 5 July 2012 and 18 May 2021 the respondent was the subject of a continuing detention order made under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) (the DSO Act was repealed and replaced by the Act).
3The continuing detention order was affirmed on review on five occasions. On the sixth review (undertaken pursuant to the transitional provisions of the Act) I rescinded the continuing detention order and made the respondent the subject of a supervision order for a period of 10 years from 18 May 2021.
4Between December 2021 and July 2022 the respondent contravened various conditions of the supervision order on many occasions. In July and August 2022 he pleaded guilty to 11 offences of contravening the supervision order contrary to s 80 of the Act. In December 2022 he pleaded guilty to a further 38 contravention offences. Details of the contraventions and the penalties imposed are set out in appendix 2 of these reasons. Most significantly, on 9 February 2023 the respondent was sentenced to a total effective term of imprisonment of 10 months in respect of the 38 contraventions backdated to 12 August 2022. The custodial sentence came to an end on 11 June 2023 but the respondent has remained in custody pursuant to the interim detention order.
5As is apparent from his guilty pleas the respondent accepted that he had contravened the terms of the supervision order and I formally record that I am satisfied that those contraventions occurred.
6The hearing of the application was adjourned part heard on successive occasions. The primary reason for this extended process has been the desirability of deferring a final decision until it became clear whether suitable accommodation for the respondent could be found in the community.
7The State proposes that the supervision order be affirmed but that its terms be amended.
8In summary the following matters in combination have led me to conclude the respondent should be the subject of a supervision order though the terms should be amended as shown in the marked up version of the order in appendix 1:
(a)The effect of the psychiatric evidence adduced on this application is that the respondent can be managed in the community in a manner that ensures the adequate protection of the community.
(b)The respondent will receive considerable support under the National Disability Insurance Scheme (the NDIS) and the agencies responsible for the provision of that support have been working co-operatively to ensure the support is tailored to the respondent's particular needs and that appropriate professional relationships are developed between the members of the support team and the respondent. I am satisfied that those charged with supporting and supervising the respondent are alive to the shortcomings in the supervision and support that enabled the respondent to contravene the conditions of the earlier supervision order and will be vigilant to ensure that there is no repetition of the respondent's contravening conduct.
(c)Suitable accommodation has been found for the respondent.
(d)The sentence of imprisonment the respondent has served for the contravention offences is likely to deter the respondent from further contraventions.
The evidence
9The State tendered three volumes of documentary materials. Volume 1 includes a variety of materials relating to the respondent including prison records, medical records, reports and judgments from earlier proceedings. Volume 1 also contains the particulars of the respondent's contraventions of the supervision order. Volume 2 contains reports prepared specifically for the application comprising:
(a)a psychiatric report dated 24 January 2023 prepared by Dr Gosia Wojnarowska;
(b)a high risk serious offender treatment progress report dated 10 February 2023 prepared by Ms Joanne Collyer, a forensic psychologist; and
(c)a high risk serious offender performance report dated 15 February 2023 prepared by Ms Jennifer Sullivan, a senior community corrections officer (CCO) and the officer with primary responsibility for managing the respondent.
10The hearing of the application commenced on 21 February 2023. Ms Collyer and Ms Sullivan gave oral evidence and were cross‑examined. When Dr Wojnarowska prepared her report of 24 January 2023 she stated that she was only aware of '13 contravention convictions'. In fact, Dr Wojnarowska had regard to the 11 contraventions to which the responded pleaded guilty to in July and August 2022, in addition to:
(a)a further contravention offence to which the respondent pleaded guilty to on 24 March 2022 (MC PE 10091/2022); and
(b)the respondent's failure to comply with a direction contrary to s 86(1)(a) of the Emergency Management 2005 (WA) (MC PE 26935/2022)
11Dr Wojnarowska was not aware of the 38 further convictions. The hearing was adjourned to provide Dr Wojnarowska with the opportunity to undertake a further assessment of the respondent if she considered this necessary and to provide a further report setting out her assessment of the respondent having considered the circumstances of the further contraventions.
12At the request of the State on 21 February 2023 I made orders for Dr Wojnarowska to provide an addendum report pursuant to s 75 of the Act addressing the following topics:
(a)The reason or reasons why the respondent is not:
(i) seeking approval from his Community Corrections Officer (CCO) for females to enter his residential address;
(ii) reporting to his CCO the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship with any person; and
(iii) reporting any unsolicited interaction with females at his residential address.
(b) Dr Wojnarowska's views on the necessity of retaining conditions 35, 36, 37, 38, 39, 40 and 46 in the supervision order.
13Dr Wojnarowska prepared a report dated 14 June 2023 entitled 'Addendum report' addressing the topics referred to in the preceding paragraph. In addition, Dr Wojnarowska prepared a further report dated 20 June 2023 entitled 'Amendment' in which she commented on the facts giving rise to the further 38 contravention convictions. Though Dr Wojnarowska described this report as an amendment to the Addendum Report it did not amend any aspect of the earlier report and was supplementary to her report of 24 January 2023.
14Volume 3 of the documents contains Dr Wojnarowska's two June 2023 reports, the prosecution notices and the statements of material facts of the 38 further contravention offences.
15In addition to Ms Collyer and Ms Sullivan, Dr Wojnarowska and Ms Aimee Good (a team leader within the Community Offender Monitoring Unit (COMU)) gave oral evidence.
Respondent's serious sexual offending
16In Director of Public Prosecutions (WA) v Misko [No 4],[2] Fiannaca J summarised the facts of the respondent's history of serious sexual offending as follows:[3]
22The respondent has been convicted and sentenced for sexual offences committed on four occasions from 5 February 1993 to 1 January 1999.
23He committed the first sexual offence on 5 February 1993. He approached the victim, a 29-year-old woman, outside a nightclub in Northbridge, gained her confidence and offered her a lift home. He took her to an isolated carpark where he assaulted her violently and rendered her incapable of resistance. He then sexually penetrated her. He left the victim unconscious on the ground and stole her money. The respondent was not identified as the perpetrator of the offence until 1998 when his DNA profile was obtained and found to match the DNA profile of the offender, obtained from the victim in 1993.
24The respondent committed his second sexual offence on 14 or 15 May 1994. The respondent approached the victim at a nightclub. Despite her attempts to discourage him, the respondent followed the complainant home, where she allowed him in for a coffee. Expecting her flatmate to return and make the respondent leave, the complainant went to her bedroom. The respondent followed the complainant to her bedroom. She indicated to him that she was not interested in him. She then fell asleep and woke to find the respondent undressed and penetrating her vagina with his fingers. He tried to force the complainant to touch his penis and then tried to pull her underwear off. He then put his face against the complainant's groin. The incident ended when the complainant's flatmate arrived home. The respondent was dealt with for that offending in August 1995 when he entered a plea of guilty and was sentenced to 8 months' imprisonment (reduced from 2 years due to time already spent in custody).
25The respondent committed his third set of serious sexual offences on 13 August 1997. He approached the victim, a 21‑year-old woman, in Northbridge and befriended her. The victim was upset after having had a fight with her boyfriend. The respondent gained her confidence and offered her a lift home. He then took the victim to an underground carpark where he offered her money or drugs in return for sex. She refused. The respondent then drove the victim to Stirling where he stopped the vehicle and sexually assaulted her. He forced the complainant to masturbate him and perform fellatio upon him. He then penetrated her vagina both digitally and with his penis.
26The respondent committed the fourth set of offences on 1 January 1998. He approached a prostitute in Northbridge and arranged to pay her for sex. Instead, he took her to an abandoned building, kicked her in the head several times and then sexually penetrated and indecently assaulted her several times over a period of three hours. When the victim tried to escape, the respondent held a piece of glass to her face and threatened to cut her. He then stole money from the victim.
27It is apparent that the offences in 1997 and 1998 were committed after the respondent had served the term of imprisonment imposed in August 1995 for the 1994 offences.
28On 21 May 1999 the respondent was sentenced to a total effective sentence of 20 years' imprisonment for the offences committed on 5 February 1993, 13 August 1997 and 1 January 1998. The offences consisted of four counts of sexual penetration without consent, five counts of aggravated sexual penetration without consent, two counts of assault occasioning bodily harm, indecent assault, aggravated indecent assault, deprivation of liberty and stealing.
[2] Director of Public Prosecutions (WA) v Misko [No 4] [2016] WASC 4.
[3] Director of Public Prosecutions (WA) v Misko [No 4] [22] - [28].
Dr Wojnarowska's evidence
Dr Wojnarowska's report dated 24 January 2023
17Dr Wojnarowska's report of 24 January 2023 was based on her interview with the respondent on 28 December 2022 and her knowledge of the respondent's history. Dr Wojnarowska had assessed and reported on the respondent for the purposes of the application that resulted in the 2012 continuing detention order and for each subsequent review.
18Dr Wojnarowska reported that her diagnoses of the respondent were consistently that of Antisocial Personality Disorder and mild cognitive impairment. Dr Wojnarowska also assessed the respondent as having poor impulse control with notable frontal lobe impairment. Despite the respondent's cognitive impairment, Dr Wojnarowska noted that the respondent has 'sound ability to plan as evidenced by his grooming behaviour in relation to his sexual offences, his degree of cunningness in his generalised offending and more recently within the context of his contraventions'.
19The respondent told Dr Wojnarowska that he was angry at being returned to prison and believed that his breaches of his supervision order were not serious. The respondent displayed negative attitudes towards the COMU and the police, attributing a number of his breaches (such as being out past curfew and not being able to sell his paintings) to his CCO and the police. The respondent told Dr Wojnarowska that he had been doing well on the order as he was not drinking alcohol, using illicit substances, watching pornography and had no interest in sex.
20Dr Wojnarowska found that the respondent 'appeared not to accept or understand that he has breached his order conditions rather than 'rules' invented by his CCO' and that 'his insight into to the seriousness of his breaches was severely limited'.
21The respondent told Dr Wojnarowska that he had been engaging in psychological counselling with Mr David Summerton, the member of the Forensic Psychological Intervention Team, who had been providing counselling to the respondent, but they had both agreed not to continue as he was not making further progress. He added that he was attending counselling at St Jude's (a NDIS support provider) where he said he had been discussing his difficulties with adhering to the order conditions.
22The respondent stated that while in the community he entered into a relationship with a woman. He denied the relationship was sexual in nature but admitted that at times she stayed with him.
23The respondent stated he was romantically involved with a different woman. He contended that they were not engaged in any sexual activities and that she stayed at his residence for three to four weeks. The respondent occasionally bought her alcohol but denied purchasing it to facilitate her compliance.
24Dr Wojnarowska assessed the respondent using actuarial tools and structured clinical guides: the Static-99R instrument, the Hare Psychopathy Check-list - Revised (PCL-R), and the Risk for Sexual Violence Protocol (RSVP).
25Using the Static-99R Dr Wojnarowska assessed the respondent as having a score of six which placed him in the Level IVb - 'Well above average risk' with predicated recidivism of 5 years being 30.7% to 37% and in 10 years 42.8% to 52.3%. Dr Wojnarowska noted that because the Static 99-R instrument addresses historical risk factors and does not examine dynamic factors, the overall score is expected to match that of previous assessments.
26The respondent did not reach the threshold for psychopathy when assessed using the PCL-R instrument.
27Dr Wojnarowska found 16 out of the 22 risk factors specified in the RSVP were present or partially present in the respondent.
28Dr Wojnarowska's opinion was that the respondent remains at a high risk of engaging in serious sexual and non-sexual violence if not subject to the Act but that the respondent's risk could still be managed in the community. Dr Wojnarowska's opinion and recommendations were as follows:
Opinion
97.Taking into consideration my clinical assessment and the application of RSVP, PCL-R and STATIC99R, I am of the opinion that Mr Misko is at high risk of engaging in serious sexual and non-sexual violence if not subject to the relevant legislations under the HRSO Act.
98.In my opinion, Mr Misko's risk could still be managed in the community. He has a sufficient NDIS package and has demonstrated an ability to use it to his advantage, engaging in pro social activities. His breaches are related to his antisocial personality structure which features are likely to diminish in intensity with Mr Misko's advancing age. After his release from prison, it was evident that his connections with the community grew stronger, but at the same time his previous life style of engaging in brief relationships with vulnerable women started to emerge placing him at risk of reoffending. It appears that the conditions of the order have been strong enough to protect community.
Recommendations
99.Treatments
Mr Misko was engaged in individual psychological counselling which has ceased by the agreement of Mr Summerton and Mr Misko who is now engaged in counselling at St Jude's. I understand that there is a communication line between his Counsellor and COMU [Community Offender Monitoring Unit]. Additional group treatment is not recommended. Mr Misko should continue with his current medication regime supervised by his GP.
100.Community Supervision
Mr Misko's current NDIS package is sufficient to provide him with adequate support, supervision, and access to the community activities.
101.The curfew restriction hours may be subject of a review in the future when Mr Misko's adherence to his order conditions is considered satisfactory. Diary requirement could also be reviewed, given that some of the reports suggest that Mr Misko is illiterate. St' Jude's counsellor's reports on Mr Misko's progress should be regularly communicated to COMU. I support the other conditions of his order.
Dr Wojnarowska's amended report dated 20 June 2023
29Dr Wojnarowska's amended report of 20 June 2023 was based on her review of the circumstances of the 38 contravention convictions for which the respondent was sentenced on 9 February 2023.
30Dr Wojnarowska reported that the respondent's behaviour in the community and subsequent contraventions were consistent with her previous formulation of his risk. Dr Wojnarowska considered there was no need to reassess the respondent and her opinion regarding the respondent's suitability to be managed in the community had not changed. Dr Wojnarowska noted, however, that while there was no evidence that the respondent had behaved inappropriately towards the women he had befriended, the respondent was experiencing at least moderate levels of sexual interest as is expected of a man of his age (he will be 55 years of age in December 2023).
31If a supervision order were granted, Dr Wojnarowska expected the respondent to reengage in psychological intervention with the focus being on the management of his sexual drive. Consideration could also be given to the respondent commencing antilibidinal treatment, with a trial of SSRI (selective serotonin reuptake inhibitor) medication possibly assisting in the respondent's compliance with a supervision order.
Dr Wojnarowska's addendum report dated 14 June 2023
32Dr Wojnarowska's addendum report of 14 June 2023, as noted at [12], addressed the following topics:
(a)The reason or reasons why the respondent is not:
(i) seeking approval from his CCO for females to enter his residential address;
(ii) reporting to his CCO the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship with any person; and
(iii) reporting any unsolicited interaction with females at his residential address.
(b)Dr Wojnarowska's views on the necessity of retaining conditions 35, 36, 37, 38, 39, 40 and 46 in the supervision order.
33Dr Wojnarowska stated that the respondent's behaviour of non‑disclosure was consistent with his Antisocial Personality Disorder characterized, among other symptoms, by a disregard for societal norms and laws. Therefore, despite being fully aware of his obligations, at times he chooses to conceal his behaviour to achieve what he plans to do. The respondent also previously reported to Dr Wojnarowska that he would like to build friendships without disclosing his history of offending. There is also a possibility that the respondent may be concerned that permission to have casual relationships would be refused.
34In addressing point (b), Dr Wojnarowska opined that all the order conditions noted are necessary to manage the respondent's risk. Dr Wojnarowska proposed that condition 39, which prohibits the respondent from entering premises of, or accessing the services of, escort agencies or sex workers, should be amended to allow the respondent to engage with an approved escort or sex worker identified and approved by his CCO.
35Dr Wojnarowska gave oral evidence at the hearing on 30 June 2023 that was consistent with the views that she had expressed in her reports.
36I accept Dr Wojnarowska's evidence.
Ms Collyer's evidence
37Ms Collyer assessed and interviewed the respondent on 28 November and 5 December 2022 for a total of four hours.
38Ms Collyer summarised the respondent's treatment history, treatment in the community and behaviour during his current imprisonment.
39Ms Collyer described the respondent's demeanour during her two interviews as markedly different. Ms Collyer described the respondent's demeanour in the first interview as somewhat agitated and he spent a good deal of time explaining his view that he had not been adequately supported. During the second meeting, Ms Collyer described the respondent as notably despondent with fewer defiant statements. Ms Collyer reported that at each interview meeting, the respondent's 'narrative retained a simplistic quality' and that he was unable or unwilling to provide direct or substantial responses to the questions posed by her.
40Ms Collyer reported the respondent viewed managing his risk as unpalatable and struggled to understand the different roles of his risk management team and NDIS workers. The respondent gravitated towards individuals sympathetic to his position and when his requests are not met, he slips into resentment, dishonesty and avoidance type behaviours.
41Ms Collyer reported the respondent is focused on externalising blame and had difficulties in accepting responsibility for his behaviour. While he has shown a willingness to engage in counselling, his willingness to do so in a meaningful capacity remains questionable.
42Ms Collyer's opinion and treatment recommendations were as follows:
TREATMENT PROGRESS
23.Overall, Mr Misko was unable to provide an account of treatment or areas that would have been useful to discuss. Mr Misko did view clear communication as an important future focus, though was unable to provide clear areas for discussion relevant to risk mitigation. Mr Misko tended to focus on discussing activities that did or did not occur, externalising blame to his supervising officer and expressing he needed more support than he received.
24.Mr Misko's discussion of the relationship with his NDIS workers appeared overfamiliar. This is congruent with the manner Mr Misko had previously discussed prison staff he had viewed as supportive. Mr Misko typically gravitates toward people who he views sympathise with him and who are less likely to challenge his narrative. This relates to his difficulty acknowledging wrongdoing and the idea that he needs to manage risk. Mr Misko's experienced frustration when his requests were not met reflect his lack of capacity or willingness to understand the risk or administrative issues related to his requests and instead view it as a personal affront, reflecting a somewhat entitled stance. This appeared to result in increased resentment, dishonesty and failure to adhere to the conditions of his Order. His unwillingness to discuss sexual partners, even when directly questioned highlights his preference to edit information he is aware will require exploration and consideration. Mr Misko did not appear to have had the willingness to acknowledge he had risk issues to manage. For example, he was unable to view the boundary transgressions of attending a support workers football game, having alcohol in his house or having a female in his house unauthorised from a risk lens. Mr Misko's stance in regard to not writing in his diary demonstrates his somewhat egoist focus, instead of acknowledging wrongdoing he boldly stated it was 'a waste of time' as they always knew where he was anyway.
25.It was evident that Mr Misko had confused the role of the risk management team and NDIS worker(s). He struggled to view that the role of COMU or SOMS is to support him to engage on his order and mitigate risk. As opposed to the role of a support worker that do not have the direct role of managing risk. In general, managing risk appeared to be unpalatable to Mr Misko and not congruent with the image of himself he wished to present. Thus, he has distorted what he viewed was 'unhelpful' and 'not supportive' from his SCCO and not disclosed important information to his treating psychologist. Instead, Mr Misko gravitated toward his support workers where he could portray a distorted narrative focusing on how the Department were unreasonable in the face of his requests and subsequently generate a sympathetic response.
26.It is notable that Mr Misko sought to see Mr Summerton following his earlier contravention. This reflects Mr Misko's tendency to overplay his need for help in retrospect to getting into trouble, rather than accepting his wrongdoing. It did not, however, result in Mr Misko discussing meaningful content toward risk mitigation.
27.Overall, it appeared that Mr Misko continued to display ongoing antisocial thinking as reflected by his refusal to disclose clear risk relevant behaviours. Mr Misko tends toward a fixed idea about what outcomes he wants, creates a narrative around this and appeared to disregard the Order conditions despite his understanding he was doing so. Further, he struggles with what he views are critical responses, when his requests are not met or he receives a warning, and then slips into resentment, dishonesty and avoidance type behaviours.
28.The characteristics that Mr Misko displayed during his time in the community on a HRSOSO are not incongruent with behaviour displayed in the custodial environment. Mr Misko can engage in a friendly and affable manner. However, it tends to be superficial and focused on impression management. He has a concrete thinking style and lacks capacity to think flexibly. He has learned behaviours, likely for many years, of externalising blame or presenting as the aggrieved party, not coping/ at risk of self harm when he perceives things are not going his way or he gets into trouble. He overstates relationships, is overfamiliar and gravitates toward individuals he views are sympathetic to him and who are less likely to challenge him. His discussion of risk scenarios is limited, and despite likely influence of his concrete thinking is also reflective of his desire to avoid focus on a topic that portrays him in less positive light.
29.Mr Misko's behaviour in the community contrasts with his stated plans pre-release to avoid alcohol, and his understanding that intoxication can limit an individual's capacity to provide consent. Mr Misko had long maintained that his offending behaviour was historical and not relevant to his current age or sobriety. His recall of participation in the ISOTP continued to be limited. A lack of insight regarding his risk factors is somewhat enduring, and appears to have maintained, despite the movement to the community. Positively, Mr Misko engaged with his support workers and undertook pro-social activities. However, his reluctance to discuss issues of importance related to risk is concerning. Particularly given he is focused on externalising blame and had clear difficulty accepting responsibility for his behaviour. Mr Misko stated a willingness to engage in counselling, however his capacity to do so in a meaningful manner remains questionable.
FUTURE TREATMENT
30.Mr Misko would benefit from exploring his cognitive distortions, problematic decision making and engagement in behaviours that were known risk factors and/ or were in clear defiance of his order conditions. It would also be useful for Mr Misko to explore his pattern of resentment, secrecy and difficulty exploring or viewing his potential for wrongdoing or poor choices. Mr Misko has a tendency toward avoidance behaviours that reflect his significant difficulty tolerating discomfort related to how he is perceived. He has a firm narrative focused on spotlighting his achievements and deflects criticism by blaming others for their lack of support or portraying himself as helpless. These behaviours are entrenched and likely automatic, learned responses and defence mechanisms.
31.Notwithstanding the noted treatment areas, Mr Misko will not benefit from further psychological intervention until such time he is able and willing to discuss issues pertinent to his risk. An important precursor to this will involve Mr Misko moving away from externalising blame, toward a greater capacity to discuss his problematic, antisocial choices and clear flouting of known order conditions. This would mark a significant shift from entrenched impression management and characterological features. It is noted that Mr Misko has received a significant concentration of therapy with little shift in this issue despite persistent effort.
32.Support for Mr Misko to participate in pro-social activities remains an important component of any future Community Order. However, Mr Misko would benefit from a clear understanding of the difference between the role of support workers and the risk management team. Ongoing collaboration between NDIS support staff and the RMM team is recommended for transparent communication and to minimise Mr Misko providing diluted or misleading information.
CONCLUSIONS
33.Mr Misko has enduring personality characteristics, a lack of psychological flexibility and tendency toward avoidance behaviours. Progress in treatment in the community was not made due to Mr Misko's clear unwillingness to discuss relevant issues. Mr Misko's secrecy, externalisation of blame and refusal to accept responsibility are somewhat enduring behaviours. Such personality characteristics are not uncommon for an individual with a lengthy period of institutionalisation. Mr Misko's concrete thinking, cognitive limitations and difficulty with perspective taking exacerbates these difficulties along with his somewhat egotistical viewpoint.
34.Ongoing treatment of Mr Misko would be determined by an assessment of his readiness to engage more meaningfully. Should Mr Misko meaningfully engage, exploring his dishonesty behaviours in the community, impression management, tendency to externalise blame, recourse to eliciting sympathy when he has engaged in wrongdoing and discussing risk scenarios would benefit. The treatment could usefully occur in the detention or community setting based on a positive outcome of that assessment. Ideally the intervention would occur with Mr Misko's existing FPIT psychologist who is familiar with Mr Misko's personality features and has an established positive rapport.
35.The environmental and behavioural management of Mr Misko remains paramount. In the community, Mr Misko would benefit from transparent communication between support workers and the risk management team. It is unlikely that Mr Misko would manage a diary condition in an authentic manner. He may benefit from clear and projected activities that highlights the importance of planning and decision making.
36.Should Mr Misko remain in a custodial setting, clear boundaries from custodial or other involved staff are important components of mitigating regression to the former dependant relationships Mr Misko developed in that setting. Additionally, awareness and clarity from staff to interrupt Mr Misko's narrative around helplessness or externalised blame toward greater personal accountability would benefit. Progression to a lower security prison where there is greater independence and decision making toward improved capacity for returning to the community in the future is recommended.
43At the hearing on 21 February 2023, Ms Collyer stated the respondent did not go into full details of the further 38 contraventions but was fairly clear that he did not want to disclose his association with females to his CCO as he did not want the females to be aware of his history in fear of rejection. The respondent was also fearful that any proposed association with a female would be rejected by his CCO.[4] In cross‑examination, Ms Collyer stated the respondent's unwillingness to disclose things may be attributed to his entrenched behaviours from his institutionalisation over a number of years.[5]
[4] ts 522.
[5] ts 522.
44I accept Ms Collyer's evidence.
Ms Sullivan's evidence
45Ms Sullivan has been the respondent's case manager since 21 January 2022. She reported:
(a)The respondent was always talkative in supervision and, on the surface, appeared to engage well. She stated he would present his mobile telephone for review at each session and, apart from some authorised absences due to illness, he reported as directed. In March 2022, however, it was discovered that the respondent had deleted a string of Short Messaging System (SMS) messages from his mobile telephone. The deleted messages were communications between the respondent and a woman he had formed a relationship with that he had not disclosed. The discovery of the deleted SMS messages led to the discovery of other breaches of the supervision order.
(b)The respondent's engagement with Mr Summerton who provided counselling to the respondent, was as follows:
Mr Misko's engagement with Mr Summerton typically began with a declaration that he was doing well and had no issues, but would then progress to complaints about his SO conditions and his SCCO, who he blamed for the contraventions coming to light. Mr Misko was noted to make statements that were untrue but would remain adamant, when challenged, indicating his lack of truthfulness and willingness to exaggerate and outwardly lie about things which served no purpose. An example of this was when he saw Mr Summerton after a period when he was remanded in custody (on 30/03/2022). He told Mr Summerton that a 500 bed hospital had been built at Casuarina Prison for COVID‑19 cases and that he had lost 60 kilograms while on remand for eight days. Mr Summerton made comments in his case notes that, given Mr Misko could present and insist upon unbelievable information with such ease, his mistruths about himself and his activities would likely appear tame in Mr Misko's mind.
(c)The respondent was originally housed in accommodation provided by his NDIS funding. Ms Sullivan explained in her oral evidence that her understanding was that the NDIS funding for accommodation had been withdrawn because the respondent made a choice to utilise his funding for support workers rather than accommodation. Parenthetically, I record that the respondent's funding under the NDIS was increased to allow for support workers to visit him seven days per week but that was not occurring at the time he was returned to custody. When the respondent's NDIS funded accommodation was no longer available the COMU secured accommodation for the respondent under the Uniting WA HRSO Supported Accommodation Program. The respondent obtained a tenancy of a property on 29 June 2022 in which he remained until 11 August 2022. The respondent's engagement with Uniting WA was described as horrendous because the respondent cancelled and rescheduled meetings and avoided home visits from Uniting WA staff. The respondent accumulated rent arrears and the property was described as being in a sub-standard condition when he was taken into custody.
(d)Uniting WA will not be offering further accommodation to the respondent. If he is released the respondent will be dependent on the existence of NDIS funded accommodation or the private rental market.
(e)The respondent provided a total of 26 samples for urinalysis while subject to the supervision order. Twenty-four were negative to all illicit substances, while two were positive to benzodiazepines, which had been prescribed to the respondent. The samples were 'random' samples.
(f)The respondent kept in contact in the community with his mother, an aunt and one of his two brothers. The respondent complained that he was not allowed to spend nights or weekends at his mother's address. Ms Sullivan reported that this was because the respondent's mother resided in an all female 'seniors complex'.
(g)It appears that the respondent had 'managed to groom and manipulate his [NDIS] support workers into believing he was no risk and unfairly treated by the Department of Justice'.
(h)The respondent had an ongoing plan for funding via the NDIS. This was put in place from 20 May 2022 and extends until 19 May 2024, comprising of $268,275.56 of support - core support (four hours per day seven days per week), transport, capacity building supports and support coordination.
(i)Following his return to custody the respondent repeatedly refused to engage with her and the COMU Team Leader. Ultimately Ms Sullivan was able to interview the respondent over the telephone on 15 December 2022.
(j)The requirement imposed on the respondent by the direction to maintain a daily diary was intended to identify those people with whom the respondent was associating. Ms Sullivan had the following to say in relation to the diary requirement:
If Mr Misko is re-released to his SO, he would continue to be subject to GPS monitoring. GPS tracking, including the use of GPS exclusion zones, can be utilised to monitor and prohibit attendance at high-risk areas. However, while GPS tracking can be utilised to identify patterns in Mr Misko's movements, there are limitations as it does not indicate who he is associating with or what he is doing. This is where a daily diary of his interactions would be useful; however, Mr Misko complains that his low level of literacy makes this too difficult for him. Diary entries that he has made previously are easily understood and do not require a great deal of literacy, but it appears Mr Misko is using his illiteracy as an excuse not to record information he does not want anyone to know about. On one occasion Mr Misko was directly asked what he does and who he speaks to when he attends the Gosnells Markets so frequently. He replied that he eats in the food hall and keeps to himself, speaking to nobody. As part of Police investigations regarding his contravening behaviours, it has come to light that a large number of stall holders at this market are familiar with Mr Misko, who chats to them all regularly. Mr Misko was capable of making several entries in his diary which read 'Gosnells Markets,' but he failed to include who he was interacting with, despite constant prompting and reminding. Dr Wojnarowska has raised concern with a diary condition. Typically, if part of a SO the diary is not for the entire period of the SO. Therefore, alike to its implementation via WLI for Mr Misko (to confirm the direction under condition 45 of his HRSO SO), the addition of this condition would be used for risk management and to be a way to assist Mr Misko to comply with other conditions - disclosure of relationships and associations. Condition 45 has therefore been amended below to ensure Mr Misko is aware the Court supports the use of a diary in this manner.
(k)At the hearing, Ms Sullivan added the following observation concerning the insertion of condition 45, a diary requirement, to a proposed supervision order:[6]
Now, I understand from your report – and also from Dr Wojnarowska's own report that Dr Wojnarowska has got some concerns about Mr Misko complying with the condition like the proposed condition 45; any comment to make?---People's concerns around this tend to relate to Mr Misko's level of literacy and, having supervised him and checked his diary on a number of occasions, it's simply not an issue. He may not be able to spell something correctly, but it's decipherable.
Yes. Okay?---He – in my opinion, he is capable.
Sorry, say again, please?---In my opinion, he is capable of maintaining a diary.
[6] ts 527.
46I accept Ms Sullivan's evidence.
Non-compliance with Supervision Order additional to the contravention offences
47In an affidavit affirmed on 11 August 2022 Ms Jodii Nichols, a senior Community Corrections Officer based at the Community Offender Monitoring Unit responsible for the case management of the respondent, set out details of contraventions by the respondent of the supervision order that had not resulted in criminal charges as follows:
9. Contraventions to date resulting in actions other than a formal charge:
Between 18 May 2021 and 11 August 2022, the Respondent has contravened his HRSO Supervision Order conditions by;
1)20 May 2021: The Respondent entered an exclusion zone put in place for victim protection (south east metropolitan area) on two occasions, the first one being between 0754 and 0759, and the second one being between 1054 and 1056. The Respondent stated his support worker was driving him at the time. A verbal warning was issued.
2)16 October 2021: The Respondent entered the same zone noted above between 1217 and 1224. He explained he had been attending a fast food restaurant on the outer border of the zone and was not aware this was included in the zone. A verbal warning was issued.
3)11 November 2021: The Respondent entered the same zone noted above between 0938 and 0948. The Respondent was attending a recycling centre and did not notice his vibration alerts (GPS anklet). A written warning was issued.
4)22 November 2021: The Respondent entered an exclusion zone put in place to reduce the likelihood of contact with persons using alcohol in the Perth Central Business District Ares between 1504 and 1505 without a valid reason. A written warning was issued.
5)03 December 2021: The Respondent attended an address in Bunbury between 1357 and 1451, which belonged to an adult female. The Respondent did not seek or receive permission for this to occur. A written warning letter was issued.
6)09 March 2022: SOMS officers discovered two of the Respondent's artworks for sale in a shop where he purchases clothing. Previous discussion had been held with the Respondent whereby the sale of paintings being considered employment, and therefore requiring approval, was discussed. A written warning letter was issued.
7)26 March 2022: The Respondent entered two exclusion zones, at 1028 and 1031, while catching a replacement bus during a train line outage. A verbal warning was issued.
8)26 July 2022: The Respondent incurred a Home Unit Tamper and Power outage alert (compromising his GPS tracking) between 1146 and 1147. A verbal warning was issued.
48Ms Nichols outlined aspects of the respondent's behaviour when he was the subject of the supervision order that was of concern. This included: deceiving his supervision team; establishing relationships with vulnerable women; disengaging with reintegration supports; and behaviours increasing the likelihood of participating in risk scenarios. Ms Nichols deposed:
11.In February 2022, Uniting WA raised concerns that the Respondent was frequently rescheduling appointments and cancelling home visits with the service. The Respondents accommodation is provided by Uniting WA who hold the contract with the Department of Justice to facilitate the HRSO Supported Accommodation Program.
…
13.On 28 July 2022, an unscheduled visit was conducted to the Respondent's home address at 1603 hours. Attending Officers knocked on the Respondents doors and windows, called his mobile phone which could be heard ringing inside the home, and sent vibration alerts to his GPS transmitter. It was noted that the GPS system placed him within range of his GPS beacon, meaning he was in the home. After 17 minutes of attempting to contact the Respondent he eventually answered the door at 1620 hours.
14.During that visit, a bottle of perfume, various other cosmetic items and female clothing (a bra and a pair of underwear) were sighted in the living room. When questioned about the items, the Respondent claimed he was collecting the items with the intention of giving them to his girlfriend who resides in Northam. The Respondent repeatedly told the attending staff that he did not have anyone staying at the property. He was also noted to block their access to the kitchen and other areas of the house. Photos of the cosmetics and clothing were taken by the attending Officers. A medication slip was also sighted in the name of [TJ]. SOMS conducted a search the following day and were unable to locate those items, although they did locate further evidence of a female having been at the property. According to a Statement provided by [OS] to SOMS on 10 August 2022, she stopped sleeping at the Respondent's address approximately six weeks ago because [TJ] moved in.
15.When the Respondent was asked about his relationship with [TJ] during a scheduled supervision session on 29 July 2022 he stated, 'She's a very good friend of mine'. He then claimed that [TJ] had relocated to Queensland. On 11 August 2022, SOMS located evidence of a Facebook account (an account which the Respondent has failed to disclose, which has resulted in further investigations being presently undertaken by SOMS). The account is 'friends' with a profile for [TJ] and [OS].
16.On 04 August 2022 upon arresting the Respondent for Diary omissions related to the above, SOMS located a second mobile phone which the Respondent attempted to secrete. He has refused to provide the PIN for this device.
17.According to a statement provided to SOMS by [OS], she first met the Respondent in early December 2021 at Mciver Train Station. The Respondent failed to report the formation or development of this relationship to his CCO until questioned about the relationship on 29 July 2022.
18.SOMS are continuing to conduct investigations into the Respondent's relationships in the community, in particular women and relationships during which he may have had access to alcohol. [TJ] and [HJ] were spoken to by SOMS on 9 August 2022, they confirmed they have stayed at the Respondent's address and have consumed alcohol in his presence, [HJ] to the point of blacking out. [TJ] and [HJ] were not able to give statements as they presented unfit due to their associated alcohol issues and vulnerabilities.
19.An adult male has also been identified by SOMS as potentially providing the Respondent home made alcohol. Investigations continue to attempt to locate and gain a statement from this individual.
20.As at 11 August 2022, SOMS have information indicating that he may have had contact (undisclosed to his CCO) with the diagonal neighbour to his address [PM]. Her telephone number called the phone SOMS had in their possession when the Respondent was arrested earlier in August 2022. Investigations are ongoing.
49Ms Nichols was not called to give oral evidence. I accept the evidence set out in her affidavit. It is consistent with the account given by Ms Collyer and Ms Sullivan of the respondent's attitude to the supervision order and his engagement with those supporting and supervising him.
Ms Goode's evidence
50Ms Goode gave oral evidence at the hearings on 29 September, 1 November and 29 November 2023 about the steps taken to obtain accommodation for the respondent in the community and the provisional arrangements made to support the respondent if the supervision order were not rescinded.
51Dealing first with the question of accommodation, three significant points emerged from Ms Goode's evidence.
(a)The respondent has been on the Department of Community Housing waiting list for many years and he has now achieved 'turn reach' status which means that he may expect an offer of accommodation within one to 12 months. To be eligible for an offer of accommodation, the respondent must be living in the community. An offer will not be made to him if he is in custody.
(b)The support provider known as Vivid Care is holding accommodation available for the respondent. The accommodation has been assessed by the Western Australian Police and the Sex Offender Registry and, I am satisfied that the accommodation is suitable for the respondent. The accommodation is transitional accommodation and the intent is that it should be occupied by the respondent between his release and when he receives an offer of accommodation from the Department of Community Housing.
(c)There are concerns as to whether the respondent will have sufficient income on which to live after paying the rent that will be charged by Vivid Care. Ms Goode's evidence was to the effect that the respondent's financial position would be tight but manageable and that none of the agencies involved in supporting the respondent would recommend the accommodation to the court as suitable accommodation if it was thought that the respondent would go into occupation and make immediate default in respect of the rent.
52Turning to the question of support – the respondent is the beneficiary of substantial funding under the NDIS. There are a number of agencies who will be involved in providing care to the respondent if he continues to be the subject of a supervision order. The peak agency is the National Disability Insurance Agency (NDIA) and, in respect of the respondent, it is represented by Ms Kate O'Keefe, the respondent's Complex Support Needs Planner. The NDIA draws support from Sal Consulting who are 'positive behaviour support clinicians' and All Around Occupational Therapy. Arc Support Coordination is the organisation that acts as a special support coordinator. The core support providers are Vivid Care and CamCan. There have been a number of meetings between these agencies that Ms Goode attended.
53In summary, if the respondent is released into the community, he will receive six hours daily (face-to-face) support for a period of up to eight weeks following which it is anticipated that the level of support will reduce to four hours a day.
54Support workers from Vivid Care and CamCan visited the respondent while he has been in custody for the purpose of establishing a rapport with him. Indeed, at the hearing on 1 November 2023, 'the interagency team' requested that the respondent remain in custody for a further four week period to ensure rapport and relationship building and training with the NDIA clinical team. Unfortunately, the process of training carers and establishing a rapport with the respondent was disrupted by his ill health. On two occasions over the past four weeks the respondent was admitted to hospital as an inpatient with symptoms of a neurological disorder. To enable the preparations for the respondent's release into the community to be completed, the supervision order will only come into effect on 5 December 2023.
55The support workers will assist the respondent in obtaining financial support to ensure he is able to manage his rental obligations to Vivid Care and support himself.
Behaviour in prison
56From 18 May 2021 to 28 November 2022 the respondent has been involved in one non-critical incident at Hakea Prison.[7]
[7] Exhibit 1, p 42.
57The background of the incident is as follows: on 12 August 2022 the respondent stated to officers that he knows he is going back to prison and advised that he wanted to go to Casuarina Prison. The respondent was advised that he was probably going to Hakea Prison first. The respondent stated that if he goes to Hakea Prison that he will do something stupid. While being escorted back to custody, the respondent stated that he is going to 'punch on with the officers at Hakea Prison'. The respondent returned to his cell without incident.[8]
[8] Exhibit 1, p 44.
St Jude's behaviour support letter
58In a letter dated 2 August 2022, Ms Amy Bennett, the respondent's Behaviour Support Practitioner at St Jude's, provided the following information on the respondent's engagement with St Jude's and his overall behaviour:[9]
[The respondent] has been consistent with engaging in services, and has at all times informed the practitioner if he has been unable to attend due to health concerns such as medical appointments or Covid-19. [The respondent] has been observed throughout sessions to be motivated to adhere to restrictions and avoid future incarceration. It was however established that his disability can impact his ability to follow restrictions, such as difficulty remembering places he can and cannot visits, as well as on occasion forgetting to log his movements in his diary, as well as the detail that Senior Community Corrections Officer, Ms Jennifer Sullivan, has requested.
[9] Exhibit 1, p 165.
Findings
59Taken together the evidence of Ms Collyer, Ms Sullivan and Ms Nichols accurately reflects the respondent's engagement with, and failure to comply with, the conditions of the supervision order. I accept the opinions expressed by Dr Wojnarowska about the capacity to manage the respondent in the community and I accept the opinions expressed by Dr Wojnarowska and Ms Collyer about the respondent's need for treatment and support if he is to live in the community under the terms of a supervision order. I make findings in accordance with the evidence to which I have referred. It follows from this that, though I do not doubt that Ms Bennett's letter accurately set out her impression of the respondent's engagement with the support services, in so far as it creates the impression that the respondent was trying to observe the conditions of the supervision order, it is not an accurate impression.
60I accept Ms Goode's evidence and find that the accommodation she has referred to in her evidence will be available to the respondent and that he will receive the support she has described if he is permitted to live in the community.
Section 55 of the Act and applicable legal principles
61The provisions under the Act in relation to contravention proceedings are materially the same as the provisions under the now repealed DSO Act. For this reason, the principles established by the authorities in relation to the DSO Act may be applied to the Act.
62Section 53 of the Act specifies the circumstances in which the applicant may apply for an order under s 55.
63Section 55 is as follows:
(1)If, on the hearing of an application under section 53, the court is satisfied on the balance of probabilities that the offender to whom the application relates has contravened or is contravening a condition of a supervision order, the court must -
(a)rescind the supervision order and make a continuing detention order in relation to the offender; or
(b)except as provided in section 29, make an order amending the conditions of the supervision order, or extending the period for which the offender is to be subject to the supervision order, or both; or
(c)except as provided in section 29, make an order affirming the supervision order without amendment or extension.
(2)If, on the hearing of an application under section 53, the court is satisfied on the balance of probabilities that the offender to whom the application relates is likely to contravene a condition of a supervision order, the court must -
(a)rescind the supervision order and make a continuing detention order in relation to the offender; or
(b)except as provided in section 29, make an order -
(i)amending the conditions of the supervision order; or
(ii)amending the conditions of, and extending the period for which the offender is to be subject to, the supervision order.
(3)In deciding which order to make under subsection (1) or (2), the paramount consideration is to be the need to ensure adequate protection of the community.
64The respondent, given that he is subject to the supervision order, is an 'offender' to whom the application relates within the meaning of s 55.
65The references in s 55 to a 'continuing detention order' are references to 'an order that the offender be detained in custody for an indefinite term for control, care, or treatment'.[10] The references in s 55 to a 'supervision order' are references to 'an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate, in accordance with s 30'.[11]
[10] High Risk Serious Offenders Act 2020 (WA) s 26(1).
[11] High Risk Serious Offenders Act 2020 (WA) s 27(1).
66Section 29 provides:
(1)A court cannot make, affirm or amend 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, affirmed or amended.
(2)The onus of proof as to the matter described in subsection (1) is on the offender.
(3)This section does not apply to the making of an interim supervision order.
67The term 'standard condition' is defined in s 3 of the Act to mean, in relation to a supervision order, a condition which under s 30(2) of the Act must be included in the order. Section 30(2) provides:
(2)A supervision order in relation to an offender must require that the offender —
(a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender's current name and address; and
(b)report to, and receive visits from, a community corrections officer as directed by the court; and
(c)notify a community corrections officer of every change of the offender's name, place of residence or place of employment at least 2 days before the change happens; and
(d)be under the supervision of a community corrections officer and comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32); and
(e)not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and
(f)not commit a serious offence during the period of the order; and
(g)be subject to electronic monitoring under section 31.
68Therefore, the effect of s 29(1) and s 29(2) of the Act is that the offender must satisfy the court on the balance of probabilities that he will substantially comply with the standard conditions set out in s 30(2) before the court can amend or extend a supervision order, or do both, pursuant to s 55(1)(b) or affirm a supervision order pursuant to s 55(1)(c).
69For the court to be satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions of a supervision order, it must be satisfied that the offender will comply with the standard conditions in a manner and to an extent that is consistent with, and will enable, the attainment of the general object of the supervision order and the Act, namely the adequate protection of the community by the management and the mitigation of the offender's risk of committing a serious offence.
70Even if the court is satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions set out in s 30(2), this will not necessarily mean that a supervision order should be amended, extended or affirmed. This is because by reason of s 55(3) the paramount consideration, in deciding whether to make an order under s 55(1), is the need to ensure the adequate protection of the community. Accordingly, even if the court is satisfied that an offender will substantially comply with the standard conditions of a supervision order, there may be circumstances in which, despite such a finding, the court is not satisfied that releasing the offender on a supervision order will ensure the adequate protection of the community.[12]
[12] Western Australia v Yates [No 3] [2021] WASC 382 [22] - [30].
71In this case there is no doubt that the respondent has contravened the conditions of the supervision order and the court is required to make an order under s 55 (1).
Assessment factors
72In Director of Public Prosecutions for Western Australia v Hart,[13] Fiannaca J considered the meaning of 'substantially comply' in relation to the provisions of the DSO Act. His Honour identified the following factors to consider in relation to the meaning of 'substantially comply':[14]
[13] Director of Public Prosecutions (WA) v Hart [2019] WASC 4.
[14] Director of Public Prosecutions (WA) v Hart [20] - [52].
1.the offender's attitude to the conditions of the supervision order (in particular whether he is likely to deliberately flout the conditions);
2.his capacity to comply with the conditions;
3.what measures there are in place to ensure he would substantially comply;
4.the relative importance of any breach that might occur, in terms of the impact it would have on the practical effect of the supervision order in achieving the objects of the DSO Act;
5.the respondent's motivation to remain offence free and in the community;
6.any willing participation in a sex offender treatment programme;
7.abstinence from drugs;
8.conduct while in prison; and
9.demonstrated gains in treatment, self-management and life skills.
73His Honour made a number of general observations concerning the assessment of prior contraventions which are useful to set out below:[15]
(a)the fact that the respondent has contravened the conditions of a supervision order will not necessarily result in a continuing detention order;
(b)given the onerous nature of supervision orders, missteps are to be expected; and
(c)the frequency or regularity of contraventions might inform the question of whether the person will substantially comply.
[15] Director of Public Prosecutions (WA) v Hart [21], [36], [51].
74Even if I am satisfied that on the balance of probabilities the respondent would substantially comply with the standard conditions, in deciding whether to rescind the supervision order and make a continuing detention order or affirm the supervision order, I remind myself that the paramount consideration is the need to ensure the adequate protection of the community.
Reasons for affirming and amending the supervision order
75The first issue to be addressed is that raised by s 29 of the Act, namely, whether I am satisfied, on the balance of probabilities, that the respondent will comply with the standard conditions of the supervision order as made, affirmed or amended. In light of the respondent's contraventions this is a difficult question. The following matters bear on the question:
(a)Only two of the contravention offences involved breaches of the standard orders. Those breaches were constituted by a failure by the respondent to comply with directions from his CCO to maintain a daily diary.
(b)Before his release on the supervision order the respondent had been in custody for 21 years. For nine of those years the respondent was the subject of a continuing detention order. Having regard to:
(i)Dr Wojnarowska's diagnosis that the respondent has an Antisocial Personality Disorder characterised by a disregard for societal norms and laws;
(ii)the length of time the respondent was in custody;
(iii)the difficulty understanding the nature and the purpose of the regime established by a supervision order that someone in the respondent's position is likely to have;
(iv)contraventions of the supervision order are not unexpected. More particularly, it was not unexpected that the respondent would attempt to conceal from those supervising him his attempts to establish both social and more intimate relationships with members of the community out of fear that if disclosed, such relationships would not have been permitted.
(c)The respondent has served a ten-month custodial sentence for the contravention offences. Cumulatively, the respondent has been in custody for nearly 16 months as a result of the contraventions. Even allowing for the respondent's mild intellectual impairment, this period in custody and the prospect of returning to custody in the event of further contraventions, will encourage the respondent to observe the conditions of the supervision order in the future.
76Reflecting on these matters I am satisfied that the respondent will substantially comply with the standard conditions of the supervision order.
77Other matters that bear on the issue of whether the supervision order should be affirmed or amended or both are as follows:
(a)The contraventions did not result in harm to any member of the community.
(b)The respondent has been abstinent from alcohol and drugs while in the community.
(c)The seriousness of the contraventions is not, however, to be minimised. The contraventions involved the respondent interacting with women who were vulnerable either because of their use of alcohol or because of their social situation. Moreover, the contraventions involved dishonest and manipulative behaviour on the respondent's part.
(d)The respondent's support workers and supervisors will have the benefit of the lessons learned from the respondent's attitude to, and engagement with, the supervision order in the period between May 2021 and August 2022. They will be alive to the symptoms of the respondent's Antisocial Personality Disorder and will be vigilant to ensure that there is no repetition of the respondent's contravening conduct.
(e)The NDIA and its support agencies have worked together to put in place a regime of intensive support for the respondent in the community and steps have already been taken to ensure that those directly involved in supporting the respondent have a rapport with him.
(f)Suitable transitional accommodation has been arranged for the respondent and there is a real prospect of the respondent being offered permanent accommodation by the Department of Community Housing.
(g)Dr Wojnarowska's opinion that the respondent may be managed in the community.
Conclusion
78I am satisfied that the supervision order made on 18 May 2021 and amended as shown in appendix 1 to these reasons will ensure the adequate protection of the community.
APPENDIX 1
_______________________________________________________________________
ORDERS MADE BY THE HONOURABLE JUSTICE TOTTLE
ON 29 NOVEMBER 2023_______________________________________________________________________
UPON THE APPLICATION of the Applicant for orders under sections 55(1)(b) and 55(2)(b) of the High Risk Serious Offenders Act 2020 (WA), and UPON HEARING Mr Daniel McDonnell of Counsel for the Applicant and Mr David McKenzie of Counsel for the Respondent IT IS ORDERED THAT:
1.The Applicant's application for orders under s 55(1)(b) and s 55(2)(b) of the High Risk Serious Offenders Act 2020 (WA) dated 11 August 2022 is allowed.
2.The Interim Detention Order made by the Hon Justice Smith on 12 August 2022 remains in effect until 5 December 2023.
3.From 5 December 2023, the Respondent is to be subject to the Supervision Order made by the Hon Justice Tottle on 12 April 2021 while in the community, with the following amended conditions:
Pursuant to section 68(1)(b)(ii) 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 10 years from 18 May 2021, (being a date not earlier than 21 days from the date this order is made), on the following conditions:
You, JOHN TERRY MISKO, must:
STANDARD CONDITIONS REQUIRED BY THE ACT
1.Report to a Community Corrections Officer at the place and within the time stated in the order and advise the officer of your current name and address;
2.Report to and receive visits from, a Community Corrections Officer as directed by the court;
3.Notify a Community Corrections Officer 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 Community Corrections Officer, which includes
,comply with any reasonable direction of the officer (including a 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 Community Corrections Officer;
6.Not commit a serious offence during the period of the Order; and
7.Be subject to electronic monitoring under section 31.
ADDITIONAL CONDITIONS
Residence
8.Take up residence at [redacted] and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer (CCO) assigned to you;
Reporting to a CCO and supervision by a CCO
9.Report to a CCO at your approved release address within normal business hours on the day of release from custody within normal business hours under this order;
10.Be under the supervision of a CCO, report to and receive visits from a CCO at times and places as directed by the CCO, and comply with the lawful orders and directions of a CCO;
11.Not commence or change paid or unpaid employment, education, training or volunteer work without the prior approval of the CCO;
Attendance at programs or treatment
12.Consult and engage with any psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO;
13.Comply with the requirements of all programs designed to address your offending behavior and/or risk of serious re-offending, as directed by a CCO;
Reporting to WA Police
14.Report to the Officer-in-Charge of the High Risk Serious Offender team of the Serious Offender Management Squad (SOMS) at the Hatch Building, 144 Stirling Street, PERTH WA 6000 within 48 hours of your release from custody and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the High Risk Serious Offender team or his/her delegate;
15.If requested, permit Police Officers to enter and search your person, residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this Order and allow the seizure of any such items that the Police Officers believes to contravene the conditions of this order;
16.Remain at your premises and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the High Risk Serious Offenders Act 2020;
17.When requested, advise Police of the names of all of your internet service providers, all mobile or landline telephone services used by you and all screen name(s), user name(s) and email addresses used by you;
Disclosure/Exchange of Information
18.Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this Order, including confidential information;
19.Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate, to disclose to them your offending history, including otherwise confidential information;
Restrictions on contact with Victims
20.Have no contact, directly or indirectly, with the victims of your sexual offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-Offender Mediation Unit of the Department of Justice;
21.Unless contact with victims is permitted pursuant to condition 20, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times;
22.Report to the CCO and WA Police any direct or indirect contact with the victims of your sexual offending on the next occasion you report to that person or agency;
23.Not breach any provision of or commit any offence under the Restraining Orders Act 1997;
Criminal conduct
24.Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments;
25.Not commit an offence under s 202, s 203, or s 204 of the Criminal Code 1913 (WA) or s17(1) Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021;
26.Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996;
27.Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies, including but not limited to cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014 and your use is in accordance with the instructions of the prescriber;
Curfew
28.Be subject to a curfew, pursuant to section 32 of the High Risk Serious Offenders Act 2020, such that you are to remain at and not leave your approved address as directed by a CCO from time to time;
29.When subject to a curfew under this order, present yourself for inspection at the front door or front yard of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew;
30.When subject to the curfew under this order, you must ensure that all those people present in the residence who may answer the telephone or door are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew;
Prevention of High-Risk Situations
31.Not to possess, purchase, consume or use alcohol;
32.Not go to or remain at any licensed premises unless permitted or required to do so for the following reasons:
a)For the purpose of averting or minimising a serious risk of death or injury to yourself or another person;
b)For a purpose, and for a duration approved in advance by a CCO;
c)On the order of a CCO or Police Officer;
33.Attend for and submit to urinalysis or other testing for alcohol use or prohibited drugs as directed by the CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place;
34.To provide a valid sample for the testing described in Condition 33;
35.With the exception of public transport, not to enter in or on any vehicle with any female or where a female is present (whether that vehicle is under your control or not), unless the identity of such person is approved in advance by a CCO;
36.Not enter any residential address in which a female resides or is known to reside, unless authorised in advance by a CCO;
37.Not permit any female to enter any residential address in which you reside, unless the identity of such person is approved in advance by a CCO;
38.Report any unsolicited interaction with females at your residential address and generally to a CCO and SOMS at your next scheduled appointment;
39.Not enter the premises or access the services of escort agencies or sex workers, unless the identity of such person is approved and authorised in advance by a CCO;
40.Not remain in the presence of females who you know or reasonably ought to know to be affected by alcohol, unless the identity of such person is approved in advance by the CCO;
41.Not remain in the presence of any person who you know or reasonably ought to know to be affected by illicit substances;
42.Not remain in any place where prohibited drugs are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place. If you are the sole occupant of the address, request those consuming prohibited drugs leave the address; if they refuse or otherwise do not leave, contact police and request they remove the patrons;
43.Not access or have in your possession in either electronic or permanent form any pornographic material without the prior notification and approval of a CCO. Pornographic materials means printed or visual or any medium of material that contains the explicit description or display of sexual organs or activity; it does not include images displaying chests, breasts or nipples, or backsides with clothing covering the anus;
44.Not associate with any person known by you to have committed any sexual offence, unless such association is authorised in advance by the CCO;
45.Maintain a daily diary of your movements, activities, and associations, if and as directed by the CCO, and present this diary to the CCO and Police upon request;
46.Report at your next contact with your CCO the formation of any social association (of more than 1 contact by any means), domestic, romantic, sexual or otherwise intimate relationship by you with any person;
47.As directed by your CCO, make full or part disclosure regarding your past offending and the current Order to anyone with whom you commence an ongoing social association (of more than 1 contact by any means), domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer;
48.Advise a CCO or Police Officer of every computer, telecommunication and/or electronic device capable of storing digital data or information possessed or used by you, whether or not it is capable of being connected to the internet, and the location of that device;
49.Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 48, without prior approval of the CCO;
50.Enable device locking or password access of your computer, telecommunication and/or electronic devices; not provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device referred to in condition 48, or any online accounts, to any person other than a CCO or Police Officer;
51.Upon request, permit a CCO or WA Police at any location nominated by them to access any computer, telecommunication and/or device capable of storing digital data, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device; this includes providing all screen name(s), user name(s) and email addresses. 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;
52.Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunication and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police; and
53.To abide by any conditions and requirements of any National Disability Insurance Scheme (NDIS) provider that is providing you with any services and/or accommodation.
APPENDIX 2
| Charge Number | Date of Contravention | Date of Conviction | Condition of Supervision Order Breached | Description of Breach | Date of Sentence | Penalty Imposed |
| PE 26934/22 | 8 June 2022 | 5 July 2022 | Condition 4 - Comply with CCO direction. | On 29 March 2022, the respondent was issued with a Written Lawful Instruction by his CCO requiring him to maintain a daily diary of his movements, activities and associations. On 8 June 2022, the respondent tested positive for COVID-19 and received a message from the Western Australian Health Department to isolate for seven days. The respondent failed to record the addresses of the locations he had attended, the purpose or the duration. | 3 August 2022 | $1,000 fine. |
| PE 32415/22 | 18 July 2022 | 5 August 2022 | Condition 4 - Comply with CCO direction. | The respondent travelled to the Perth CBD by train. The respondent spoke with an unidentified female near the Barrack Street exit of the Perth Train Station, handed something to her and had a short interaction with her before they parted company. The respondent failed to record his attendance at Perth CBD, his movements and his interaction. | 8 August 2022 | No punishment. |
| PE 32416/22 | 28 July 2022 | 5 August 2022 | Condition 4 - Comply with CCO direction. | The occupant of a white utility arrived at the respondent's home address, provided him with something and had a discussion. The respondent failed to record this in his diary. | 8 August 2022 | No punishment. |
| PE 32417/22 | 4 August 2022 | 5 August 2022 | Condition 48 - Advise CCO of every computer, telecommunication and/or electronic device. | The police conducted a pat search on the respondent where a Vivo branded mobile telephone was observed to fall from out of his trouser leg. The respondent had not disclosed his possession of the mobile. | 8 August 2022 | $2,000 fine (global). |
| PE 32418/22 | 4 August 2022 | 5 August 2022 | Condition 51 - Permit CCO or WA Police to access any computer, telecommunication and/or electronic device. | After the seizure of the Vivo mobile, the respondent failed to provide to the police the pin code of the device. | 8 August 2022 | |
| PE 33278/22 | 1 December 2021 - 31 July 2022 | 11 August 2022 | Condition 36 - Not to enter any residential address in which a female resides or is known to reside. | Between December 2021 and July 2022, the respondent formed a friendship with a female (OS). During this period, the respondent entered OS's place of residence whilst she, and other females who resided there, were present. The respondent did not seek authorisation from his CCO. | 11 August 2022 | $500 fine suspended for three months. |
| PE 33279/22 | 1 December 2021 - 31 July 2022 | 11 August 2022 | Condition 37 - Not to permit any female to enter residential address. | Between December 2021 and July 2022, OS attended and entered the respondent's residence on approximately one occasion each fortnight. On occasions, she slept in the same bed as the respondent and he attempted to instigate sexual contact with her, which she declined. The respondent did not seek authorisation from his CCO. | 11 August 2022 | |
| PE 33280/22 | 1 December 2021 - 31 July 2022 | 11 August 2022 | Condition 40 - Being in the presence of a female affected by alcohol. | On at least one occasion when OS attended the respondent's home address she consumed alcohol in his presence and on numerous other occasions when she attended and remained overnight, she was under the influence of alcohol. The respondent did not seek authorisation from his CCO. | 11 August 2022 | |
| PE 33281/22 | 1 December 2021 - 31 July 2022 | 11 August 2022 | Condition 45 - To disclose details of activities, movements and associations. | Between December 2021 and July 2022, the respondent came into contact with OS on numerous occasions, accompanying her throughout the Perth CBD, entering her residence, and permitting her to enter his residence. The respondent did not disclose his association or interactions with OS to his CCO. | 11 August 2022 | |
| PE 33282/22 | 1 December 2021 - 31 July 2022 | 11 August 2022 | Condition 46 - Report the formation of a friendship or relationship. | Between December 2021 and July 2022, the respondent formed a friendship with OS as a result of which they would interact in person, by telephone and each attended the residence of the other. The respondent did not disclose his friendship or interactions with OS to his CCO. | 11 August 2022 | |
| PE 33283/22 | 1 December 2021 - 31 July 2022 | 11 August 2022 | Condition 53 - To abide by any conditions and requirements of any National Disability Insurance Scheme (NDIS). | The respondent's accommodation is provided by Uniting WA, which is funded by the NDIS. The respondent agreed to conditions that no person shall stay overnight at the premises without specific permission and that alcohol should not be brought onto the premises. Between December 2021 and July 2022, OS stayed at the respondent's residence and drank alcohol at the respondent's residence. | 11 August 2022 | |
| PE 51510/22 | 15 March - | 13 December 2022 | Condition 11 - Not to commence or change paid or unpaid employment, education, training or volunteer work. | Between August 2021 and August 2022, the respondent attended a store, Gosnells Gifts and Tobacco, usually two or three times a week, where he would supply paintings to be sold on his behalf. The respondent did not seek prior approval from his CCO. | 9 February 2023 | 10 months imprisonment. |
| PE 51511/22 | 12 April 2021 - | 13 December 2022 | Condition 17 - Advise police of all internet identities and passwords. | Between 12 April 2021 and 10 August 2022, police asked if the respondent had any new internet accounts to advise of. The respondent failed to disclose his accounts with Telegram, Facebook, WhatsApp and Google Duo, including his usernames and passwords. | 9 February 2023 | Two months imprisonment (concurrent). Total effective sentence: 10 months imprisonment. |
| PE 51512/22 | 4 March - 4 August 2022 | 13 December 2022 | Condition 17 - Advise police of all internet identities and passwords. | In December 2021, the respondent reported a new mobile telephone number to police, claiming this to be a replacement for his previous number. The respondent claimed his old phone number was no longer used. On 4 August 2022, a Vivo branded mobile was seized. The mobile had the SIM card for his old phone number. The respondent consistently lied about the telephone services he was using to conceal his communications and associations. | 9 February 2023 | One month imprisonment (concurrent). Total effective sentence: 10 months imprisonment. |
| PE 51513/22 | 1 March - 30 July 2022 | 13 December 2022 | Condition 31 - Not to possess, purchase, consume or use alcohol. | In March 2022, a male (BD) gave the respondent a one litre bottle of home brew bourbon (40 - 50% alcohol content). BD brought bottles of bourbon once a fortnight. In July 2022, the respondent poured bourbon from a Jim Beam or Jack Daniel's bottle and gave it to a female (TJ). On 29 July 2022, the respondent gave a female (PM) a bottle of bourbon and coke while at Gosnells train station which she drank from. On 30 July 2022, the respondent, while on a bus with PM, handed a bottle of premixed bourbon and coke which she drank from. On the same day, another female (FD) was handed a glass of bourbon by the respondent while at his home address. | 9 February 2023 | One month imprisonment (cumulative). Total effective sentence: 10 months imprisonment. |
| PE 51514/22 | 1 May - 30 July 2022 | 13 December 2022 | Condition 37 - Not to permit any female to enter residential address. | In May 2022, PM entered the respondent's home where she remained for 30 minutes. In mid July 2022, PM and her 15 year old daughter entered the respondent's home address where she stayed for dinner. In late July 2022, PM in the company of FD entered the respondent's address for a period of time drinking alcohol. On 30 July 2022, PM entered the respondent's home address where she dyed her hair. The respondent was present during all occasions and had not sought prior approval. | 9 February 2023 | One month imprisonment (cumulative). Total effective sentence: 10 months imprisonment. |
| PE 51515/22 | 2 August 2022 | 13 December 2022 | Condition 37 - Not to permit any female to enter residential address. | On 2 August 2022, FD and PM entered the respondent's home address while the respondent was present. FD had dinner and drinks with the respondent and remained there for the entire night, sleeping in the respondent's bed with him. The respondent had not sought prior approval. | 9 February 2023 | One month imprisonment (concurrent). Total effective sentence: 10 months imprisonment. |
| PE 51516/22 | 1 May - 31 July 2022 | 13 December 2022 | Condition 37 - Not to permit any female to enter residential address. | In May 2022, PM and her daughter entered the respondent's home where she remained for 30 minutes. In mid July 2022, PM and her daughter entered the respondent's home address where she stayed for dinner. In late July 2022, PM and her daughter entered the respondent's home address where they had drinks. The respondent was present during all occasions and had not sought prior approval. | 9 February 2023 | One month imprisonment (concurrent). Total effective sentence: 10 months imprisonment. |
| PE 51517/22 | 1 May - 31 July 2022 | 13 December 2022 | Condition 37 - Not to permit any female to enter residential address. | In May 2022, TJ entered the respondent's home address. In July 2022, TJ, having nowhere to reside, stayed at the respondent's home address for three to four weeks. The respondent was present during all occasions and had not sought prior approval. | 9 February 2023 | One month imprisonment (concurrent). Total effective sentence: 10 months imprisonment. |
| PE 51518/22 | 1 July - 31 July 2022 | 13 December 2022 | Condition 37 - Not to permit any female to enter residential address. | In July 2022, a female (GE), in the company of another, entered the respondent's home address where she stayed until early morning. The respondent was present and had not sought prior approval. | 9 February 2023 | One month imprisonment (concurrent). Total effective sentence: 10 months imprisonment. |
| PE 51519/22 | 1 - 31 July 2022 | 13 December 2022 | Condition 37 - Not to permit any female to enter residential address. | In July 2022, a female (WT) was looking for accommodation and entered the respondent's home address to ask if she could stay. WT subsequently moved in and stayed for a week. Three weeks later WT entered the respondent's home address and had an altercation with another female. The respondent was present on each occasion and had not sought prior approval. | 9 February 2023 | One month imprisonment (concurrent). Total effective sentence: 10 months imprisonment. |
| PE 51520/22 | 26 February - 31 July 2022 | 13 December 2022 | Condition 37 - Not to permit any female to enter residential address. | Between 26 February and July 2022, the respondent formed a relationship with a female (BC). BC visited the respondent's home address on multiple occasions, stayed the night on several occasions, sleeping in his bed. The respondent was present on each occasion and had not sought prior approval. | 9 February 2023 | One month imprisonment (concurrent). Total effective sentence: 10 months imprisonment. |
| PE 51521/22 | 1 - 30 April 2022 | 13 December 2022 | Condition 38 - Report any unsolicited interaction with females. | In April 2022, the respondent was on a train when he spoke with PM. The respondent discussed PM's tattoos, informing her that he was a tattoo artist. They exchanged telephone numbers. The respondent failed to notify a CCO or SOMS of this interaction. | 9 February 2023 | One month imprisonment (cumulative). Total effective sentence: 10 months imprisonment. |
| PE 51522/22 | 1 - 30 April 2022 | 13 December 2022 | Condition 38 - Report any unsolicited interaction with females. | In April 2022, the respondent was at a shopping centre mall when he was introduced to FD. Over the following few months, the respondent and FD saw each other in the shopping mall a further five or six times, speaking on each occasion. The respondent failed to notify a CCO or SOMS of these interactions. | 9 February 2023 | One month imprisonment (concurrent). Total effective sentence: 10 months imprisonment. |
| PE 51523/22 | 1 - 31 December 2021 | 13 December 2022 | Condition 38 - Report any unsolicited interaction with females. | In December 2021, the respondent was at a train station when he spoke with OS. The respondent failed to notify a CCO or SOMS of this interaction. | 9 February 2023 | One month imprisonment (concurrent). Total effective sentence: 10 months imprisonment. |
| PE 51524/22 | 1 - 31 May 2022 | 13 December 2022 | Condition 38 - Report any unsolicited interaction with females. | In May 2022, PM and her daughter visited the respondent's home address. Between May and August 2022, the respondent met PM's daughter on a number of occasions and communicated with her via telephone. The respondent failed to notify a CCO or SOMS of these interactions. | 9 February 2023 | One month imprisonment (concurrent). Total effective sentence: 10 months imprisonment. |
| PE 51525/22 | 1 - 31 May 2022 | 13 December 2022 | Condition 38 - Report any unsolicited interaction with females. | In May 2022, the respondent went to a hostel where he met TJ. The respondent met with TJ on a number of occasions following this. The respondent failed to notify a CCO or SOMS of these interactions. | 9 February 2023 | One month imprisonment (concurrent). Total effective sentence: 10 months imprisonment. |
| PE 51526/22 | 1 June - 31 July 2022 | 13 December 2022 | Condition 38 - Report any unsolicited interaction with females. | Between June and July 2022, the respondent was at his home address when he was visited by a female, (GA). GA was a friend of TJ, who was staying with him at the time. The respondent failed to notify a CCO or SOMS of this interaction. | 9 February 2023 | One month imprisonment (concurrent). Total effective sentence: 10 months imprisonment. |
| PE 51527/22 | 1 - 31 July 2022 | 13 December 2022 | Condition 38 - Report any unsolicited interaction with females. | In July 2022, the respondent was at his home address when he was visited by a male, (FC) who brought with him WT, who was looking for accommodation. The next day the respondent called WT advising her that she was able to stay at his house that night, which she then did. The respondent failed to notify a CCO or SOMS of these interactions. | 9 February 2023 | One month imprisonment (concurrent). Total effective sentence: 10 months imprisonment. |
| PE 51528/22 | 26 February 2022 | 13 December 2022 | Condition 38 - Report any unsolicited interaction with females. | On 26 February 2022, the respondent was in Forrest Chase, Perth, when he met BC. BC and the respondent chatted for a short time. The respondent failed to notify a CCO or SOMS of this interaction. | 9 February 2023 | One month imprisonment (concurrent). Total effective sentence: 10 months imprisonment. |
| PE 51529/22 | 1 - 30 September 2021 | 13 December 2022 | Condition 38 - Report any unsolicited interaction with females. | In September 2021, the respondent was at a store in Gosnells where he met a female, (CA). CA mentioned to the respondent that she was looking for somewhere to live, the respondent showed CA some rental properties on his mobile telephone. The respondent failed to notify a CCO or SOMS of this interaction. | 9 February 2023 | One month imprisonment (concurrent). Total effective sentence: 10 months imprisonment. |
| PE 51530/22 | 1 May - 2 August 2022 | 13 December 2022 | Condition 40 - Being in the presence of a female affected by alcohol. | In May 2022, the respondent was visited by PM, who had consumed an entire bottle of Bourbon with coke prior to her arrival at his home address. PM remained at the respondent's address for approximately 30 minutes. In July 2022, PM and FD visited the respondent at his home address. The respondent gave PM money for a four or six pack of premix Bourbon and coke for her to drink at his house. On 30 July 2022, the respondent gave PM a homemade bottle of premixed Bourbon and coke and encouraged PM to drink it. On 2 August 2022, the respondent gave PM a bottle of premixed Bourbon and coke. PM found the mix to be very strong and was intoxicated quickly. The respondent had not been given approval to be in the company of PM whilst affected by alcohol. | 9 February 2023 | One month imprisonment (concurrent). Total effective sentence: 10 months imprisonment. |
| PE 51531/22 | 2 August 2022 | 13 December 2022 | Condition 40 - Being in the presence of a female affected by alcohol. | On 2 August 2022, the respondent was at his home address when he was visited by FD and PM. FD drank two cans of bourbon and was given a large glass of homemade bourbon by the respondent. FD and the respondent engaged in consensual intercourse and FD felt the alcohol affected her decision making. The respondent had not been given approval to be in the company of FD whilst affected by alcohol. | 9 February 2023 | One month imprisonment (concurrent). Total effective sentence: 10 months imprisonment. |
| PE 51532/22 | 1 May - 31 July 2022 | 13 December 2022 | Condition 40 - Being in the presence of a female affected by alcohol | In May 2022, the respondent was at his home address in company with TJ. TJ was drinking cans of bourbon and cola and remained at the house for the night. In July 2022, TJ was at the respondent's home address and got into a verbal altercation with another female. TJ was intoxicated and struggled to pack her things to leave. The respondent tried to convince TJ to remain at the house but she refused. The respondent had not been given approval to be in the company of TJ whilst affected by alcohol. | 9 February 2023 | One month imprisonment (concurrent). Total effective sentence: 10 months imprisonment. |
| PE 51533/22 | 1 September 2021 - 12 August 2022 | 13 December 2022 | Condition 43 - Not to access or possess pornographic material | Between September 2021 and August 2022, the respondent visited a store in Gosnells and on several occasions showed CA pornographic material on his Huawei mobile. The respondent showed CA about five images or videos every time he visited the store. The respondent had not sought approval of a CCO to access or possess pornographic material. | 9 February 2023 | Two months imprisonment (cumulative). Total effective sentence: 10 months imprisonment |
| PE 51534/22 | 29 March - 10 August 2022 | 13 December 2022 | Condition 45 - To disclose details of activities, movements and associations | On 29 March 2022, the respondent was issued with a Written Lawful Instruction by a CCO to maintain a daily diary of his activities, movements and associations. The respondent failed to record his interactions with 13 people. | 9 February 2023 | One month imprisonment (concurrent). Total effective sentence: 10 months imprisonment |
| PE 51535/22 | 1 April - 12 August 2022 | 13 December 2022 | Condition 46 - Report the formation of a friendship or relationship | Between April and August 2022, PM formed a friendship with the respondent. The respondent visited PM at her workplace on a number of occasions, PM visited him at his home address and they maintained regular contact via telephone. The respondent failed to notify his CCO of this friendship. | 9 February 2023 | One month imprisonment (cumulative). Total effective sentence: 10 months imprisonment |
| PE 51536/22 | 1 May - 12 August 2022 | 13 December 2022 | Condition 46 - Report the formation of a friendship or relationship | Between May and August 2022, PM's daughter formed a friendship with the respondent. PM's daughter visited the respondent on a number of occasions at his home address and they maintained regular contact via telephone. The respondent failed to notify his CCO of this friendship. | 9 February 2023 | One month imprisonment (concurrent). Total effective sentence: 10 months imprisonment |
| PE 51537/22 | 1 April - 12 August 2022 | 13 December 2022 | Condition 46 - Report the formation of a friendship or relationship | Between April and August 2022, FD formed a friendship and later sexual relationship with the respondent. FD met with the respondent on a number of occasions at a shopping centre. On 2 August 2022, FD visited the respondent at his home address where they had consensual sexual intercourse. The respondent failed to notify his CCO of this relationship. | 9 February 2023 | One month imprisonment (concurrent). Total effective sentence: 10 months imprisonment |
| PE 51538/22 | 29 July - | 13 December 2022 | Condition 46 - Report the formation of a friendship or relationship | Between 29 July and August 2022, a male (PL) formed a friendship with the respondent. The respondent met PL in company with his mother (PM) on three occasions. The respondent failed to notify his CCO of this friendship. | 9 February 2023 | One month imprisonment (concurrent). Total effective sentence: 10 months imprisonment |
| PE 51539/22 | 4 July - 12 August 2022 | 13 December 2022 | Condition 46 - Report the formation of a friendship or relationship | Between 4 July and August 2022, WT formed a friendship with the respondent. WT visited the respondent at his home address and slept there for a week, whilst she had nowhere to stay. The respondent maintained contact with WT via telephone and social media. The respondent failed to notify his CCO of this friendship. | 9 February 2023 | One month imprisonment (concurrent). Total effective sentence: 10 months imprisonment |
| PE 51540/22 | 1 September 2021 - 12 August 2022 | 13 December 2022 | Condition 46 - Report the formation of a friendship or relationship | Between September 2021 and August 2022, CA formed a friendship with the respondent. The respondent visited CA at her workplace most Fridays and Saturdays. The respondent also communicated with CA via telephone and social media. The respondent failed to notify his CCO of this friendship. | 9 February 2023 | One month imprisonment (concurrent). Total effective sentence: 10 months imprisonment |
| PE 51541/22 | 1 June - 12 August 2022 | 13 December 2022 | Condition 46 - Report the formation of a friendship or relationship | Between June and August 2022, FC formed a friendship with the respondent. FC visited the respondent at his home address, staying over for the night on a couple of occasions. The respondent also maintained contact with FC via telephone and Google Duo. The respondent failed to notify his CCO of this friendship. | 9 February 2023 | One month imprisonment (concurrent). Total effective sentence: 10 months imprisonment |
| PE 51542/22 | 1 February - | 13 December 2022 | Condition 46 - Report the formation of a friendship or relationship | Between February and July 2022, BD formed a friendship with the respondent. BD visited the respondent at his home address and supplied home brew alcohol. The respondent also maintained contact with BD via telephone. The respondent failed to notify his CCO of this friendship. | 9 February 2023 | One month imprisonment (concurrent). Total effective sentence: 10 months imprisonment |
| PE 51543/22 | 1 May - 12 August 2022 | 13 December 2022 | Condition 46 - Report the formation of a friendship or relationship | Between May and August 2022, TJ formed a friendship with the respondent when she was staying at a hostel. The respondent maintained contact with her via telephone. TJ moved into the respondent's house where she remained for a period of approximately six weeks. The respondent failed to notify his CCO of this friendship. | 9 February 2023 | One month imprisonment (concurrent). Total effective sentence: 10 months imprisonment |
| PE 51544/22 | 26 February - | 13 December 2022 | Condition 46 - Report the formation of a friendship or relationship | Between 26 February and July 2022, BC formed a sexual relationship with the respondent. The respondent visited BC at her home address on a number of occasions. BC also stayed at the respondent's house several times and during this period, BC believed they were in a romantic and physical relationship. They also maintained contact via telephone. The respondent failed to notify his CCO of this relationship. | 9 February 2023 | One month imprisonment (concurrent). Total effective sentence: 10 months imprisonment |
| PE 51545/22 | 12 April 2021 - 12 August 2022 | 13 December 2022 | Condition 48 - Advise CCO of every computer, telephone and electronic device. | On 19 August 2022, police seized an Opel Smart X1 mobile which was located at the respondent's home address. The respondent was the only tenant at the property and no further persons had permission to reside there. The respondent had not informed a CCO of the Opel mobile. | 9 February 2023 | One month imprisonment (cumulative). Total effective sentence: 10 months imprisonment |
| PE 51546/22 | 12 April 2021 - | 13 December 2022 | Condition 48 - Advise CCO of every computer, telephone and electronic device. | On 5 October 2022, Uniting WA staff located an Apple iPad while clearing belongings at the respondent's home address. The respondent had previously informed SOMS officers that he had lost his iPad and was therefore no longer using it. The respondent failed to notify SOMS of the iPad despite having been asked if he had any new devices on several occasions. | 9 February 2023 | One month imprisonment (cumulative). Total effective sentence: 10 months imprisonment |
| PE 51547/22 | 1 September 2021 - 12 August 2022 | 13 December 2022 | Condition 49 - Not allow another person to access any electronic device owned or used | Between September 2021 and August 2022, the respondent visited the store where CA worked and asked her to assist him with his mobile telephones. On one occasion the respondent asked CA to set up a new mobile telephone for him and on another occasion CA installed an application believed to be WhatsApp. The respondent had not been given approval by a CCO to allow CA to access his mobile telephones. | 9 February 2023 | One month imprisonment (concurrent). Total effective sentence: 10 months imprisonment |
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OK
Associate to the Honourable Justice Tottle
30 NOVEMBER 2023
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