The State of Western Australia v Narrier [No 2]

[2022] WASC 49

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- NARRIER [No 2] [2022] WASC 49

CORAM:   HILL J

HEARD:   4 FEBRUARY 2022

DELIVERED          :   16 FEBRUARY 2022

FILE NO/S:   SO 5 of 2021

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

GREGSON JAMES NARRIER

Respondent

Catchwords:

Criminal law – High Risk Serious Offenders Act 2020 (WA) – Application for restriction order - Whether the respondent is a high risk serious offender – Whether unacceptable risk that respondent will commit a serious offence if not subject to restriction order – Whether necessary to make a restriction order to ensure adequate protection of the community – Whether community can be adequately protected by supervision of the respondent – What conditions should be attached to any supervision order - Turns on own facts

Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

Supervision order made

Category:    B

Representation:

Counsel:

Applicant	:	Mr D McDonnell
Respondent	:	Ms A Fedele

Solicitors:

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

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

Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307

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

Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297

Italiano v The State of Western Australia [2009] WASCA 116

The State of Western Australia v Cox [2020] WASC 344

The State of Western Australia v D'Rozario [No 3] [2021] WASC 412

The State of Western Australia v Garlett [2021] WASC 387

The State of Western Australia v Narrier [2021] WASC 250

HILL J:

1. By application dated 23 June 2021, the State of Western Australia (State) applied for orders in relation to the respondent pursuant to s 46 and s 48 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act).

2. On 20 July 2021, at a preliminary hearing under s 46(1) of the HRSO Act, Derrick J was satisfied there were reasonable grounds for believing the court might find that Mr Narrier was a high risk serious offender and fixed a date for the hearing of this application.[1]  His Honour also ordered that Mr Narrier be released on an interim supervision order.

   [1] TheState of Western Australia v Narrier [2021] WASC 250.

3. The restriction order application was initially listed for hearing on 7 December 2021 but was adjourned on that date until 4 February 2022.

4. On this application, the issues that I must decide are:

   (a)whether Mr Narrier is a high risk serious offender, within the meaning of the HRSO Act; and

   (b)if so, whether he should be detained in custody for an indefinite term for control, care or treatment (continuing detention order), or released into the community subject to conditions the court considers appropriate (supervision order).

5. Counsel for the respondent did not concede the State had discharged its onus to establish that Mr Narrier is a high risk serious offender.  This was primarily on the basis that, while Mr Narrier has a lengthy history of offending, Mr Narrier has committed only three serious offences.

6. On the evidence before the court, notwithstanding the relatively limited number of previous serious offences, as that term is defined under the HRSO Act, I have determined that Mr Narrier is a high risk serious offender.  For that reason, it is necessary for me to consider whether Mr Narrier should be released into the community on a supervision order, whether Mr Narrier has discharged his onus of establishing on the balance of probabilities that he will substantially comply with the standard orders of a supervision order, the suitability of the proposed accommodation (given its short term nature), and the length and conditions of any supervision order.

7. Counsel who appeared for the State submitted that, in the circumstances of this case, Mr Narrier should be released on a supervision order subject to a number of conditions for a period of at least five years.  Counsel for the respondent submitted that any supervision order should be for a period of two years. 

8. For the reasons that follow, I have concluded that, in the circumstances of this case, the risk that Mr Narrier may commit a serious offence can be managed within the community.  I also consider that, notwithstanding the uncertainty of long‑term accommodation options for Mr Narrier, the current proposed accommodation is suitable and that, on the balance of probabilities, Mr Narrier will substantially comply with the standard orders of a supervision order.  In my view, the supervision order should be for a period of five years and not all of the conditions proposed by the State should form part of the order.

Legislative background

1. Under s 35 of the HRSO Act, the State may apply for a restriction order in relation to a serious offender under a custodial sentence who is not a serious offender under restriction, where there is a possibility that the offender might be released from custody within one year of the date the application is made.  A serious offender under restriction is a person who is subject to a restriction order or an interim supervision order.  Section 35(2) provides that an application may be made whether the custodial sentence was imposed before or after the commencement of s 35 of the HRSO Act and whether or not the offender is in custody.

2. It was not in dispute that, at the time the application was made, Mr Narrier was a serious offender under a custodial sentence who was due for release within one year following the making of the application.  As such, the application met the formal requirements of the HRSO Act.

3. This application must be determined under s 48 of the HRSO Act.  This section provides:

   48. Restriction orders

   (1) If the court hearing a restriction order application finds that the offender is a high risk serious offender, the court must -

   (a) make a continuing detention order in relation to the offender; or 

   (b) except as provided in section 29, make a supervision order in relation to the offender.

   (2) In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.

4. A continuing detention order is, pursuant to s 26(1) of the HRSO Act, an order that 'the offender be detained in custody for an indefinite term for control, care, or treatment'.  If a court makes a supervision order, there are conditions that the court is required to impose (s 30(2) of the HRSO Act) and conditions that may be imposed (s 30(3), s 30(5) and s 30(6) of the HRSO Act).

5. The term 'high risk serious offender' is defined in s 7 of the HRSO Act.  Specifically, it is defined in the following terms:

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

   (2) The State has the onus of satisfying the court as required by subsection (1). 

   (3)In considering whether it is satisfied as required by subsection (1), the court must have regard to the following -

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

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

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

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

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

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

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

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

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

   (j) any other relevant matter.

   (4) In considering whether it is satisfied as required by subsection (1), the court must disregard the possibility that the offender might temporarily be prevented from committing a serious offence by -

   (a) imprisonment; or

   (b) remand in custody; or

   (c) the imposition of bail conditions.

6. Pursuant to s 5 of the HRSO Act, an offence is a 'serious offence' if it is specified in sch 1 div 1 of the HRSO Act. 

7. The State has the onus of satisfying the court that Mr Narrier is a high risk serious offender.  The court has to be satisfied of this by acceptable and cogent evidence and to a high degree of probability.  This is a standard that is greater than a finding on the balance of probabilities and less than a finding of beyond reasonable doubt.  It is otherwise incapable of further definition.[2]  This does not necessarily mean that the risk must be at some high percentage of probability; a risk may be less than 50% yet still be unacceptable.  However, the court must identify what it is that constitutes the risk and what makes it unacceptable and then consider whether or not those factors have been proved to the requisite standard, that being to a high degree of probability, furnished by acceptable and cogent evidence.[3]

   [2] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [28] (Steytler P & Buss JA).

   [3] Director of Public Prosecutions (WA) v GTR [34] (Steytler P & Buss JA).

8. A finding that there is an unacceptable risk is a balancing exercise which requires the court to have regard to, among other things, the nature of the risk (the commission of a serious offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition whilst having regard, on the other hand, to the serious consequences for Mr Narrier if an order is made (either detention, without having committed an offence, or being required to be subject to what might be an onerous supervision order).[4]

   [4] Italiano v The State of Western Australia [2009] WASCA 116 [46] (Buss JA).

9. An unacceptable risk in the context of the HRSO Act is a risk which is unacceptable having regard to a variety of considerations.  These may include the likelihood of the person offending, the type of offence which the person is likely to commit, and the consequences of finding that an unacceptable risk exists.  I am required to consider whether, having regard to the likelihood of Mr Narrier offending and the offence that might be committed, the risk of that offending is so unacceptable that, notwithstanding the fact that Mr Narrier has already been punished for the offences he has committed, it is necessary in the interests of the community to ensure that he is subject to further control or detention.[5]

   [5] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63] (Wheeler JA).

10. Section 29 of the HRSO Act provides that a court cannot make a supervision order unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order.  The onus of proof is on the respondent pursuant to s 29(2) of the HRSO Act.  The standard conditions of a supervision order are those set out in s 30(2) of the HRSO Act.  They include conditions as to reporting, notification of changes of circumstances, supervision by a community corrections officer, not leaving the State of Western Australia without permission, not committing a serious offence, and being subject to electronic monitoring.  A supervision order may also include such other conditions as the court considers appropriate to ensure adequate protection of the community, for rehabilitation, care or treatment of the offender and to ensure the adequate protection of victims.

11. The words 'will substantially comply with' in s 29(2) of the HRSO Act are identical to those that appeared in provisions of the DSO Act and bear the same meaning.  These words should be given their ordinary meaning, consistent with the purposes of the HRSO Act and the general conditions of a supervision order, as well as the overall object of the HRSO Act, which is to achieve the adequate protection of the community by appropriate management and mitigation of the unacceptable risk that the offender will commit a serious offence.[6]

    [6] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52(1)].

12. Even if the court is satisfied that the respondent will substantially comply with the standard conditions of a supervision order, the court must make a continuing detention order if it is not satisfied that conditional release under a supervision order will ensure an adequate degree of protection to the community.

13. The State does not seek an order that Mr Narrier be made subject to a continuing detention order.  The State seeks an order that Mr Narrier be released on a supervision order, which was not contested by Mr Narrier.

14. Notwithstanding the agreement of the parties, pursuant to s 7(1) of the HRSO Act, I must be satisfied that it is necessary to make a restriction order in relation to Mr Narrier and that a supervision order is the appropriate restriction order.  In determining whether I am satisfied as required, I must have regard to the matters referred to in s 7(3) of the HRSO Act.

15. The requirements of s 7(1) of the HRSO Act have been the subject of recent analysis by both Corboy J in The State of Western Australia v Garlett[7] and Quinlan CJ in The State of Western Australia v D'Rozario [No 3].[8]  Corboy J considered (a view with which Quinlan CJ agreed) that under the current form of s 7(1) (as compared to the previous legislation), the need to ensure adequate protection for the community forms part of the court's determination of whether the offender is a high risk serious offender and is not merely the paramount consideration in deciding what form of order should be made in respect of someone who has been found to be a high risk serious offender.  I agree with the conclusions of their Honours and have applied their analysis in this application.

    [7] The State of Western Australia v Garlett [2021] WASC 387.

    [8] The State of Western Australia v D'Rozario [No 3] [2021] WASC 412 [21] – [23].

16. In determining whether there are reasonable grounds to form the requisite belief, the court is required to consider the admissible evidence before it, as specifically modified by the HRSO Act.  As Allanson J stated in The State of Western Australia v Cox Aka Roe:[9]

    If there is to be a reasonable ground based on the existence of facts, I need to look at the evidence.  Section 46, read with s 84 and s 7, provides for the evidence on which the court may act in a restriction order proceeding.  Although s 84(3) refers to the court acting on admissible evidence, s 84(4) and s 84(5) modify the rules of evidence to allow the court to receive into evidence material including 'any document relevant to the antecedents' of the offender; and any medical, psychiatric, psychological or other assessment relating to the offender; and any information indicating whether or not the offender has a propensity to commit serious offences in the future.

    [9] The State of Western Australia v CoxAka Roe [2020] WASC 344 [17].

The evidence

1. The State tendered two volumes of documents for the purposes of the application[10] as well as a supplementary report of Ms  Emma Cashmore[11] and the statements of facts and prosecution notices of Mr Narrier's contraventions of his interim supervision order.[12]

   [10] Exhibits 1A and 1B.

   [11] Exhibit 2.

   [12] Exhibit 3.

2. The books of materials contained relevant information on Mr Narrier's prior offending, his conduct in prison, previous reports that have been prepared on him as well as reports which have been prepared for this hearing.  The reports prepared for the hearing were the reports of Dr Natalie Pyszora, a psychiatrist, Ms Julie Hasson, a forensic psychologist, Ms Tania Wilson‑Brown, a senior counselling psychologist employed by the Department of Justice, and two reports from Ms Cashmore, a senior community corrections officer (CCO) employed by the Community Offender Monitoring Unit (COMU).

3. At the hearing before me, each of Dr Pyszora, Ms Hasson, and Ms Cashmore gave evidence.  The respondent elected not to give or adduce any evidence.

Factors under s 7(3) of the Act

Mr Narrier's antecedents and criminal record (s 7(3)(g))

1. Mr Narrier is a 33‑year‑old Noongar man.  He has an older sister and a number of half‑siblings.  Mr Narrier's parents split up when he was young and he lived with his maternal grandparents until he was approximately five years of age.  At this time, Mr Narrier returned to Perth to live with his mother and stepfather. 

2. Mr Narrier left school at 15, following a physical altercation with another student.  Mr Narrier describes his reading and writing skills as being good, which was consistent with the observations of each of the experts.[13]  Since leaving school, Mr Narrier has not completed any further training or education and, until recently, had never worked.

   [13] ts 73 (Dr Pyszora); Exhibit 1B, p 501 (Ms Hasson).

3. Mr Narrier has a teenage son from a prior relationship, who is in the care of the Department of Communities until he is 18.  Mr Narrier had some contact with his son while in custody and has maintained communication with him since his release.  Mr Narrier is currently in a relationship which commenced shortly after his release from custody.

4. Mr Narrier has a significant history of alcohol abuse and use of illicit substances, predominantly cannabis and methamphetamine. 

5. Mr Narrier has a lengthy criminal record.  He was convicted of his first offence at the age of 14.  His record indicates that he has a propensity to engage in aggressive and violent behaviour.  Some of the offences have occurred in the presence of other co‑accused and some have involved the use of a weapon of some sort.  The offences of which Mr Narrier has been convicted include assaulting a public officer (in February 2009), unlawful wounding (March 2009), assault (April 2009 and July 2017), carrying a controlled weapon (May 2013) and carrying an article with intent to cause fear (May 2017, and two separate offences in July 2017).

6. For the purposes of the HRSO Act, Mr Narrier has been convicted of three serious offences; two of which occurred on the same date.  

7. In June 2014, Mr Narrier was convicted of one offence of stealing, one offence of attempted aggravated armed robbery, and one offence of aggravated armed robbery.  These offences occurred at the Morley Market car park.  Mr Narrier and a co-accused approached an unoccupied vehicle.  The co‑accused smashed the side window of the vehicle to gain entry, rummaged through the vehicle and stole a pair of black sunglasses and a vehicle key.  A witness saw the incident and photographed Mr Narrier and the co‑accused and showed the photos to the owner of the vehicle.   

8. Mr Narrier and his co‑accused were aware they had been photographed and approached the victims.  They demanded the photographer delete the photos from her mobile phone and the co-accused demanded the keys from the owner.  Mr Narrier grabbed the left arm of the photographer demanding the phone and grabbed the phone from the victim's hand causing damage to the phone cover.  She retrieved her phone and the co‑accused demanded the phone back, producing a screwdriver.  They then approached the owner of the vehicle, holding the screwdriver, and demanded the keys.  Shortly afterwards, both Mr Narrier and his co‑accused were apprehended by police. 

1. Mr Narrier was sentenced to a total of 3 years and 4 months' imprisonment for these offences.  He served the full term and was released on 15 May 2017. 

2. Ten weeks after completing this term of imprisonment, Mr Narrier committed a further eight offences (index offences). In 2018, the respondent was convicted on his pleas of guilty to these offences. The offences comprised three offences of criminal damage contrary to s 444(1)(b) of the Criminal Code WA (Code), three offences of being armed so as to cause fear contrary to s 68 of the Code, one offence of armed robbery contrary to s 392(c) of the Code, and one offence of assault with intent to resist arrest contrary to s 317A(c) of the Code.  The facts of the index offences were as follows.

3. In relation to count 1 (criminal damage), at about 8.40 am on 22 July 2017 Mr Narrier was at a unit in Finchley Crescent, Balga, where he was living with his mother and stepfather.  The respondent became enraged because he could not obtain a cigarette.  In his anger, the respondent picked up some house bricks and a fascia from the front yard.  He threw the bricks and fascia onto the roof of the unit causing damage to the roof tiles.

4. Count 2 concerned a charge of being armed in a way so as to cause fear.  Soon after the commission of the offence in Count 1, a contractor came to the unit with a work order to do repairs to the front door lock.  Mr Narrier answered the door and told the contractor that no work needed to be done and to 'fuck off'.  Mr Narrier armed himself with a house brick and a claw hammer and approached the contractor.  He raised the house brick above his head in a threatening manner but did not say anything.

5. At this point, Mr Narrier grabbed a nearby pram and rammed it into the contractor's vehicle, causing dents to the front left passenger door of the contractor's vehicle.  This comprised count 3, being a further charge of criminal damage

6. At the same time, a Swan Taxi was being driven along Finchley Crescent.  While armed with the house brick and the claw hammer, Mr Narrier approached the taxi.  He threw the house brick at the taxi causing the front bumper of the vehicle to separate from the front passenger side fender.  This was count 4, being a further charge of criminal damage.

7. Count 5 concerned another charge of being armed in a way so as to cause fear.  Mr Narrier continued to walk down Finchley Crescent.  At the same time a neighbour, Ms Pierina Hamilton, who was 71 years old and lived a short distance away, reversed her car out of her driveway and onto the verge outside the house that was next door to her house.  Mr Narrier approached Ms Hamilton holding the claw hammer.  He raised the hammer and, in a threatening manner, demanded that Ms Hamilton get out of her car and give him her keys.  Ms Hamilton was scared and confused.  Mr Narrier reached inside the car for the keys and pulled some of them away from the ignition key, leaving the ignition key in the ignition.  Mr Narrier then threw the other keys on the ground.

8. Ms Hamilton's son, Mr David Hamilton, who lived with his mother, had moved his car to allow his mother to reverse out of the driveway.  While Mr Narrier was confronting his mother, Mr Hamilton was parking his car in the carport.  When he heard the commotion and saw what was happening, he walked over to his mother's vehicle and asked if she was alright.  Mr Narrier approached Mr Hamilton while still carrying the claw hammer and demanded Mr Hamilton's car keys.  Mr Hamilton backed down his driveway.  Mr Narrier followed Mr Hamilton raising the claw hammer as if to swing it.  Mr Hamilton crouched down, cowering on the ground outside the front door with his arm up for protection.  Fearing that he would be struck, Mr Hamilton handed Mr Narrier his car keys.  Mr Narrier then ran to Mr Hamilton's car, sat in the driver's seat and started the car.  However, Mr Narrier was unable to drive away because by this time he had been hemmed in by police who had been called to the scene.  The theft of Mr Hamilton's car that formed the basis of the armed robbery offence (count 6) was constituted by Mr Narrier taking control of the car. 

9. Count 7 concerned the charge of assault with intent to prevent arrest.  As the police pulled into the driveway, Mr Narrier was reversing Mr Hamilton's car out of the driveway.  He stopped the car when he saw the police car but then accelerated in reverse into the front of the police car causing damage.  After colliding with the police car, Mr Narrier continued to accelerate, spinning the wheels in an attempt to push the police car out of the driveway and out of the way so he could drive away.  When this was unsuccesful, he drove forward and into the shed doors at the back of the carport of the Hamiltons' house.  The police then moved forward blocking the vehicle between them and the shed doors.

10. The final charge was another count of being armed in a way so as to cause fear.  The police got out of their car and called to Mr Narrier to get out of the car.  Mr Narrier did so, still holding the claw hammer.  Mr Narrier held the claw hammer above his head as he approached the police.  He was called on several times to drop the hammer but did not do so.  Fearing for their safety, one officer drew his firearm and another drew a taser.  The taser was deployed and struck Mr Narrier, which caused him to become incapacitated.  He was then arrested and handcuffed.

11. On 12 January 2018, Mr Narrier was sentenced to a total of 4 years' imprisonment backdated to 22 July 2017.  A sentence of 3 years and 6 months' imprisonment was imposed for the armed robbery offence.  Mr Narrier was made eligible for parole.  Ultimately, Mr Narrier was not granted parole and was released from prison on 21 July 2021 on an interim supervision order by Derrick J.

Reports prepared under s 74 for the hearing and extent to which Mr Narrier cooperated with the examinations - s 7(3)(a)

1. The State adduced evidence from two experts, Dr Pyszora (a forensic psychiatrist) and Ms Julie Hasson (a forensic psychologist) at the hearing of the application.  Both experts prepared written reports under s 74 of the HRSO Act and gave oral evidence at the hearing.

Dr Natalie Pyszora

1. Dr Natalie Pyszora is a consultant forensic psychiatrist with over 20 years' experience.  Dr Pyszora interviewed and assessed Mr Narrier during three interviews conducted on 29 September 2021 and 7 October 2021.  She also reviewed volume 1 of the book of materials, an affidavit of Ms Hemsley filed in support of the application and attended a case management meeting with Ms Cashmore and Ms Wilson‑Brown in preparing her report.  Dr Pyszora described Mr Narrier as being engaged and easy to develop rapport with over the course of the interviews.  She described him as being open and honest.[14] 

   [14] Exhibit 1B, p 553; ts 91.

2. Dr Pyszora spoke to Mr Narrier about the index offences.  Mr Narrier told Dr Pyszora that within days of being released from prison, he started using methamphetamine twice a day.  On the day of the index offences, he was coming down from the effects of the drugs and had an argument with his then partner.  While he had previously described 'blacking out' due to rage, when Dr Pyszora discussed this with him, it was clear he did not have memory loss but used this expression to mean he could not control his behaviour.  That is, the combination of the drugs and his inability to control his emotions caused him to become angry and take out his anger indiscriminately on those he came across.[15]

   [15] Exhibit 1B, p 528; 550.

3. Dr Pyszora asked Mr Narrier about his use of weapons.  Mr Narrier denied he was interested in weapons per se, but said that he would carry them to defend himself if he was going to a rough area.  Mr Narrier also denied that any of his previous acts of violence were pre‑meditated and said that they 'just happen'.  He also denied that he got angry easily but said he will snap if someone 'keeps going on at him'.[16]

   [16] Exhibit 1B, p 551. 

4. Dr Pyszora also asked Mr Narrier about his attitude to psychological treatment.  Mr Narrier told her that he does not think the programs will make any difference to his rehabilitation or his chances of success in the community.  He expressed the view that he would rather do programs when he is out of prison.  He stated that these programs bring up the past and 'he doesn't want to think about this' and cannot see the relevance of it.[17]

   [17] Exhibit 1B, p 552.

5. Dr Pyszora asked Mr Narrier about his history of alcohol and substance use and whether he had received treatment.  Mr Narrier disclosed that he commenced use at around 16 years of age and has a long history of sniffing solvents, using cannabis and methamphetamine as well as alcohol, including while in prison.[18]

   [18] Exhibit 1B, p 536 – 537.

6. Mr Narrier told Dr Pyszora he was keen to return to Moora and that he did not consider any high risk situation for offending would occur if he lived there.  Mr Narrier could not describe a high risk situation for his repeat serious offending apart from identifying that if he started using drugs again he would steal to fund his drug use and be imprisoned again.  He told Dr Pyszora that drug use on its own did not cause him to be violent; there needed to be an additional trigger.[19]

   [19] Exhibit 1B, p 552.

7. Mr Narrier stated that while he had not had any difficulty being on the interim supervision order, he did not think of the order if he was engaged in an activity which could potentially put him in breach of the order.[20]

   [20] Exhibit 1B, p 552.

8. Dr Pyszora's diagnosis was that Mr Narrier had an antisocial personality disorder and a substance use disorder in relation to methamphetamine and inhalants, and to a lesser extent cannabis and alcohol.[21] 

   [21] Exhibit 1B, p 553.

9. Dr Pyszora expressed the opinion that Mr Narrier has significant outstanding criminogenic needs and has problems with insight, emotional control, impulsivity, and pro‑criminal cognitive distortions.  In her view, Mr Narrier requires psychological intervention to develop cognitive skills in problem solving, consequential thought and decision making, as well as coping skills for emotional management and to prevent a relapse into alcohol and substance use.[22]

   [22] Exhibit 1B, p 555.

10. Dr Pyszora assessed Mr Narrier's risk of reoffending using the Hare Psychopathy Checklist‑Revised (PCL‑R) as well as the Historical, Clinical and Risk Management 20, Version 3 (HCR‑20 V3).  In relation to the PCLR, Mr Narrier scored well below the threshold for psychopathy. 

11. In relation to the HCR-20 V3, Mr Narrier had numerous historical risk factors, clinical risk factors, and risk management factors present or partially present.  In relation to historical risk factors, Dr Pyszora assessed Mr Narrier as having the following risk factors present (previous violence, other antisocial behaviour, problems with relationships, substance use, personality disorder, violent attitudes, problems with treatment or supervision response) or partially present (employment).  In relation to Mr Narrier's response to treatment, Dr Pyszora expressed the view that Mr Narrier did not experience imprisonment as punishment but as part of the cycle of his offending.

12. On clinical risk factors, Dr Pyszora assessed the following risk factors as being present (insight) or partially present (violent ideation or intent, treatment or supervision response).  Finally, in relation to risk management factors, Dr Pyszora assessed the following risk factors as being present (future problems with living situation, personal support, treatment or supervision response, stress or coping) or partially present (professional services and plans).

13. On the basis of this assessment, Dr Pyszora concluded that Mr Narrier presented a high risk of committing a serious offence involving violence if his risk factors were not managed.  The most likely scenario for a future serious offence was armed robbery while under the influence of substances.  If the victim resisted the robbery, it was possible that Mr Narrier could inflict serious harm on the victim.  It was also possible that Mr Narrier could engage in serious violence in the context of 'interpersonal conflict with antisocial peers' which could involve weapons and result in serious harm.

14. Dr Pyszora expressed the opinion that if Mr Narrier relapsed into substance use, it was 'almost inevitable' that he would relapse into serious robbery offences.  She explained that this was because substance use destabilises his emotional state and disinhibits him, lowers his tolerance to cope with interpersonal stressors which cause anger, and increases his need to undertake robberies to fund his substance use.[23]

    [23] Exhibit 1B, p 562.

15. Dr Pyszora considered that Mr Narrier presented a chronic risk of violent offending and that, if he relapsed into substance use, his offending was likely to escalate rapidly over a 'matter of days to weeks'.  Warning signs of escalating risk would include escalating interpersonal conflict with antisocial peers or girlfriends or other stressors.[24]

    [24] Exhibit 1B, p 563. 

16. Dr Pyszora's opinion was that if Mr Narrier was not subject to a restriction order, he would present a high risk of committing a serious offence.  She recommended that his management plan be based on monitoring (to ensure early detection of escalating risk), treatment (to address Mr Narrier's outstanding criminogenic needs), supervision (to place appropriate restrictions on his freedom), and victim safety planning (general management of the risk of serious offending as the victims of his previous offending have predominantly been strangers).[25]

    [25] Exhibit 1B, 563 – 564. 

17. In her oral evidence, Dr Pyszora explained there were three scenarios that had been present when Mr Narrier relapsed into substance use: first, when he is feeling bored and does not have structure in his day to day life; second, when he is dealing with negative emotions and stress; and third, when he is in the company of peers who misuse substances.  Dr Pyszora expressed the opinion that a key aspect of the psychological counselling Mr Narrier was undertaking is for him to develop strategies to deal with frustration and stress.[26] 

    [26] ts 71.

18. Under cross-examination, Dr Pyszora agreed that Mr Narrier was motivated to stay out of prison, to continue his attempts to form a relationship with his 16‑year‑old son and to try and abide by the conditions of his interim supervision order by avoiding substance use.[27] 

Ms Julie Hasson

[27] ts 87.

1. Ms Hasson is a forensic psychologist with over 15 years' experience.  Ms Hasson interviewed Mr Narrier on one occasion for the purpose of preparing a report under s 74 of the HRSO Act.  Ms Hasson reported that Mr Narrier was polite and cooperative throughout the interview, although his demeanour changed towards the end of the assessment when a 'female acquaintance he referred to as his girlfriend' became demanding of his time and attention, including because of her expectation that Mr Narrier would take her to an appointment.  Ms Hasson expressed the view that Mr Narrier displayed deficits in his assertiveness, conflict resolution and communication skills in dealing with this situation as well as a lack of insight and judgment.[28]

   [28] Exhibit 1B, p 500 - 501. 

2. In relation to the index offences, Mr Narrier told Ms Hasson that he attributed his offending to being 'paranoid' and unable to adapt to living in the community after being in prison for several years.  When asked why he had threatened an elderly lady and her son, Mr Narrier answered that he needed to get away.  Ms Hasson expressed the view that Mr Narrier had limited insight into his offending behaviour and struggled to understand the victim's experience.[29]  In relation to his other offences, Mr Narrier attributed his offending to alcohol and substance abuse, the presence of anti‑social peers, anger management issues, and feelings of stress if there were issues in his intimate relationships.  Ms Hasson expressed the opinion that Mr Narrier's offending behaviour suggests he lacks problem solving, conflict resolution, assertiveness, and communication skills.[30]

   [29] Exhibit 1B, p 510.

   [30] Exhibit 1B, p 511. 

3. Ms Hasson also diagnosed Mr Narrier as having an anti‑social personality disorder with substance abuse issues.[31]

   [31] Exhibit 1B, p 524.

4. Ms Hasson assessed Mr Narrier's risk of reoffending using the same risk assessment instruments as Dr Pyszora, namely the PCL‑R as well as the HCR‑20 V3.  In relation to the PCL‑R, Ms Hasson agreed with Dr Pyszora that Mr Narrier's score was well below the threshold for the construct of psychopathy in Australia.[32] 

   [32] Exhibit 1B, p 517.

5. In relation to the HCR‑20 V3, there were some minor differences between Dr Pyszora and Ms Hasson, although both agreed that Mr Narrier had numerous historical risk factors, clinical risk factors and risk management factors present or partially present.  In relation to historical risk factors, Ms Hasson assessed Mr Narrier as having the following risk factors present (violence, other antisocial behaviour, relationships, employment, substance use, personality disorder, traumatic experiences, violent attitudes, and treatment or supervision response).  On clinical risk factors, Ms Hasson assessed the following risk factors as being present (insight), present in the future (violent ideation or intent) or partially present (treatment or supervision response).  Finally, in relation to risk management factors, Ms Hasson assessed the following risk factors as being present (future problems with living situation and personal support, treatment or supervision response) or possibly present (professional services and plans, stress or coping).[33]

   [33] Exhibit 1B, p 517 – 522.

6. On the basis of this assessment, Ms Hasson concluded that Mr Narrier presented a high risk of reoffending in three different scenarios.  In all of these scenarios, Ms Hasson considered that Mr Narrier is likely to be under the influence of alcohol, illicit substances or both.  The first scenario was that she considered Mr Narrier was likely to behave in an aggressive and violent manner towards an individual who tried to stop him from committing an offence or who is not compliant during the commission of an offence, such as a robbery or armed robbery.  She considered it likely that Mr Narrier would be in possession of a weapon and that threats of harm and violence will occur which could cause harm to the victim.  The second scenario was that Mr Narrier could engage in serious violence in the context of an argument with an individual, either known or unknown to him, which could involve weapons or his fists and result in serious harm.  The third scenario is Mr Narrier trying to avoid being arrested by police and possibly injuring a police officer in an attempt to avoid capture.[34]

   [34] Exhibit 1B, p 522.

7. Ms Hasson expressed the view that Mr Narrier's risk of reoffending is chronic as he has not been able to reside in the community for any length of time previously without engaging in offending behaviour.  His continued association with antisocial peers and family members, particularly those with substance abuse issues, together with Mr Narrier's anti‑social and anti‑authority attitudes increase the imminence of the risk of future violence.

8. Ms Hasson assessed Mr Narrier as being at high risk of reoffending with a high likelihood of engaging in the offending behaviour described in the three scenarios she identified.  Because Mr Narrier had not undertaken any programs or counselling, he had not had an opportunity to develop a relapse prevention plan or strategies to avoid reoffending.  Ms Hasson expressed the opinion that:[35]

   [Mr Narrier] does not appear to be cognisant of his internal and external risk factors.  He requires considerable assistance to make and sustain change.

   [35] Exhibit 1B, p 523.

9. Ms Hasson expressed the view that antisocial peers and family members are significant risk factors for Mr Narrier.  For this reason, monitoring of his connections and associations were, in her view, essential to manage his risk of reoffending and to obtain an accurate understanding of his psychosocial adjustment.  She expressed the view that regular urinalysis will assist Mr Narrier to abstain from using illicit substances and that counselling in order to build emotional and behavioural regulation and self‑management skills was key.[36]

   [36] Exhibit 1B, p 523.

1. Ms Hasson's opinion was that in many of Mr Narrier's previous violent offences, violence was not the goal or intent of the aggressive act but was a means to an end.  She observed that despite a range of sentences being imposed on Mr Narrier, he had continued to offend.  Based on her assessment of Mr Narrier, she concluded that Mr Narrier was a high risk of serious reoffending if not subject to a restriction order under the HRSO Act.  In her view, if Mr Narrier was to be subject to a supervision order, it needed to be of at least five years' duration.  The focus of any supervision order should be on Mr Narrier developing a positive relationship with those providing intervention and monitoring so as to enhance the likelihood that Mr Narrier would comply with the conditions of the order.[37]

   [37] Exhibit 1B, p 525.

2. Ms Hasson stressed the importance of Mr Narrier developing healthy intimate and non-intimate relationships as well as seeking meaningful employment or volunteer work, appropriate hobbies, interests and leisure pursuits, maintaining stable accommodation, and acquiring the necessary skills to live independently in the community.  In her opinion, Mr Narrier requires input to help him with 'affect regulation, emotional and behavioural stability, meeting his needs without the use of aggression and violence or harm to others'.  These treatment needs can be addressed through continued engagement in individual psychological counselling which is currently provided by the Adult Community Psychological Services.[38]

   [38] Exhibit 1B, p 525.

3. In re-examination, Ms Hasson agreed that Mr Narrier's motivation to stay out of prison was much higher than in the past, and that Mr Narrier had started to make some connections in the community and had things he wanted in the community.[39] 

Other assessments relating to Mr Narrier (s 7(3)(b))

[39] ts 108.

1. The other assessment prepared for the purpose of this application were prepared by Ms Wilson‑Brown.  In addition, the court received two reports from Ms Cashmore.

Report of Ms Wilson-Brown

1. Ms Wilson-Brown, a senior counselling psychologist, prepared a proposed high risk serious offender management plan in the event that Mr Narrier was made subject to a restriction order.

2. Ms Wilson-Brown did not interview Mr Narrier before preparing her report but spoke to both Dr Pyszora and Ms Hasson, as well as departmental staff including Ms Cashmore and Ms Richardson, the counselling psychologist that Mr Narrier has been referred to through Adult Community Psychological Services.  At the time of writing her report, Mr Narrier had only had two counselling sessions with Ms Richardson.  Ms Richardson expressed the view that Mr Narrier presented as 'highly institutionalised'.  Mr Narrier reported to Ms Richardson that he did not want to return to prison and wanted to address his substance use.[40]

   [40] Exhibit 1B, p 493. 

3. Ms Wilson-Brown noted that if Mr Narrier was made subject to a restriction order and released on a supervision order, he would continue to receive individual intervention with a psychologist from Psychological Services (Forensic Psychological Services/Specialist Psychological Services) to address his outstanding criminogenic needs.  Ms Wilson‑Brown expressed the view that it may be appropriate for Mr Narrier to be included in intensive group interventions addressing substance use, general violence, problem solving and self-management, and that this should be determined by his treating psychologist.[41]  Given that Mr Narrier had declined to participate in any group interventions previously, it was unclear whether these would mitigate the identified risk factors.

   [41] Exhibit 1B, p 495. 

4. Ms Wilson-Brown identified a number of additional risk management options, including engagement with professional support agencies, to develop Mr Narrier's independent living skills, increase his employment skills and develop work opportunities.[42]

   [42] Exhibit 1B, p 496.

5. Ms Wilson-Brown expressed the view that the following areas had been identified as potential targets for treatment: developing a substance use relapse prevention plan; addressing the use of violence to resolve conflict; monitoring his adjustment to the community; developing Mr Narrier's engagement with pro‑social supports; and developing his skills in forming and maintaining healthy intimate relationships.[43]

Community Supervision Assessment Reports

[43] Exhibit 1, p 496. 

1. Ms Emma Cashmore is a senior CCO with COMU and prepared two reports which were tendered at the hearing.[44]

   [44] Exhibit 1B, p 566 - 586; Exhibit 2.

2. The first report was dated 2 November 2021 and summarised Mr Narrier's offending history, his behaviour in prison, his progress while subject to an interim supervision order, and a proposed community supervision plan.

3. The report noted that Mr Narrier had demonstrated sound compliance with the supervision requirement of his interim supervision order and that he had attended each of his scheduled appointments notwithstanding the ongoing instability with his accommodation.  Ms Cashmore noted that, since being released on an interim supervision order, Mr Narrier had changed accommodation on four occasions.  The report also disclosed the results of the urinalysis testing that Mr Narrier had been directed to undertake.  In September and October 2021, Mr Narrier tested positive to cannabis on five occasions, although given the latter results indicated a lower ratio of metabolites, there may have been no ongoing cannabis use.  Mr Narrier was charged with contravening a requirement of a supervision order under s 80 of the HRSO Act.

4. At the time of Ms Cashmore's first report, suitable accommodation had not been identified for Mr Narrier.  As a consequence, the restriction order hearing was adjourned until 4 February 2022 to enable further enquiries to occur. 

5. An updated report was prepared by Ms Cashmore on 25 January 2022.[45]  At the time of the updated report, Mr Narrier had changed accommodation on a further three occasions.  At the time of the report, short term accommodation had been identified for Mr Narrier and his partner, Ms H.  Ms Cashmore confirmed that Mr Narrier would continue to receive support to obtain stable, independent accommodation. 

   [45] Exhibit 2. 

6. Ms Cashmore also provided an update on Mr Narrier's performance on the interim supervision order.  She confirmed that since the date of her first report, Mr Narrier had continued to comply with the supervision requirement of his interim supervision order, had been required to undertake urinalysis on a further six occasions, all of which had returned a negative result, and had attended a further six counselling sessions with Ms Richardson.  Ms Cashmore confirmed that Mr Narrier had consistently engaged in these counselling sessions in a meaningful manner.[46]

Information indicating whether or not Mr Narrier has a propensity to commit serious offences in the future - s 7(3)(c)

[46] Exhibit 2, p 2. 

1. As Murray AJA stated in Director of Public Prosecutions for Western Australia v GTR,[47] 'propensity' in this context has the following meaning:

   It means that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of the quality of a diagnosable mental illness or personality disorder.

   [47] Director of Public Prosecutions for Western Australia v GTR [178] (Murray AJA).

2. Mr Narrier has a significant record of offending which commenced when he was 14 years of age.  It is clear from Mr Narrier's offending history that he has a propensity to commit serious offences of a violent nature.

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

1. The State submits there is a pattern of behaviour in Mr Narrier's offending, namely that he engages in 'impulsive and aggressive behaviour to gain money or possessions or when he feels he is being disrespected.'[48]  This submission was supported by Ms Hasson, who expressed the opinion that the history of Mr Narrier's offending demonstrated a clear pattern of violence, although there was diversity in weapon choice, the subject of his violent acts, and whether the acts were reactive or deliberate.

   [48] State's submissions [89].

2. I accept the evidence of Ms Hasson that there is a pattern in Mr Narrier's offending behaviour, namely that he engages in impulsive behaviour to obtain money or possessions and that he will use weapons that are available to him.

Efforts to address the causes of offending behaviour - s 7(3)(e)

1. In November 2010, Mr Narrier completed a Think First Program.  The Program Completion Report concludes that by the end of the program the program facilitator had assessed Mr Narrier as having made gains in the areas of problem recognition, problem solving, and self‑management.

2. On 21 February 2011, Mr Narrier commenced the Violent Offender Treatment Program which is a 62 session program over 21 weeks.  Each session runs for approximately six hours and is delivered three days each week.  Mr Narrier attended three sessions before removing himself from the program.  This was on the basis that Mr Narrier said he could not attend every day and could not sustain attendance for the duration of the program.  At the time, Mr Narrier was told his withdrawal from the program may affect his security rating and any future decision regarding his release on parole.  Mr Narrier's response was that he did not care about parole.[49]

   [49] Exhibit 1A, p 464.

3. On 10 March 2015, Mr Narrier commenced another Think First Program, comprising 30 sessions.  Mr Narrier was required to attend the program to address his externalisation of blame, lack of offence awareness and lack of victim empathy.  On 19 March 2015, Mr Narrier was removed from this program because of his non-attendance at sessions and his statements that he would not be able to attend future sessions.  Mr Narrier told the program's facilitators that his non‑attendance at sessions was due to him being preoccupied and distracted by his then current court proceedings.  Mr Narrier told the program facilitators that his removal from the program was a setback and that he wished to complete the program later in the year.

4. On 5 February 2019, Mr Narrier commenced the Pathways Program.  Mr Narrier completed only nine hours of the Pathways Program before stating that he no longer wished to attend.  Due to his limited program attendance, Mr Narrier did not make any significant gains towards his treatment needs.

5. In addition to these programs, Mr Narrier declined to participate in a Pathways Program in September 2015 and a Violent Offender Treatment Program in October 2019. 

Whether participation in rehabilitation programs have had a positive effect on Mr Narrier - s 7(3)(f)

1. Mr Narrier has declined most of the opportunities afforded to him to participate in rehabilitation programs.  The only program that he completed was more than 10 years ago.  For this reason, it is not possible to form any view as to whether his participation in this program has had a positive effect on him.

2. At present, Mr Narrier has significant outstanding treatment needs to address the risk factors that have been identified by each of Dr Pyszora and Ms Hasson and his refusal to participate in rehabilitation programs means these matters are yet to be addressed.

The risk that, if not subject to a continuing detention order or supervision order, Mr Narrier would commit a serious offence and the need to protect the community from that risk - s 7(3)(h) & (i)

1. The State submits that, based on Mr Narrier's criminal history and the expert reports that have been obtained, the risk of Mr Narrier re‑offending is chronic and that he is at high risk of committing a serious offence if not subject to an order under the Act.[50]

   [50] State's submissions [101].

2. Consistent with the opinions of Dr Pyszora and Ms Hasson, I accept there is a high degree of risk that Mr Narrier will commit a serious offence if a restriction order is not made.  The risk of serious offending by Mr Narrier carries with it the risk of serious psychological or physical harm being suffered by the victims, particularly if Mr Narrier uses or carries a weapon in his offending.  I accept that the community needs to be protected from this risk of harm. 

Any other relevant matter – s 7(3)(j)

1. In their submissions, the State referred to two additional matters, namely the importance of suitable accommodation and his current intimate relationship.

2. It is not in doubt that stable accommodation is important in enabling Mr Narrier to live a pro‑social life.  Until Mr Narrier has more permanent accommodation, it is more challenging for him to find employment, pursue hobbies (such as gym membership), and to manage the risk factors which are present for Mr Narrier, including abstaining from illicit drug use.  Further, if Mr Narrier were to become homeless, I accept that his risk of reoffending would increase.[51] 

   [51] ts 72.

3. In the reports of the experts and in their oral evidence, both experts referred to Mr Narrier's relationship with Ms H.  Both Dr Pyszora and Ms Hasson agreed there were both positive and negative aspects of this relationship.  The positive aspects were that as a young man, it was normal for Mr Narrier to want to have an intimate relationship and the relationship meant that Mr Narrier was not isolated or lonely.  However, negative aspects of the relationship include Mr Narrier's struggles to fully engage in his interviews or counselling sessions if Ms H is present in the waiting room, her use of alcohol and the intensity of the relationship.[52] 

   [52] ts 72 (Dr Pyszora); ts 95 – 96 (Ms Hasson).

Is Mr Narrier a high risk serious offender?

1. On the basis of the evidence before me, I am satisfied to a high degree of probability that the respondent is a high risk serious offender and that it is necessary to make a restriction order in respect of Mr Narrier to adequately protect the community. 

2. In reaching this decision, I have had particular regard to the opinions of Dr Pyszora and Ms Hasson, Mr Narrier's outstanding treatment needs, and his history of offending.  While I accept that Mr Narrier has previously committed three serious offences, as that term is defined under the HRSO Act, the scenarios identified by each of the experts are consistent with Mr Narrier's history of offending.  In my view, the likelihood that Mr Narrier will commit further serious offences involving violence against members of the community is such that the community cannot be adequately protected unless a restriction order is imposed.

Which of a continuing detention order or a supervision order should be made?

1. Having decided that Mr Narrier is a high risk serious offender, it is necessary to determine whether he should be detained in custody pursuant to a continuing detention order or be released into the community pursuant to a supervision order.  Before I can make a supervision order, I must be satisfied on the balance of probabilities that Mr Narrier will substantially comply with the standard conditions of a supervision order and that the proposed conditions will provide adequate protection of the community against the risk that he will commit a serious offence.

2. The State submitted that a key factor in determining whether Mr Narrier will substantially comply with the standard conditions of a supervision order is his non‑compliance with the terms of the interim supervision order imposed on 20 July 2021.

3. In this case, for the following reasons, I am satisfied that Mr Narrier will substantially comply with the standard conditions of a supervision order.  First, the HRSO Act requires substantial compliance.  In my view, given Mr Narrier's antecedents and criminal record, Mr Narrier has substantially complied with the terms of the interim supervision order.  While there have been a number of contraventions, these contraventions are for cannabis use (one occasion), traffic offences (four offences), allowing Ms H to stay at his accommodation in contravention of a direction given by his CCO (four occasions), being in the presence of Ms H when she was heavily intoxicated (two occasions) and being in possession of alcohol (one occasion).  The only breaches that are breaches of the standard conditions are the contraventions of the directions given by the CCO.  In my view, these contraventions must be viewed in the context of Mr Narrier's unstable accommodation, which, at present, has been resolved.  Second, since July 2021, Mr Narrier has complied with his reporting obligations, undertaken urinalysis testing as required, and attended each counselling session.  Third, and most importantly, since July 2021, Mr Narrier has not committed any stealing, robbery or violent offence, whether a serious offence as defined in the HRSO Act or otherwise. 

4. In this case, on the evidence before me, I accept that the risk to the community that if Mr Narrier is not subject to a restriction order he will commit offences, including serious offences, can be managed in the community, provided Mr Narrier is subject to conditions and his conduct is monitored.  Since his release on an interim supervision order, Mr Narrier has demonstrated he is able and willing to substantially comply with the conditions of a supervision order.  In particular, I have had regard to the evidence of Dr Pyszora that the interim supervision order has been vital in assisting Mr Narrier not to relapse into serious substance use[53] and that the contraventions that had occurred were opportunities for learning.[54]  On the evidence before the court, I accept that the proposed conditions, subject to the matters set out below, provide adequate protection of the community. 

   [53] ts 76.

   [54] ts 88.

Duration and commencement

1. Both Dr Pyszora and Ms Hasson agreed that the appropriate length of the supervision order was a minimum of five years.[55] 

   [55] ts 73 – 74 (Dr Pyszora); ts 98 (Ms Hasson).

2. Dr Pyszora explained that the length of the supervision order was a balancing exercise.  The duration needed to be the minimum amount of time required for Mr Narrier to achieve imbedded change to address the risk factors that have been identified and to create a new life for himself that is different to the one he has lived since he was 14.  She acknowledged that it was important to not make the supervision order so long that there was no 'light at the end of the tunnel'.[56]  Under cross‑examination, Dr Pyszora's evidence was that with Mr Narrier's history and current position, five years was the minimum time required for Mr Narrier to make sustained changes, although she acknowledged an alternative was to make a shorter order and for the State to make another application towards the end of that order if necessary.[57]

   [56] ts 74.

   [57] ts 91.

3. Ms Hasson explained that in assessing the risks of recidivism, the data focusses on five and ten year intervals.  She explained that the five year interval was important because if an individual was in the community for that length of time with the opportunity to commit an offence but without doing so, this was a good predictor that there had been significant behavioural change and the person was less likely to commit offences in the future.[58]  The second aspect was that change takes time to occur.  In the case of Mr Narrier, much of the current focus was to address the stressors present for him, such as his unstable accommodation.  For this reason, at this time, neither therapy nor change had occurred.  Ms Hasson explained that it requires time and practice to acquire new skills and for those skills to be imbedded.  In her view, this was not going to happen in 18 months' time, particularly when Mr Narrier was coming from 'such a low base' having spent most of his adult life in prison.[59]

   [58] ts 98 – 99.

   [59] ts 99.

4. Counsel for the respondent submitted that there was 'nothing to be lost' by making the length of the supervision order two years.[60]  The basis for this submission was that Mr Narrier had performed well on his interim supervision order which ought to be acknowledged in a way he could appreciate.  Counsel emphasised that the gain in shortening the term was in relation to Mr Narrier's perception of the trust placed in him by the court and the department.

   [60] ts 127.

1. In my view, it is in the interests of the community that the supervision order be of sufficient duration to enable a proper and meaningful response to intervention.  Prior to being released from custody on an interim supervision order, Mr Narrier had not participated to any real extent in the programs that were offered to him.  The only program that he participated in was over 10 years ago.  I accept the evidence of each of the experts that there are a number of matters that Mr Narrier needs to address.  However, given Mr Narrier's good performance under supervision since July 2021, I consider there is a basis to consider these matters may be achieved within the minimum period put forward by the experts.  For these reasons, I consider that a supervision order of five years is appropriate.

2. Section 27(3) of the HRSO Act provides that the date from which a supervision order has effect must not be earlier than 21 days after the date the order is made, unless the court is satisfied that the implementation of the order from an earlier date is practically feasible.  In the present case, given that Mr Narrier is already on an interim supervision order, I am satisfied that it is practically feasible for the supervision order to take effect immediately.

Conditions of order

1. The purpose of the conditions of the supervision order are to reduce the risks that may lead Mr Narrier to reoffend so he can remain in the community[61] and to ensure, as far as practicable, that circumstances which may lead Mr Narrier to reoffend are detected before any reoffending occurs.

   [61] ts 113.

2. At the hearing before me, counsel for the respondent submitted that a number of the conditions should not be imposed as they were not necessary to detect the circumstances which may lead Mr Narrier to reoffend.

Condition 10 – Disclosure to CCO of employment, education, training or volunteer work

1. Counsel for the respondent submitted that this condition could be counterproductive in discouraging Mr Narrier from attempting to undertake any of these activities because of a concern that people would be contacted by COMU and the opportunity could be jeopardised.

2. Dr Pyszora agreed that finding employment and being engaged in pro-social activities would be of great benefit to Mr Narrier.

3. Ms Cashmore explained that the purpose of this condition is not to prevent Mr Narrier from accepting work or even to approve where he was working, it is simply to enable COMU to confirm whether M  Narrier is working and the conditions of any work.  Ms Cashmore gave an example where Mr Narrier might obtain employment involving shift work.  This could impact on his curfew or attending appointments with his CCO or psychologist.  She explained that the purpose of this condition is to enable third party verification of information.[62] 

   [62] ts 113 – 114.

4. In my view, it is appropriate that Mr Narrier advise his CCO if he is employed or commences education, training or volunteer work.  This enables the CCO to make inquiries in relation to whether the opportunity is pro-social, poses any particular risks in relation to Mr Narrier or whether it impacts on any other condition.  For this reason, I consider this condition should be imposed. 

Conditions 23 and 24 – Medications/Mental Health

1. Dr Pyszora, in answer to a question asked by the court, was unclear as to the purpose of these conditions given Mr Narrier had not been diagnosed with any mental health issues but suggested these may be required to address the possibility that Mr Narrier might develop a mental illness in the future requiring treatment.[63]  Both Ms Hasson and Ms Cashmore agreed that Mr Narrier had not previously been diagnosed with any mental illness requiring treatment.

   [63] ts 86 – 87.

2. In my view, these proposed conditions do not relate to any identified risk in relation to Mr Narrier or the circumstances which may lead him to reoffend and are overly broad.  There is no suggestion that mental illness or instability is a primary risk factor in Mr Narrier's reoffending.  I will not impose these conditions.

Condition 31 – Maintenance of a daily diary

1. Dr Pyszora expressed the opinion that there were several benefits in imposing this condition, although she noted that it was important for this condition to be continually assessed to determine whether it was useful.  The benefits included Mr Narrier structuring his time and accounting for what he did each day, as well as recording any new associates or friendships.  Dr Pyszora also explained that this disclosure can be checked against electronic monitoring to ascertain whether Mr Narrier is being consistent and truthful in his reporting.[64]

   [64] ts 84.

2. Dr Pyszora, under cross examination, did not accept that keeping a diary would be particularly stressful for Mr Narrier because he has good reading and writing abilities.[65]

   [65] ts 85.

3. In contrast, Ms Hasson expressed the view that this condition was not necessary.  In relation to Mr Narrier, she considered the main purpose of the diary was to ascertain who Mr Narrier was associating with.  In the past, most of his associates had been family members or extended family members.  For this reason, Ms Hasson did not consider this condition would assist to manage the risks of offending that she had identified.  This was particularly the case given that she did not have any concerns about Mr Narrier's openness and honesty.[66] 

   [66] ts 98.

4. Ms Cashmore explained that the purpose of the condition is to enable Mr Narrier at the end of each day to record his interactions rather than trying to remember them all at his regular meeting with his CCO.  She explained that the imposition of the condition does not mean that Mr Narrier would be required to complete a diary for the entirety of his supervision order.  The question as to when this would be required would be a decision of the risk management team.[67]

   [67] ts 114 – 115.

5. I accept the evidence of Dr Pyszora that there are benefits in imposing this condition, including the requirement to account for his time and record new friendships.  However, in my view, it is important that this requirement be continually assessed to determine whether it continues to be necessary.  I consider this condition should form part of the supervision order.

Condition 32 – Reporting of associations and friendships

1. Counsel for the respondent submitted that this condition could be an impediment to forming relationships as Mr Narrier could be concerned about these people being approached by COMU.

2. Ms Hasson did not consider this was an onerous condition, although she accepted this depended on how it was managed and supervised.  She explained that in monitoring Mr Narrier, it is important for his CCO to understand what is occurring in Mr Narrier's life and whether he is developing friendships or associations.  Ms Hasson stated 'we want disclosures from him so that we can see where he's at.'

3. Ms Cashmore explained that the purpose of this condition is so an assessment can be made of the risk scenarios and risk factors around relationship conflict.  By asking Mr Narrier to self‑report, it enables his CCO to explore with him the nature of the contact he has with individuals, the regularity of the contact and to enable checks to be done by police on these individuals.[68] 

   [68] ts 116.

4. I accept the evidence of Ms Hasson that there are benefits in imposing this condition so that Mr Narrier's CCO can understand what is occurring in his life.  I will impose this condition as part of the supervision order.

Conditions 34 and 35 – Telecommunications devices

1. Counsel for the respondent submitted that these conditions were unnecessary as Mr Narrier had never been involved in drug dealing, associating with outlaw motorcycle gangs and was not a sex offender.  While in these circumstances, counsel accepted it was necessary for peer associations to be strictly monitored, this was not the case for Mr Narrier. 

2. Under cross-examination, Ms Hasson did not see any direct connection between these proposed conditions and Mr Narrier's prior offending or the obvious risk factors associated with Mr Narrier. 

3. Ms Cashmore explained that this condition provided an additional layer of information to verify Mr Narrier's self‑reports.[69] 

   [69] ts 116.

4. In my view, these proposed conditions do not relate to any identified risk in relation to Mr Narrier or the circumstances which may lead him to reoffend and are overly broad.  Given the other conditions I have imposed that provide an additional layer of information to enable verification of Mr Narrier's self‑reports, I do not intend to impose these conditions.

Conclusion

1. For these reasons, I have determined it is necessary to make a restriction order in relation to Mr Narrier to ensure adequate protection of the community against the unacceptable risk he will commit a serious offence.  In my view, the risk of reoffending can be adequately managed in the community by imposing a supervision order for a period of five years on the conditions set out in the annexure to these reasons.

ANNEXURE

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

HW

Associate to the Honourable Justice Hill

16 FEBRUARY 2022