The State of Western Australia v Narkle - [2020] WASC 410

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- NARKLE [2020] WASC 410
CORAM:   QUINLAN CJ
HEARD:   9 & 11 NOVEMBER 2020
DELIVERED          :   11 NOVEMBER 2020
PUBLISHED           :   13 NOVEMBER 2020
FILE NO/S:   DSO 2 of 2019
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant

AND

GARRY MICHAEL NARKLE
Respondent

Catchwords:

Criminal law - High Risk Serious Offenders Act 2020 (WA) - Review of continuing detention order pursuant to s 66 and s 68 of the Act - Whether offender remains a high risk serious offender under s 7 of the Act - Whether to affirm continuing detention order or make a supervision order

Legislation:

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

Result:

Continuing detention order affirmed

Category: B

Representation:

Counsel:

Applicant	:	B D Meertens
Respondent	:	S F Rafferty

Solicitors:

Applicant	:	Director of Public Prosecutions (WA)
Respondent	:	Seamus Rafferty Barristers & Solicitors

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

The State of Western Australia v Narkle [2019] WASC 404
The State of Western Australia v Narrier [No 6] [2020] WASC 394
The State of Western Australia v Paul Douglas Allen, also known as Paul Alan Francis Deverell, [No 5] [2019] WASC 359

QUINLAN CJ:

(This judgment was delivered extemporaneously on 11 November 2020 and has been edited to correct matters of grammar and to include complete references to the evidence.)

Following a review of the respondent's detention under s 66 and s 68 of the High Risk Serious Offenders Act 2020 (WA), and for the reasons that follow, I told the respondent:
Mr Narkle, it is my duty today to review your detention under the continuing detention order that I made last year under the Dangerous Sexual Offenders Act 2006. That order has continued under the new High Risk Serious Offenders Act 2020 which now applies to you.
Under the law I must consider whether you remain a high risk serious offender and if you do, I have to decide whether to affirm the continuing detention order or to make a supervision order. Through your lawyer, Mr Rafferty, you have accepted that you are a high risk serious offender under the law. That concession was entirely correct. It is to your credit that you instructed your counsel to make it. The concession is correct because I am satisfied to a high degree of probability that it is necessary to make a restriction order under the Act to ensure adequate protection in the community against an unacceptable risk that you will commit a serious offence and, in particular, one of the sexual offences listed in the schedule to the Act.
You are a dangerous man, Mr Narkle. As I said when I originally made the order, there are deeply entrenched features of your personality and makeup that dispose you to committing serious sexual offences against other people. Your persistent and violent sexual offending is, in my view, clearly related to your underlying psychopathic personality in which your own gratification and sense of entitlement has taken priority over the safety, dignity and humanity of your victims. That was true last year; it is true today. You are reaching old age, Mr Narkle. It may be that, with your entrenched personality, it may be true forever.
When you said to Dr Wynn Owen words to the effect that you pose no risk in the future, you were wrong, Mr Narkle. You do pose a risk, and you need to clearly recognise that.
That does not mean that you cannot change. At the very least, even if your personality does not change, you can make efforts to change your behaviour. The purpose of you being in detention under the Act is for control, care or treatment. It is not for punishment, and I am satisfied that all of those things, required by the Act, are happening. You are being controlled, you are being cared for and you are being treated. I am satisfied that the treatment has had a positive effect on you. It is worthwhile that that treatment continues. You should understand, however, that the purpose of the treatment is not just to work towards release. Even if you were never released from custody you should work towards treatment so that your relationship with other people, including your wife, is better and more meaningful.
The main question for me today, Mr Narkle, is whether to keep you on the continuing detention order and to keep that in place, or to release you on supervision. In deciding that question the most important consideration that the law requires me to take into account is that of ensuring adequate protection of the community. Mr Narkle, I have listened carefully to the evidence and to the submissions on your behalf as to whether I should keep you in detention or whether I should release you on a supervision order.
In making that decision, as I have said, I have to make sure that the community is adequately protected. In the circumstances, Mr Narkle, I am not satisfied that the community can be adequately protected by making a supervision order. The risk of you committing another serious offence and hurting another victim is still too high and the conditions of a supervision order would not bring that risk down to an acceptable level. You have to satisfy me that you would substantially comply with the standard conditions of a supervision order.
That means you have to satisfy me that you would not commit a serious offence and that you would comply with any reasonable direction of a Community Corrections Officer.
You have not given evidence before me so I must make that decision based on the evidence that is before me, including the opinions of the experts and what you have said to the people who have interviewed you.
You have said that you are not a risk of committing another serious offence. I do not believe that to be the case. Even if you truly mean that, and I am still not yet sure that you do, I am satisfied that you still do not understand your own risk. I find that while you have made real progress in your treatment with Dr Riordan you still talk down your offending criminal history and want to minimise what you have done in the past and your responsibility for it. Your remaining poor self-awareness, and your personality, also mean that I cannot be satisfied on the balance of probabilities that you will comply with supervision by a Community Corrections Officer.
And so, Mr Narkle, I am going to affirm the continuing detention order. You should continue with your treatment with Dr Riordan, whether it means you are eventually released or not. I cannot predict with any certainty what the future will bring. It might be that, at some point in the future, your risk can be managed in the community. On the other hand, it might be that you can never be safe enough to be placed on a supervision order.
I do not know what those findings will be in the future. They are matters that must be assessed in the future as the law requires. But you should continue, regardless, with the treatment you have been undergoing. In the meantime, I affirm the continuing detention order. That is all I need to say to you, now. I now have to give detailed reasons for my decision.
My reasons are as follows.
This is a review under s 66 and s 68 of the High Risk Serious Offenders Act 2020 (WA) (the HRSO Act).
Mr Narkle's continuing detention order was originally made under the Dangerous Sexual Offenders Act 2006 (WA) (the DSO Act). The transitional provisions in relation to the HRSO Act were discussed by Derrick J in TheState of Western Australia v Narrier [No 6],[1] the net effect of which are that Mr Narkle's continuing detention order made under the DSO Act continues, in effect, and is taken to have been made, under the HRSO Act, and that the review must now be conducted under that Act.
[1] The State of Western Australia v Narrier [No 6] [2020] WASC 349 [4] (Derrick J).
In carrying out the review, in my view the remarks made by Hall J, in The State of Western Australia v Paul Douglas Allen, also known as Paul Alan Francis Deverell, [No 5], remain equally applicable to a review under the HRSO Act. His Honour said:[2]
The clear intention of the review process is to allow for the possibility of a change of circumstances. Detention under the DSO Act is not a punishment for past offending, rather it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised. If circumstances change such that the risk of reoffending reduces or can be better managed in the community, then the continuing need for detention must be considered.
The risk of reoffending may change over time. It may be affected by age, health or the successful completion of treatment. The availability of new technology or resources in the community may also affect whether the risk of reoffending can be managed on a supervision order.
The justification for making a detention order is the existence of an unacceptable risk of serious sexual offending that cannot be adequately controlled by conditional release. However, detention also serves the purpose of allowing treatment and care in a secure environment… This confirms an obligation on the part of the prison authorities to facilitate change by offering programs and access to counselling.
If the risk changes or resources improve to enable more efficacious conditions then the need for detention may dissipate. In these circumstances continuing detention may be unjust.
The review process is intended to ensure that detention only continues where necessary. It mitigates the otherwise potentially draconian effect of imprisoning people for crimes that they have not committed. Reviews are not, therefore, merely a welfare check, rather they are an exercise of judicial power to affirm, vary or rescind a detention order. Continuing detention should not be ordered unless that course is justified by the circumstances existing at the time of the review. The court should choose the order that is least invasive of a person's right to be at liberty, whilst ensuring an adequate degree of protection of the community.
[2] The State of Western Australia v Paul Douglas Allen, also known as Paul Alan Francis Deverell, [No 5] [2019] WASC 359 [7] - [11].
The first issue before me on this review is whether Mr Narkle remains a high risk serious offender pursuant to s 7 of the HRSO Act. The provision of s 7 is in very similar terms to the test of whether a person was a serious danger to the community under s 7 of the DSO Act; it is slightly differently worded. Section 7(1) of the HRSO Act provides:
An offender is a high risk serious offender if the court dealing with an application under this Act finds that it is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.
In this case, Mr Narkle conceded that to be the case. The concession was entirely proper and correct. I need only briefly explain why. In determining that question, the onus is on the State and I am required to take into account the considerations listed in s 7(3) of the HRSO Act. I have regard to all of those matters, as I did in my previous reasons for decision in The State of Western Australia v Narkle.[3]
[3] The State of Western Australia v Narkle [2019] WASC 404.
I will not set out each of the considerations in detail. A number of them will not change; including Mr Narkle's antecedents, criminal record, pattern of offending and propensity to commit serious offences. I said in my previous reasons:[4]
There are clearly, in my view, deeply entrenched features of Mr Narkle's makeup that dispose him to committing serious sexual offences against other people. His persistent and vicious violent sexual offending, as the experts attest, is in my view, clearly related to his underlying psychopathic personality, in which his own gratification and sense of entitlement take priority over the safety, dignity and humanity of his victims. I so find.
[4] The State of Western Australia v Narkle [2019] WASC 404 [133].
That, in my view, remains the case today and nothing in the evidence before me causes me to reach a different conclusion as to whether, or not, the requirements of s 7 of HRSO Act are satisfied. In particular, Dr Wynn Owen, who provided a report for the purposes of the review and who gave evidence before me, has confirmed that Mr Narkle's psychopathic personality remains, as do many of the risk factors he identified in that report.
The risk factors are discussed and identified from pages 18 - 23 of the report. I refer, in particular, to two matters in Dr Wynn Owen's conclusions:[5]
On the basis of a Structured Professional Judgement assessment of risk [I] am of the opinion that Mr Narkle presents a high risk of committing a future serious sexual offence if not subject to an HRSO Restriction Order. This opinion is based on Mr Narkle's 'well above average' Static 99R score, the presence of psychopathy and his minimisation of risk, of both offending and of substance abuse, coupled with overconfidence in his ability to manage any situation. He has a number of outstanding treatment needs as identified by the RSVP risk factor review and by treating psychologist Dr Riordan.
[5] Psychiatric Report of Dr Peter Wynn Owen, Consultant Psychiatrist, p 23 (Exhibit 1, p 182).
Dr Wynn Owen also concluded:[6]
Concerns about the emotional and physical wellbeing of Mr Narkle's wife … remain worthy of note … While Mr Narkle's verbal outbursts on recorder prison telephone calls have been confined to single expletives rather than protracted misogynistic invective pattern of Mr Narkle's behaviour has remained abusive and controlling.
[6] Psychiatric Report of Dr Peter Wynn Owen, Consultant Psychiatrist, p 24 (Exhibit 1, p 183).
I will return to that issue a little later. It is sufficient, based on what I have said above, to say that I remain satisfied, for the purposes of s 68, that Mr Narkle remains a high risk serious offender.
Turning then to the other matters. Counsel for Mr Narkle, in his submissions, identified at the commencement of the hearing two issues for my consideration:
1.Am I satisfied that Mr Narkle has made any progress since last year's hearing?
2.Am I persuaded that it is appropriate the risk can be mitigated by virtue of placement of a supervision order?
For reasons that follow:
1.I am satisfied that Mr Narkle has made progress since last year's hearing.
2.I am not persuaded that it is appropriate that the risk can be mitigated by virtue of placement of a supervision order.
I turn to the first of those issues and my conclusions in that regard.

Has Mr Narkle made any progress?

Mr Narkle has undergone individual treatment with psychologist, Dr Kathryn Riordan. That treatment has consisted of 20 one-hour individual psychological intervention sessions between 3 December 2019 and 29 September 2020.
I have had the benefit of a report from Dr Riordan dated 20 October 2020.
As I indicated earlier, I have also received evidence from Dr Peter Wynn Owen in a report dated 26 October 2020. Dr Wynn Owen also gave evidence before me.
In addition, I received a Treatment Progress Report from Ms Joanne Collyer, Senior Counselling Psychologist dated 27 October 2020, and a report from Ms Emma Cashmore, Senior Community Corrections Officer dated 26 October 2020.
Dr Riordan stated at the commencement of her report:[7]
Overall Mr Narkle is considered to have engaged well in the intervention sessions offered to date.
[7] Psychological Intervention Progress Report of Dr Kathryn Riordan, p 2 (Exhibit 1, p 153).
Dr Riordan goes on to refer to the tendency of Mr Narkle, initially, to engage in overt grooming behaviour and impression management, although she referred to those overt attempts at grooming being moderated over time and that while Mr Narkle often continued to engage in impression management, they were matters which Dr Riordan addressed in counselling itself.
Dr Riordan describes progress on the part of Mr Narkle throughout her report to which Dr Wynn Owen was taken in his evidence. Those are matters to which I will return later. It is sufficient for present purposes that I record Dr Riordan's overall conclusion as part of her recommendations:[8]
Mr Narkle remains well engaged in individual intervention sessions, however the intervention remains in the early stages with respect to skill development and application of the skills acquired. Mr Narkle has presented as consistently motivated to attend sessions and has demonstrated the capacity for insight and skill development in the areas addressed, however, the application of the skills learnt remains in the early stages and restricted to the prison setting. Mr Narkle has expressed a willingness to continue to engage in intervention sessions should he be made subject to a community or prison based restriction order and ongoing individual attention is recommended.
[8] Psychological Intervention Progress Report of Dr Kathryn Riordan, p 7 (Exhibit 1, p 158).
Dr Riordan also recommended couples-based therapeutic intervention involving Mr Narkle's wife. It is not clear yet whether that can take place in a prison setting, but it is certainly, in light of the ongoing stressors that that relationship creates, something that should be pursued.
Dr Wynn Owen, as I have said, referred to many aspects of Mr Narkle's progress in the evidence that he gave before me. Those matters were prefaced by the following exchange that occurred in his cross-examination:[9]
So when we're dealing with a person who has had that concrete style of thinking that is entrenched, and has been entrenched for such a long period of time, would you agree with the general proposition that where has been a change, that that is, of itself, is something that is extremely significant?---In that change is difficult and would be very slow with somebody with that thinking style, yes. It is a change of significance, yes.
And I'm going to go through a number of factors here. But would you agree, in a general sense, that in relation to a number of different factors, which we will go through individually now, there have been those significant changes, albeit in the early stages, as far as Narkle is concerned?---I have identified a number of changes. I mean, significances is a matter – it’s one of those words that has a variety of meanings. But the changes are real, and I think I've made the point of putting in my summary that one would not expect Mr Narkle to have changed a lot in the 12 months only, since this intensive therapy has been occurring. And the changes that we have seen seem to be sustained and real.
And indeed, with somebody with such entrenched thought processes over such a long period of time, there can be scenarios in relation to certain individuals where there will be no change, regardless of whether there's intervention?---Certainly, in a 12 month period, that would be quite common.
So putting aside issues of the word 'significant', the way that I will describe it to you, though, is it is important in the context of a proceeding like this, to note those changes and they are present and real in relation to Mr Narkle?---Yes. Yes.
[9] Ts 472 - 473.
There are two observations I would generally make in relation to the positive changes that have been demonstrated:
(a)Mr Narkle is, on any view, coming off a very low base, and the significance of changes needs to be seen in that light. This is not to discount the changes, it is merely to recognise that even a significant improvement in Mr Narkle personally may not necessarily translate to an adequate reduction in risk, for the protection of the community; and
(b)the changes which have been described are coming after a very long period of practically no change at all. There is, therefore, in my view, reason to be cautious about whether the change is ultimately going to be genuine and sustained into the future.

These aspects of caution, for example, are reflected in the following evidence that Dr Wynn Owen gave when asked about the positive aspects of Mr Narkle's motivation in the therapy sessions, and going above and beyond therapy sessions:[10]
It is potentially a positive aspect of change. I think one – one has to consider that there’s a certain wariness in any positive therapeutic engagement in somebody – and I don’t want this to be negative or dismissive, but with a psychopathic disorder in that the research literature shows that the people who seem to be particularly successful are often the people who are most likely to reoffend, and one has to bear that in mind at times. However, on the whole, that somebody who remains motivated, remains engaged and goes above and beyond, is probably more likely to benefit than somebody who doesn’t do those things.
[10] Ts 476.
As with most issues in relation to Mr Narkle's case, therefore, it is necessary to take into account both the positive matters and those matters which should cause pause for concern.
The particular aspects of Mr Narkle's positive change that have been identified before me, and which I accept, are as follows.
There has been a marked change in Mr Narkle's behaviour in the recorded phone conversations with his wife. While Mr Narkle continues to appear to control conversations with his wife at times, and by contrast, appears unable to control his accusations of her being unfaithful, there is an absence of the kind of explosive abusive tirades that characterised their previous conversations. Indeed, it appears that Mr Narkle's wife is more often the participant in the conversations who displays the most distress and anger.[11]
[11] Ts 482.
This improvement was certainly accepted by Dr Wynn Owen, who said in evidence:[12]
Do you agree that as far as these calls are concerned, that that level of derogatory language towards his wife is not present?---It has been consistently or absent, so yes, there’s an occasional use of an expletive, and in - clearly, in a - an angry or dismissive or stressed context, but there is no tirade at all.
[12] Ts 485.
Counsel for Mr Narkle also referred to the evidence in relation to Mr Narkle's relatively benign response in relation to being called stupid.[13] I accept that those changes of behaviour are a positive change.
[13] Ts 488.
As with the other matters I have referred to, of course, it is a positive change which I nevertheless at this point still treat with some caution. While Mr Narkle has always known that his telephone calls are recorded, he is certainly conscious of them in a way that was, in my view, not present in the past.
Dr Wynn Owen referred to that where he referred to the context of the calls being recorded, and said:[14]
The knowledge very currently being that all of their recorded calls have become highly pertinent to the proceedings and the likelihood of the next proceeding succeeding.
[14] Ts 483.
Mr Narkle's consciousness of the calls being recorded is reflected in statements that appear in some of the calls that were tendered in evidence. Statements such as:[15]
I don't want to talk on the phone.
and:[16]
Stop saying things on the phone.
indicate an awareness of the need to present a particular position on the telephone.
[15] Transcript - PTS Call 6381617 (Exhibit 2, page 28).
[16] Transcript - PTS Call 1381289 (Exhibit 2, page 43).
Nevertheless, as I have said, I accept as Dr Wynn Owen did, that the fact that he is able to moderate his behaviour, at least, is a positive development.
Dr Wynn Owen was also taken to references to Mr Narkle's own understanding of his vulnerability, which Dr Wynn Owen described as a 'therapeutic breakthrough',[17] and as:[18]
A step in the right direction … [which] one would hope that progress would be continued.
[17] Ts 489.
[18] Ts 490.
Dr Riordan also reported an increase in Mr Narkle's awareness and insight of his offending history. I agree that that is positive, but in my assessment, it remains quite limited.
Mr Narkle has consistently said in the past that he acknowledges his 'past'. However, upon examination, his acknowledgement is often superficial. In The State of Western Australia v Narkle, for example, I said:[19]
Even the 'disclosures' in the telephone calls themselves are a far cry from a frank and truthful description of those offences. Mr Narkle repeatedly returns to dwell on offences much earlier in his life that were (for him) relatively minor, while eliding reference to his serious violent offending in his 30s and 40s.
[19] State of Western Australia v Narkle [2019] WASC 404 [200].
That position, in my view, continues to be the case. Dr Wynn Owen, for example, said concerning his interview with Mr Narkle that:[20]
The interview was characterised by impression management, some grooming (positive comments about statements made in court, reportedly being grateful for the author's past input) and attempts at control of the narrative. Mr Narkle returned frequently, whenever given the opportunity, to a personal narrative of offending occurring a long time ago when he was very young, at a time when he was a victim of multiple adversities and wrongs, contrasting with his recent 100% effort to change, categorical statements about there being no risk in the future and dismissal of potential stressors.
[20] Report of Dr Wynn Owen dated 26 October 2020, page 11 (Exhibit 1, page 170).
When asked about this evidence, Dr Wynn Owen said that Mr Narkle's offending was:[21]
presented in the same way when I interviewed him for the previous hearing. That hadn't changed.
[21] Ts 470.
I accept the submission made on Mr Narkle's behalf to the effect that it may be concluded that the establishment of a therapeutic relationship with Dr Riordan may be such that Mr Narkle's acceptance of his previous offending behaviour may be more evident in his consultations with her than with others. Nevertheless, it is, and remains, particularly important that Mr Narkle's awareness and preparedness to accept the nature of his own offending is a matter which needs to be more broadly sustained before a court could be satisfied that he has the degree of awareness not only of his offending behaviour but also of the risk that he poses in order to be satisfied that the risk could be mitigated by supervision in the community.
An example of his continued minimisation appears in the report of Ms Collyer. It is, in my view, a telling example. She says:[22]
Domestic violence offending was discussed with Mr Narkle. Exploring the offence against his first wife, Mr Narkle claimed it was an accident. He detailed how this accident had occurred, due to his wife standing on a slope when they argued. She slipped and broke her jaw. Despite stating it was an accident, Mr Narkle stated he accepted and took full responsibility for the offence.
[22] Report of Ms Collyer dated 27 October 2020, page 7 [29] (Exhibit 1, page 191).
Following her interview as a whole, Ms Collyer concluded that Mr Narkle displayed an improved capacity to discuss precursors to offending, however continued to minimise and justify his behaviour.[23] His account of offending was largely congruent with previously documented interviews. For example, he often portrays victims in a negative light, apportioning blame on them to a degree.
[23] Report of Ms Collyer dated 27 October 2020, page 8 [36] (Exhibit 1, page 192).
The other matters identified as being positive developments include Mr Narkle having identified that he reverts to controlling behaviour, and the fact that the ability for self-reflection is 'definitely a positive' change. Dr Wynn Owen said:[24]
It depends on the motivation, but if it's positively motivated, it's a positive change of behaviour.
Well, even if it was the motivation, 'I don't want to spend the rest of my life in jail,' the fact that it has been identified, is that of itself significant?‑‑‑Yes.
[24] Ts 492.
This exchange, again, points up the sometimes ambivalent way in which Mr Narkle's progress has to approached: it is starting to develop. In that regard, for example, in relation to his changes of attitudes, the following exchange with Dr Wynn Owen in cross-examination is, in my view, instructive:[25]
And self-awareness is something which is along a spectrum. So I think what we could say is that he has taken a step towards developing self-awareness, but he has still got a problem with self-awareness. So it's not just about the concrete or rigid thinking that prevents the risk. The statement that there will be no risk because of this - - -
I'm not saying we're going from here to here, Doctor, I'm just saying along the road there has been a progression?---It is the first step in the right direction. Yes.
[25] Ts 502-503.
Likewise, in relation to the matter of a healthy relationship and the nature of a healthy relationship, Dr Wynn Owen was taken to Dr Riordan's report to the effect that Mr Narkle was able to distinguish between aspects of a healthy versus an unhealthy relationship and could describe behaviours within the marital relationship that he felt were important to demonstrate affection and trust to his wife.
Dr Wynn Owen was asked about this:[26]
Now, is that – or does that reflect any change in the thinking since 2019?‑‑‑It probably reflects an emerging, at least, intellectual understanding of how those relationships should work and what some of the issues are. Yes. Whether that then translates to behavioural change is something quite different, but, yes, that – this is - - -
This is all about understanding, correct?---Yes.
[26] Ts 511.
It is true that some of the need for behaviour change cannot be put into practice unless and until Mr Narkle is released into the community. That does not mean, however, that it is not possible for an assessment to be made that skill development and a practical as opposed to intellectual understanding of matters cannot be developed in the prison environment. Indeed, the telephone calls themselves reflect the fact that while Mr Narkle has made progress in controlling his own anger and abusive behaviour, there remain real stressors and stresses arising from that relationship.
In that context Dr Wynn Owen gave the following evidence:[27]
But we are now at the point where, for the court to understand whether he can put these things into play, the only real test would be whether he’s in the community or not, do you agree with that?---The real test of the risk of reoffending would be to place him in the community. Whether or not a number of his strategies to cope with stress, to manager interpersonal situations, to recognise and emotionally regulate, can still be tested and honed within the prison environment.
[27] Ts 516.
I will not detail all of the matters dealt with in relation to the positive developments identified by Dr Wynn Owen, save to confirm that Mr Narkle is correct in the submission that Dr Wynn Owen identified overall a number of positive developments.
In relation to where Mr Narkle is in his treatment, it will be apparent from both the conclusion in Dr Riordan's report and from a number of matters I have gone to in Dr Wynn Owen's evidence that there is a general consensus that his treatment and progress remains still in the early stages. For somebody commencing from Mr Narkle's base, being the early stages, even if change has been significant, indicates that he has a way to go.
In that regard, Ms Collyer also expressed a similar view when she reported:[28]
Overall, the assessment interview, collateral information sources and assessment tools used [to] indicate the treatment goals identified during the 2019 hearing remain relevant and should be considered ongoing rather than outstanding treatment goals. This is consistent with working with an offender with an entrenched pattern of behaviour and significant numbers of years immersed in the antisocial lifestyle, lengthy periods of incarceration and complex personality features. Positively, Mr Narkle has made a sustained effort to engage in treatment process and to attenuate that with additional research and support programs such as NA and AA. Noting that his motivation for the latter may have limited critical consideration of the usefulness of the material specific to his particular characterological features and treatment needs.
[28] Report of Ms Collyer dated 27 October 2020, page 10 [41] (Exhibit 1, page 194).
I take this last sentence to mean that Mr Narkle's characterological features and treatment needs are not necessarily limited to or confined to narcotic and alcohol abuse.

Can Mr Narkle's risk be adequately managed under a supervision order?

I turn now to the question of supervision.
Progress in treatment is good a thing. It is good in and of itself, whether Mr Narkle is released or not, and it should continue. I am not, however, satisfied that the community can be adequately protected by a supervision order. That is the paramount consideration.
Mr Narkle's personality type and his pattern of offending are so deeply entrenched that a good deal more would be required before I could be satisfied that the community would be adequately protected by a supervision order.
Three particular matters lead me to that conclusion.
First, I am not satisfied that Mr Narkle has sufficient self-awareness to even appreciate the risks that he poses. His continued minimisation of his offending leave me with considerable doubt that he would even recognise high risk situations.
There are a number matters in Dr Wynn Owen's report that, in my view, support that conclusion. In dealing with the risk factor being problems with self-awareness, which Dr Wynn Owen describes as 'definitely present', he says:[29]
The failure to recognise one's own risk is regarded as an important dynamic factor for sexual recidivism, which increases the risk of future offending. Mr Narkle is dismissive of risk scenarios and makes categorical statements about being no risk in future. This risk factor is associated with an elevated risk of future sexual offending.
[29] Report of Dr Wynn Owen dated 26 October 2020, page 20 (Exhibit 1, page 179).
Related to this are Mr Narkle's problems with treatment, which are also 'definitely present'. Dr Wynn Owen said:[30]
Treatment has been shown to reduce the risk of future offending. Sex offenders who have not responded to treatment or who are untreated have an elevated risk of future offending. Notwithstanding Mr Narkle's attendance and apparent engagement with treatment since [the] DSO [hearing], his motivations are unclear. He has continued to groom and impression manage his therapist and he could not articulate any potential high risk situations for reoffending or for return to substance abuse (as opposed to emotions) when asked at interview.
[30] Report of Dr Wynn Owen dated 26 October 2020, page 22 (Exhibit 1, page 181).
An associated problem in that regard (which relates to manageability) is the inability, because of poor self-awareness, of a person to identify high-risk situations and which, as Dr Wynn Owen said, result in the individual recurrently placing themselves in high-risk situations.[31]
[31] Report of Dr Wynn Owen dated 26 October 2020, pages 21-22 (Exhibit 1, pages 180-181).
I accept that evidence and I regard it as a significant consideration in Mr Narkle's case as to whether or not his risk could be successfully or adequately managed in the community.
The second important consideration is that I remain of the view that Mr Narkle living isolated and alone with his wife would be an unsuitable residential placement.
Despite Mr Narkle's improved behaviour in the more recent telephone calls, it is still clear, in my view, that the relationship between Mr Narkle and his wife is volatile and is a source of significant stress (to both of them). The relationship is not a protective factor, as it might be in other cases, and the fact that the psychological report refers to and suggests therapeutic intervention between Mr Narkle and his wife that has not as yet manifested itself in any practicable way suggests that that is a matter which militates against placement in her home.
One of the matters that was raised before me by the State was the risk of Mr Narkle's wife's residence becoming known, and the risks to her, Mr Narkle, and to persons visiting the property by the actions of vigilantes.
Counsel for Mr Narkle submitted that it would be the antithesis of justice and fairness if the risk of vigilantes was a reason for remaining on a continuing detention order, rather than a supervision order. Certainly, if that were the only matter that were outstanding, I would agree that it would be a quite unfair outcome. Nevertheless, as the protection of the community is the paramount consideration under the HRSO Act, and the fact that the purpose of the orders is protection rather than punishment, means that any matter which could adversely affect the protection of the community must remain a relevant factor.
The third particular matter that persuades me that a supervision order is not appropriate is that Mr Narkle must prove to me, on the balance of probabilities, that he will substantially comply with the standard conditions of a supervision order.
I am not satisfied that he will comply with the standard conditions.
In particular, I am not satisfied that Mr Narkle would not commit another serious offence. His own statements to the effect that he would not do so are something, in my view, that cannot be taken at face value. Indeed, the categorical nature of his statements that he will not reoffend, as Dr Wynn Owen has said, suggest overconfidence and complacency.
While the following evidence from Dr Wynn Owen was made specifically in relation to return to alcohol use, in my view it may be said to apply equally to the various factors associated with Mr Narkle's risk of reoffending:[32]
What would be the next step that he would need to take?---It would be to continue the work he is doing at the moment, but then to acknowledge that it's not as straightforward as, 'I will not do this again', and engage in some discussion about what might be the context were it to happen and how he would avoid it, whether that's a stress and emotional context, or it's another – another issue – a circumstance where he's offered alcohol or drugs by peers, etcetera. That's the next step.
Yes?---And that – I'm sure that's something that has already started with Dr Riordan.
Right. And is he there yet with that step?---He is not there yet. But you can't make that step without the first one, and I think that consolidation of that has been a part of what the work over this year has been doing.
[32] Ts 520.
In a similar way, it is not simply a matter of saying, in relation to offending, 'I will not do this again', but Mr Narkle being able to recognise the existence of risk and how risk might be avoided.
Similarly, and for the same reason, in my view, I can have no confidence and I am not satisfied that Mr Narkle would be able to comply with the reasonable directions of a Community Corrections Officer. His failure to respond to supervision in the community in the past are such that a longer and more sustained awareness of the risks of non-compliance and strategies for dealing with those risks would need to be developed. In that regard, I have already referred in that regard to the need to be aware of and articulate potential high-risk situations and the strategies that would need to be in place.
For these reasons, I affirm the continuing detention order.
I reiterate what I have said directly to Mr Narkle: treatment under the HRSO Act is an end in and of itself. Mr Narkle should continue his treatment with Dr Riordan. It is important to his wellbeing and the wellbeing of others, including his wife, whether he is released on a supervision order in future or not.

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

AK
Research Associate to the Honourable Chief Justice Quinlan
13 NOVEMBER 2020