The State of Western Australia v Narrier [No 5]
[2019] WASC 17
•13 FEBRUARY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- NARRIER [No 5] [2019] WASC 17
CORAM: JENKINS J
HEARD: 18 SEPTEMBER & 19 OCTOBER 2018
DELIVERED : 13 FEBRUARY 2019
PUBLISHED : 13 FEBRUARY 2019
FILE NO/S: DSO 13 of 2008
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
PATRICK LENNARD NARRIER
Respondent
Catchwords:
Criminal law - Dangerous sexual offender - Contraventions of community supervision order - Application to rescind, affirm, extend or amend supervision order - Whether respondent bears any onus - Whether amendments made by the Dangerous Sexual Offenders Legislation Amendment Act 2017 (WA) apply to the application
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 23
Interpretation Act 1984 (WA), s 37
Result:
Supervision order rescinded
Continuing detention order made
Category: B
Representation:
Counsel:
| Applicant | : | Mr M T Ritter SC |
| Respondent | : | Ms M R Barone SC |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Ms M R Barone SC |
Case(s) referred to in decision(s):
Director of Public Prosecutions for Western Australia v Narrier [2018] WASCSR 228
Director of Public Prosecutions for Western Australia v Narrier [No 3] [2014] WASC 131
Director of Public Prosecutions for Western Australia v Narrier [No 4] [2017] WASC 306
Director of Public Prosecutions v Hart [2019] WASC 4
Newell v The King [1936] HCA 50; (1936) 55 CLR 707
Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515
The State of Western Australia v A [2018] WASC 250
The State of Western Australia v Bentley [2018] WASC 135
The State of Western Australia v PLN [No 2] [2009] WASC 21
Yrttiaho v The Public Curator of Queensland [1971] HCA 29; (1971) 125 CLR 228
JENKINS J:
Introduction
By application dated 10 May 2018, the DPP[1] in the name of the State of Western Australia (the State) applied for an order under the Dangerous Sexual Offenders Act 2006 (WA) (the Act), s 23, that the respondent's community supervision order (the amended second SO) be rescinded and that he be made the subject of a continuing detention order (CDO) or that the amended second SO ought to be further amended (the contravention proceedings). At the hearing of the contravention proceedings the State submitted that the further amended second SO ought to be rescinded and that a CDO ought to be made.
[1] The Dangerous Sexual Offenders Act 2006 (WA) s 3 defines DPP to mean the holder of the office of Director of Public Prosecutions under the Director of Public Prosecutions Act 1991 (WA). Section 7A provides that the DPP may make applications under the Act in the name of the State.
The respondent submitted that even though he had contravened the amended second SO I should permit it to continue in an amended form.
On 19 October 2018 I announced my decision to rescind the amended second SO and make a CDO. I said that I would make the order and deliver detailed reasons for it at a later date.[2] These are my reasons.
[2] The Act s 27 provides that if a court makes a CDO or SO it must give detailed reasons for making the order at the time the order is made. Thus it was not possible for me to make the CDO before delivering these reasons.
The respondent also pleaded guilty to eight charges against the Act s 40A, which alleged that between 8 ‑ 11 May 2018 he contravened the amended second SO in various ways and one charge against the Act s 19C(3) that on 8 May 2018 he unlawfully interfered with the operation of an electronic monitoring service (the breach offences). On 19 October 2018 I sentenced the respondent to 14 months' imprisonment for the breach offences and backdated the sentence to commence on 10 May 2018. My sentencing remarks[3] for the breach offences should be read in conjunction with these reasons for imposing the CDO.
[3] Director of Public Prosecutions for Western Australia v Narrier [2018] WASCSR 228.
The statutory provisions
The Act s 22(2) provides that the DPP may, in certain circumstances, commence contravention proceedings under the Act s 23. It is not in dispute that the preconditions for commencing the contravention proceedings were satisfied. The Act s 23 relevantly states:
(1)If, on the hearing of an application under section 22, the court is satisfied, on the balance of probabilities, that the person to whom the application relates has contravened or is contravening a condition of a supervision order, the court must -
(a)rescind the supervision order and make a continuing detention order in relation to the person; or
(b)subject to subsection (1B), make an order amending the conditions of the supervision order, or extending the period for which the person is to be subject to the supervision order, or both; or
(c)subject to subsection (1B), make an order affirming the supervision order without amendment or extension.
…
(1B)A court cannot make an order under subsection (1)(b) or (c) … unless it is satisfied, on the balance of probabilities, that the person will substantially comply with the standard conditions or amended standard conditions of the supervision order.
(1C)The onus of proof as to the matter described in subsection (1B) is on the person to whom the application relates.
(2)In deciding which order to make under subsection (1) …, the paramount consideration is to be the need to ensure adequate protection of the community.
Section 23(1B) prevents me from amending or affirming the amended second SO unless I am satisfied that the respondent will substantially comply with its standard conditions or amended standard conditions.[4] A standard condition, in relation to a supervision order (SO), means a condition which under the Act s 18(1) must be included in an SO.[5] Section 18(1) provides that a SO must require the person to whom it applies to:
(a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the person's current name and address; and
(b)report to, and receive visits from, a community corrections officer as directed by the court; and
(c)notify a community corrections officer of every change of the person's name, place of residence, or place of employment at least two days before the change happens; and
(d)be under the supervision of a community corrections officer, which includes, comply with any reasonable direction of the officer (including a direction for the purposes of section 19A or 19B); and
(e)not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and
(f)not commit a sexual offence as defined in the Evidence Act 1906 (WA) section 36A during the period of the order; and
(g)be subject to electronic monitoring under section 19A.
[4] Neither party considered that the matter turned on the distinction between the standard conditions and the amended standard conditions. Consequently, I will from here refer to them as the standard conditions.
[5] The Act s 3.
The State alleged, and the respondent did not dispute, that he contravened the amended second SO by committing the breach offences.
Consequently I had to decide whether to rescind the amended second SO and make a CDO or affirm, extend or amend the SO.
Application of amendments to the Act s 23(1) contravention proceedings
The Act s 23(1) was amended and s 23(1B) and (1C) (the amendments) were inserted in the Act by the Dangerous Sexual Offenders Act 2017 (WA). The amendments came into force on 29 March 2018.[6]
[6] Section 23(1A) was also inserted but I will say no more about it as it does not apply in this case.
The amendments wrought the following relevant changes to the contravention proceedings procedure:
(1)Once the court is satisfied, on the balance of probabilities, that the respondent has contravened or is contravening a SO it 'must' make one of the orders in s 23(1)(a), (b) or (c). Prior to the amendments the Act stated that the court 'may' make one of the orders.
(2)The court cannot make an order to amend, extend and/or affirm a SO unless it is satisfied on the balance of probabilities that the person will substantially comply with the standard conditions or amended standard conditions. Prior to the amendments the discretion was not so qualified.
(3)The onus of proof that the person will substantially comply with the standard conditions of a SO is on the person to whom the application relates. Prior to the amendments the Act did not state who bore the onus but it was accepted that the onus was on the applicant.
(4)There is no requirement for the court to be satisfied that there is an unacceptable risk that if an order is not made under s 23(1) the person would commit a serious sexual offence before it can make a CDO. Prior to the amendments s 23(1)(b) stipulated that the court had to be so satisfied before it could make a CDO.
Relevant timeline relating to the respondent
On 24 October 2017 Tottle J rescinded the respondent's CDO which was then in force and ordered that the respondent be released on a SO from 22 November 2017 (the second SO). The respondent was released on the second SO on 22 November 2017.[7]
[7] ts 798.
On 18 April 2018 Tottle J amended the second SO and the respondent signed the amended second SO on 26 April 2018. The amendments to the second SO made on 18 April 2018 were made pursuant to the Act s 20(1) which provides that the court may amend a supervision in certain circumstances.
A SO 'has effect in accordance with its terms'.[8] The amended second SO says that it has effect 'for a period of seven (7) years from 22 November 2017'. Thus arguably according to its terms it has effect from 22 November 2017, even though the amendments to the second SO which resulted in amended second SO were not made until 18 April 2018.
[8] The Act s 26.
Do the amendments apply to the contravention proceedings?
The respondent submitted that I do not need to decide whether or not the amendments apply to the contravention proceedings because even if they do the respondent had satisfied them by proving, on the balance of probabilities, that he will substantially comply with the standard conditions of a SO. I am not satisfied that is the case. Thus it is necessary for me to determine the law which applies to the contravention proceedings.
If the amended second SO did not come into effect until 18 April 2018, it came into force after the amendments, and therefore any breach of the amended second SO did not occur until after the amendments were in force. Any of the respondent's accrued rights which the respondent had to have any contravention of the amended second SO determined in a particular manner were rights to have it determined according to the Act as amended by the amendments.
However, if the amended second SO came into effect on 22 November 2017 or any time prior to 29 March 2018 the position is more complicated.
The relevant timeline would then be that the amended second SO was in effect prior to the amendments coming into force. However the breaches of the amended second SO (which preceded the contravention proceedings) occurred after the amendments came into force and the contravention proceedings commenced and were carried on after the amendments were in force.
In The State of Western Australia v A[9] Corboy J considered but found it unnecessary to decide whether similar amendments to the Act s 17 which affected an application for a declaration that a person was a dangerous sexual offender (DSO) and the orders that could be made once such a declaration had been made (div 2 orders) operated prospectively or retrospectively. The issue was also referred to but not decided by McGrath J in The State of Western Australia v Bentley.[10]
[9] The State of Western Australia v A [2018] WASC 250.
[10] The State of Western Australia v Bentley [2018] WASC 135.
Corboy J characterised the question in A's case as whether the respondent had a vested right to have the State's application for div 2 orders determined on the basis of the law before the relevant amendments. If he had such a vested right the next issue was whether the amendments to s 17 divested or adversely impacted on that right.[11]
[11] The State of Western Australia v A [53].
Putting that issue into the context of this case, the question is whether the respondent has a vested right to have the contravention proceedings determined on the basis of the law before the amendments and, if so, whether the amendments to s 23 divested or adversely impacted on that right.
The High Court in Rodway v The Queen[12] considered whether the appellant had a vested right to have his trial on sex offences determined according to a provision which was in force at the time he allegedly committed the sex offences. The provision was to the effect that an accused could not be convicted of a sexual offence on the uncorroborated evidence of a complainant. That provision was repealed by amendments which came into force after the appellant was charged but prior to his committal and subsequent trial. The amendments also provided that, if justified, the trial judge could warn the jury that it was unsafe to convict on the uncorroborated evidence of a complainant.
[12] Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515.
The High Court upheld the trial judge's ruling that the amended provisions applied but the repealed provision did not apply to the appellant's trial.
The appellant unsuccessfully argued that the trial judge's ruling was contrary to both the common law and the Tasmanian equivalent of the Interpretation Act 1984 (WA) s 37(1) which states:
(1)Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears -
(a)…
(b)…
(c)affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal;
(d)affect any duty, obligation, liability, or burden of proof imposed, created, or incurred prior to the repeal;
(e)…
(f)affect any investigation, legal proceeding or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty or forfeiture,
and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty or forfeiture may be imposed and enforced as if the repealing written law had not been passed or made.
In respect to the common law the High Court said:
The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance. But the difference between substantive law and procedure is often difficult to draw and statutes which are commonly classified as procedural - statutes of limitation, for example - may operate in such a way as to affect existing rights or obligations. When they operate in that way they are not merely procedural and they fall within the presumption against retrospective operation. But when they deal only with procedure they are apt to be regarded as an exception to the rule and, if their application is related to or based upon past events, they are said to be given a retrospective operation provided that they do not affect existing rights or obligations.[13]
[13] Rodway v The Queen (518 ‑ 519).
Their Honours considered Newell v The King[14] where it was determined that an amendment which removed an accused's right to a unanimous jury verdict did not apply to a trial which began prior to the amendment coming into effect. Their Honours described Newell's case as recognising an accused's 'vested right in a particular procedure, or something very like it'.[15] However their Honours clearly considered this as being an exceptional case and stated:
… ordinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity. A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial. The principle is sometimes succinctly, if somewhat sweepingly, expressed by saying, as did Mellish LJ in the passage cited by Dixon CJ in Maxwell v Murphy, that no one has a vested right in any form of procedure. It is a principle which has been well established for many years: see also Wright v Hale; Attorney‑General v Sillem; Warner v Murdoch (citations removed).[16]
[14] Newell v The King [1936] HCA 50; (1936) 55 CLR 707.
[15] Rodway v The Queen (520).
[16] Rodway v The Queen (521).
Applying the above principles, I conclude that the respondent did not have a vested right to have the contravention proceedings (which commenced on 10 May 2018) determined on the basis of the procedure in the Act s 23 as it was on 29 March 2018 prior to the amendments coming into effect. The amendments do not operate so as to affect existing rights or obligations but merely determine the way in which those rights or obligations are contested in the contravention proceedings.
A person who is on a SO and who is alleged to have contravened a SO does not have a right to have contravention proceedings determined the way the law may have provided when the SO came into effect or even how it was when they allegedly contravened the SO. They merely have a right to have contravention proceedings determined according to the practice and procedure prevailing at the time of the hearing.
In Rodway the High Court also held that the equivalent of the Interpretation Act s 37(1)(c) did not support Mr Rodway's case because Mr Rodway 'had acquired no right to a particular mode of procedure at his trial, at all events before the trial had commenced'.[17] It said that was because the right to a particular mode of trial only when the occasion for the application of that procedure arises.
[17] Rodway v The Queen (523).
In respect of the equivalent of the Interpretation Act s 37(1)(f), the High Court referred to Yrttiaho v The Public Curator of Queensland where Gibbs J (with the majority of the High Court agreeing) held that the then Queensland equivalent:
was restricted in its application to the preservation of the existence of the legal proceeding or remedy of which it speaks and that it did not preserve the procedure to be observed in the litigation.[18]
[18] Rodway v The Queen (523). In Yrttiaho v The Public Curator of Queensland [1971] HCA 29; (1971) 125 CLR 228 '… what is to remain unaffected is the legal proceeding or the remedy itself. A proceeding or remedy is not necessarily affected by an amendment to the procedure to be observed in the litigation' [245].
In Rodway the High Court held that even if it could be said that the appellant accrued a right to trial at some time before the relevant amendments came into force, the amendments did not affect that right and it only affected the manner in which the trial was to be conducted.[19]
[19] Rodway v The Queen (524).
Those comments would apply equally to this case so as to mean that the Interpretation Act s 37(1)(c) and (f) are of no assistance to the respondent.
In Rodway an equivalent of the Interpretation Act s 37(1)(e) was not relied on. Prior to the amendments the Act did not expressly impose a burden of proof on any party in relation to matters in s 23[20] but it could be inferred that the Act imposed an onus of proof on the DPP because it provided that proceedings under the Act are to be taken to be criminal proceedings for all purposes.[21]
[20] Compare the Act s 7(2) which states that the onus in determining an application under the Act which requires a court to determine whether a person is a serious danger to the community is on the DPP.
[21] The Act s 40(1).
Assuming that the Act prior to the amendments imposed a burden of proof on the DPP in contravention proceedings, the Interpretation Act s 37(1)(e) is not of assistance to the respondent. This is because the amendments did not repeal a provision which imposed an onus of proof on the DPP. Rather, the amendments introduced a new requirement on the court that it cannot amend, extend or affirm a SO after a finding that a person had relevantly breached his SO unless it is satisfied, on the balance of probabilities, that the person will substantially comply with the standard conditions or amended standard conditions of the SO (the new requirement).
In relation to the new requirement the legislature imposed an onus of proof on the person found to have contravened a SO. Therefore it cannot be said that the amendments repealed legislation which affected any burden of proof imposed prior to the repeal.
In any event, even if the amendments could be so regarded, the respondent's right to have the contravention proceedings determined according to the onus of proof imposed by the Act prior to the amendments only existed or was vested in him at the date of his contravention, at the very earliest. It is more likely that the right vested at the date the contravention proceedings commenced. It is unnecessary for me to decide which as the amendments were in force at both of these points in the timeline.
At the time the amended second SO came into effect, whether there would be a breach of it, and whether if there would be the basis of contravention proceedings were abstract questions and the rights of the parties in respect of any such proceedings had not crystallised. The respondent's rights at the time the amended second SO came into effect were to have any contravention proceedings determined according to the law at the time of the acts or omissions which formed the basis of the proceedings or at the time the contravention proceedings commenced. As I have said, it is unnecessary for me to determine which as the amendments were in force at both of these points.
Background
The respondent's background and history of offending have been set out in a number of decisions of this court.[22] I will not repeat that material but I incorporate it into these reasons.
[22] For example in The State of Western Australia v PLN[No 2] [2009] WASC 21, Director of Public Prosecutions for Western Australia v Narrier [No 3] [2014] WASC 131 and Director of Public Prosecutions for Western Australia v Narrier [No 4] [2017] WASC 306.
The respondent is a DSO within the meaning of the Act. On 11 February 2009 Murray J made a SO for a period of five years (the first SO).
On 11 April 2014 after hearing earlier contravention proceedings I rescinded the first SO and made a CDO.
On 24 October 2017 after the first annual review of the CDO[23] Tottle J rescinded the CDO and made the second SO. The respondent was released on the second SO on 22 November 2017.
[23] The first annual review was delayed because of the sentence of imprisonment which the respondent had to serve.
On 18 April 2018 his Honour with the consent of the parties made some minor amendments to the second SO. The amended second SO was signed by the respondent on 26 April 2018. Details of the respondent's performance on the amended second SO are given later in these reasons.
The second SO and the amended second SO required the respondent amongst other things to:
(1)be under the supervision of a CCO and to comply with the reasonable directions of the CCO (condition 4);
(2)be subject to electronic monitoring under the Act s 19A (condition 7);
(3)take up residence at [named address] and spend each night at that address or at a different address only if such different address is approved in advance by a CCO (condition 8);
(4)not possess, consume or use any prohibited drugs or substances including but not limited to cannabis (condition 27);
(5)be subject to a curfew pursuant to the Act s 19B such that he was to remain at and not leave his approved address as directed by a CCO from time to time (condition 28);
(6)when subject to a curfew, present himself for inspection at the front door or curtilage of the approved address or speak on the telephone to any CCO, police officer or their agent monitoring his compliance with the curfew (condition 29);
(7)attend for and submit to urinalysis or other testing for alcohol or prohibited drugs as directed by a CCO or a police officer (condition 40); and
(8)provide a valid sample of urine for testing pursuant to condition 40 (condition 41).
The respondent was issued with the following written lawful directions (WLD) by a CCO:
(1)not to attend at the private residence of another person unless such attendance was approved in advance by a CCO, or unless otherwise directed by a CCO (the 30 November 2017 WLD);
(2)not to attend residential properties unless such attendance was approved in advance by a CCO, or unless otherwise directed by a CCO (the 5 February 2018 WLD);
(3)Ms Brockman (the respondent's partner) was permitted to attend the respondent's residence on weekdays between 7.00 am and 7.00 pm but was not permitted at the property during curfew hours and overnight (the 7 March 2018 WLD);
(4)not to leave the [named address] between the hours of 7.00 pm and 7.00 am every day without the permission of a CCO (the 26 April 2018 WLD 1); and
(5)to wear an electronic personal identification device (transmitter) and not to interfere with, render inoperable cause damage to, destroy, remove, deface or alter the operation of the transmitter with any such interference or damage being considered a breach of the SO and constituting a criminal offence which would result in the respondent being returned to custody (the 26 April WLD 2).
The respondent breached the amended second SO on eight occasions which were the subject of the breach offences. Seven of the charges related to breaches of the Act s 40A and one was a charge under the Act s 19C(3). Attached to these reasons are the particulars of each of the breach offences.[24] In summary the breach offences committed by the respondent were:
(1)on 12 January 2018 contravened condition 4 by visiting a house in Mandurah which was used by squatters;
(2)on 15 January 2018 contravened condition 27 by providing a urine sample which was positive for cannabis;
(3)on 18 April 2018 contravened condition 4 and the 7 March 2018 WLD by permitting his partner to stay overnight at his home;
(4)on 8 May 2018 committed an offence against the Act s 19C(3) and contravened the 26 April WLD 2 by removing in some manner the transmitter;
(5)between 7.00 pm on 8 May 2018 and 7.00 am 10 May 2018 contravened conditions 4, 8, 28 and 29 and the 26 April 2018 WLD 1 by failing to observe his curfew;
(6)on 10 May 2018 contravened condition 4 and the 5 February 2018 WLD by being at the home of another without the prior approval or direction of a CCO;
(7)between 4 and 11 May 2018 contravened condition 27 by using amphetamine and methamphetamine; and
(8)between 4 and 11 May 2018 contravened condition 27 by using cannabis.
[24] Attachment 1.
Thus, by 8 May 2018 the respondent was in breach of numerous conditions of the amended second SO. He was arrested on 10 May 2018. He has been in custody since that date.
Evidence on the contravention proceedings
Psychiatric report - Dr Wynn Owen
For the purpose of the contravention proceedings, Dr Wynn Owen assessed the respondent and provided a psychiatric report[25] pursuant to s 23A of the Act. Dr Wynn Owen also gave oral evidence.[26]
Respondent's account of the alleged contraventions
[25] Exhibit 1 dated 25 July 2018.
[26] On 18 September 2018.
The respondent admitted the breach offences to Dr Wynn Owen.
The respondent told Dr Wynn Owen that over the course of the amended second SO he became frustrated at having to seek permission to visit his sister in her private home. He reported feelings of isolation and frustration with his supervision team.
The respondent attributed his use of cannabis to his frustration. The respondent also admitted to using methamphetamine on one occasion and believed that he would return positive to a urinalysis. He felt hopeless about this prospect and decided that he 'might as well' spend time with his partner and sister. He removed his transmitter. The respondent was able to admit that he should have disclosed his increasing frustration to his psychologist and CCO.
Functioning in the community
When describing his time in the community, the respondent said it initially went well but that it was quite stressful and frustrating to have to live away from family and friends and to manage his reporting requirements. He admitted that 'hanging around town' placed him in a high risk situation.
Mental state examination
Dr Wynn Owen stated that the respondent was cooperative at interview and there appeared to be no abnormalities in his mental state.
The respondent said that he noticed a reduction in his libido since commencing the SSRI citalopram and said he was able to manage his sexual frustration through masturbation and visiting a brothel. The respondent denied having thoughts or fantasies about sexual violence at any time.
Risk assessments
Dr Wynn Owen used the Static‑99R (2016 revision) (Static‑99R) as a risk assessment tool. He noted that there were some issues associated with using this tool for indigenous Australian offenders and that it was less reliable in relation to sexual re‑offending as opposed to violent re‑offending. The respondent's Static‑99R score placed him in the 'well above average risk' group for re‑offending.
Dr Wynn Owen undertook a targeted risk factor review. In assessing the respondent's psychological adjustment, he found the respondent's problems with self‑awareness, stress and coping remained present risks. This was also attributed to by the respondent's difficulty in coping with the constraints of his supervision conditions and feelings of isolation. The respondent had been unable[27] to relay his feelings of frustration to his supervision team and appeared to lack self‑awareness in realising the effect his frustration had on him.
[27] Or unwilling.
Further, Dr Wynn Owen found that the respondent's problems with substance abuse remained a present and a significant contributor to his overall re‑offending risk. He reported that the respondent used cannabis and later methamphetamine to manage his stressors in the community.
In relation to social adjustment, Dr Wynn Owen noted that the respondent's problems with intimate relationships remained a risk factor, while non‑intimate relationships did not appear to be a current risk factor.[28] The respondent's enrolment in and attendance at a TAFE course until his arrest appeared to be positive.
[28] Dr Wynn Owen noted that the respondent's relationship with his sister had been positive for him.
Dr Wynn Owen stated that the respondent's problems with planning and complying with supervision requirements remained risk factors. His impulsivity increased with stress and increased markedly when intoxicated.
In Dr Wynn Owen's opinion, the respondent had a consistent pattern of opportunistic offending (in the context of entering a stranger's home for another purpose) - and this remained the most likely re‑offending scenario. This risk increased when the respondent was intoxicated with alcohol and amphetamines. In this context, Dr Wynn Owen concluded that the respondent would continue to present a high risk of future sexual offending if he was not subject to a SO or CDO. Risk management needed to focus on abstinence from substance use, regular and random alcohol and drug testing and adherence to reporting, monitoring and curfew requirements.
Oral evidence
Examination‑in‑chief
When asked about the respondent's problems with substance abuse, Dr Wynn Owen stated that it appeared to be a significant catalyst to the respondent's impulsivity and they brought to the fore his underlying anti‑social tendencies. He stated that the respondent has a limited array of coping strategies for when he is in stressful situations and has difficulty in realising when he is stressed or distressed. Dr Wynn Owen confirmed that the respondent's stressors included his reporting requirements, conditions of his SO and its constraints. In addition, the respondent's enrolment in TAFE, maintaining relationships (both intimately and with friends and family) and feelings of isolation were relevant stressors. Rather than reporting his stress to his supervision team, the respondent had resorted to using substances.
Cross‑examination
Dr Wynn Owen acknowledged that the respondent had not committed a serious sexual offence whilst on the amended second SO and that this was relevant to the imminence of potential re‑offending. In the two day period when he was at his highest risk (after removing the transmitter) no sexual offence occurred nor did Dr Wynn Owen have any sense that the respondent intended to commit a sexual offence. The cause for concern was if the respondent became intoxicated there would have been a risk of his this affecting his judgment and increasing his risk of committing a serious sexual offence.
Dr Wynn Owen stated that whilst being interviewed, the respondent spoke candidly. He did not believe that the respondent was downplaying the situation at the time he breached the amended second SO. He found the respondent's explanation of his feelings of frustration, stress and isolation to be credible.
Dr Wynn Owen believed that during the amended second SO the respondent felt left out or criticised for not attending gatherings at his family member's homes. Dr Wynn Owen believed there to be no therapeutic reason to refuse the respondent's contact with his sister unless he first obtained permission from a CCO.
From a therapeutic perspective, Dr Wynn Owen confirmed also that if the respondent had a successful relationship with his partner it would serve as a protective factor. Overall, it was a positive relationship for a sexual outlet and for friendship.
Dr Wynn Owen noted that the respondent remained compliant with his SSRI medication and that based on a subjective report, it appeared to have had some moderating effect on his libido.
When asked about the psychological report of Ms Ballantyne, Dr Wynn Owen agreed that the respondent's feelings of loneliness, his desire for a romantic relationship and a consistent sexual outlet were salient. Resolving these issues would act as both a protective feature and improve the respondent's emotional, psychological and welfare states.
In Dr Wynn Owen's opinion, the respondent's drug use was reflective of his poor coping strategies. He recommended that the respondent enrol in existing group programmes, have regular ongoing counselling and develop a relationship with a counsellor that can be maintained after his release.
Dr Wynn Owen later stated that there was nothing in his materials or in discussion with the then Department of Corrective Services (DCS)[29] to indicate that it had done anything to involve the respondent in a programme or sourced a treatment provider in relation to drugs and alcohol. This is not correct in relation to the period that the respondent was on the amended second SO. During that time he participated in substance abuse counselling with Cyrenian House. Dr Wynn Owen confirmed that there had been no therapeutic psychological intervention whilst the respondent was in custody awaiting completion of the contravention proceedings.
[29] Now the Department of Justice.
Dr Wynn Owen stated that he was of the opinion that the respondent's risk of serious sexual offending could be managed in the community (if released) but he believed the respondent's risk of breaching a SO remained high. He stated that this high risk could be managed through addressing the respondent's emotional problem‑solving needs and his drug and alcohol use. However, Dr Wynn Owen said that a current issue was the respondent's manageability - namely, his anti‑authoritarian attitude and anti‑social personality.
Addressing the respondent's risk of committing a serious sexual offence, Dr Wynn Owen stated that this would be 'probably slightly lower' than it would have been when the respondent was released in November 2017.
Psychological report - Ms Ballantyne
Ms Ballantyne, a senior counselling psychologist with the DCS, prepared a treatment progress report[30] of the respondent for the contravention proceedings. Ms Ballantyne interviewed the respondent on 18 June 2018.
Treatment progress since 24 October 2017
[30] The report also drew on consultations with Ms Rankin, Assistant Manager Forensic Psychological Service, on 15 June 2018 and Mr Farrall, Senior Community Corrections Officer (SCCO), Community Offender Management Unit, on 28 June 2018; exhibit 1.
Ms Rankin, who was the respondent's psychologist, told Ms Ballantyne that she considered that the respondent had made positive progress in counselling prior to his release on the amended second SO. Counselling prior to the respondent's return to the community necessarily focussed (in the initial stages) on general support for his adjustment to independent living, understanding and complying with SO conditions and establishing relationships with other members of his supervision and support team.
After his release on the amended second SO the respondent attended 16 individual counselling sessions with Ms Rankin between 27 November 2017 and 26 April 2018. Ms Ballantyne stated that although Ms Rankin judged the respondent's engagement with her during the amended second SO to be acceptable, it was difficult for her to ascertain to what extent he may have minimised his report to her of relationship and other stressors.
Ms Rankin informed Ms Ballantyne that later counselling sessions involved discussing the respondent's relationship and his concerns regarding jealousy, lack of trust, excessive expectations of contact and other pressures placed on him by his partner.[31] The respondent had acknowledged to Ms Rankin that he chose to breach the SO conditions regarding overnight visitors to his home because of sexual needs or desires and in the belief that he would not be caught.
Presentation during assessment with Ms Ballantyne
[31] The respondent reported to Ms Rankin that he was experiencing conflict in his relationship after he informed his partner that he had been in telephone contact with a daughter from a previous relationship.
Ms Ballantyne reported that the respondent engaged well with her during the interview and conducted himself appropriately. The respondent raised his primary concern often which was his perception that unreasonable restrictions were placed on him regarding his contact with family members. The respondent described that seeing family members was almost impossible on the amended second SO as he was only able to see them in public places and was not allowed to enter residential addresses without the prior approval of a CCO. Further the respondent said he was unable to speak candidly with certain members of his supervision team regarding stressors he experienced from his partner, in fear that there would be further restrictions on his contact with her. The respondent reported feeling especially susceptible to loneliness when at home and overnight when subject to his curfew.
The respondent acknowledged to Ms Ballantyne that the earlier breaches of the amended second SO were 'stupid mistakes'. The respondent reported feeling stressed and overwhelmed by the pressures placed on him by his partner and feeling conflicted in his desire to continue a telephone relationship with one of his daughters. Despite these problems, the respondent spoke positively about his partner and he wanted them to continue an intimate long‑term relationship.
When discussing the events which led to him removing the GPS tracking device the respondent said he had accepted a quantity of methamphetamine with the intention of selling it to make some money. However, on arriving home, he felt lonely and stressed by his relationship. He decided to use the methamphetamine intravenously. He anticipated a positive reading to a urine test[32] and so when he saw Sex Offender Management Squad (SOMS) police officers approaching him at Perth train station,[33] he removed his GPS tracking device, fled and remained in hiding with his partner's relatives until his arrest.[34] I note that this account is not entirely consistent with known facts in that the police did not see the respondent remove his transmitter.
[32] The sample was provided on 4 May 2018.
[33] On 8 May 2018.
[34] On 10 May 2018.
The respondent spoke positively of his counselling with Ms Rankin and claimed that he was more honest and forthcoming in his disclosures (than with a previous psychologist). The respondent stated that honest engagement with members of his supervision team fluctuated and that he knowingly chose to breach his SO conditions on one occasion because he thought he might 'get away' with it.
Ms Ballantyne's opinion on future intervention issues
Ms Ballantyne reported that the respondent's performance on the amended second SO 'is a clear indication of the chronic and continuing presence of difficulties in his susceptibility to peer pressure (real or imagined) or a desire to 'fit in' and avoid loneliness'. The respondent's loneliness and the desire for a romantic relationship were prominent psychological and physical needs.
In Ms Ballantyne's opinion, the respondent's commitment or ability to remain abstinent from illicit substances would remain an ongoing problem - despite the interventions he had completed and SO conditions imposed. She also noted that the respondent had created conflict amongst his supervision team by asking some members to keep secrets about his behaviour from others. Ms Ballantyne further stated that the respondent appeared to act without consideration of consequences and had the tendency to give up when faced with the possibility of negative sanctions for his actions.
Performance Report (19 July 2018) - Mr Farrall
The Community Corrections Performance Report relating to the respondent was published by three authors.[35] One of the authors, Mr Farrall, a senior CCO (SCCO), provided oral evidence.[36]
Supervision
[35] The performance report was endorsed by Mr Farrall, Ms Cassam and Mr Watkins.
[36] On 18 September 2018.
The authors stated that the respondent attended supervision appointments as directed and participated positively, despite at times appearing guarded when providing information and disclosing conflicts with his partner during the amended second SO. This was because he did not want more restrictive conditions to be imposed.
Training
The authors reported that the respondent commenced engagement in an 8‑week Certificate II Civil Construction course with Carey Training on 23 April 2018, and that his last attendance was on 8 May 2018. Carey Training reported that the respondent attended every day (although he arrived late on some occasions), he was pleasant in class and a good contributor.
Uniting Care West
After experiencing mobile phone difficulties, the respondent's SCCO advised him that Uniting Care West (UCW) had a new phone for him. The respondent made contact with UCW on 4 May 2018 to make an arrangement to collect his new phone on 7 May 2018. The respondent failed to collect it. Numerous attempts were made to contact the respondent on 8 May 2018 on a second phone he reported to have then had in his possession. He later reported that he had lost his second phone after 4 May 2018 and that he did not attend UCW to collect the new mobile phone due to attending Carey Training. He said that his nephew had given him another mobile phone. The respondent did not provide a valid reason for his failure to advise the Community Offender Monitoring Unit (COMU) that he had lost his second phone and for not providing his new contact details as directed.
Urinalysis
Whilst in the community, the respondent returned negative readings to alcohol and illicit substances in 44 out of 46 urinalyses. On 15 January 2018, the respondent provided a positive sample to cannabis which resulted in a charge under the Act s 40A.[37]
[37] The respondent subsequently appeared in the Perth Magistrates Court on 5 February 2018 and received a $1,500 fine (after spending 17 days on remand).
Prior to commencing his course with Carey Training, the respondent was subject to urine testing three times per week.[38] The respondent was last subject to testing on 4 May 2018 which returned a negative result. The respondent later said that he was surprised at the negative result and admitted to using 'speed' (methamphetamine) intravenously several days prior to this urinalysis.
Programmes
[38] This was later reduced to being provided on a random basis due to his training requirements.
During the amended second SO, the respondent engaged in counselling (with Ms Rankin) and participated in substance abuse counselling with Cyrenian House, both pre and post his release from the CDO.
The respondent's first substance abuse counselling session occurred on 30 November 2017 with Ms Spicia. Ms Spicia instructed the respondent to attend counselling fortnightly with the exception of whilst he was in custody or on remand. The respondent's last counselling session occurred on 18 April 2018 and the respondent failed to attend or reschedule his appointment on 2 May 2018.
The authors reported that Ms Spicia considered the respondent to be 'making steady progress during counselling' and that he became more open to discussing relationship issues and concerns about a potential during relapse. He verbalised strategies to assist with any relapse. Ms Spicia informed the authors of the Performance Report that she had concerns about the respondent's inability to implement these strategies. At the time the Performance Report was written the respondent was not working with Cyrenian House and it would only re‑engage with him if he initiated contact and displayed a level of motivation to participate in ongoing counselling.
Contraventions
During the amended second SO, the authors reported that the respondent was issued with two warning letters for non-compliance in relation to the following incidents:
(1)On 22 February 2018, the respondent approached another DSO and had a conversation with him about mutual family members in contravention of condition 39 that stated '[n]ot to associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO'. The respondent was issued with a written warning on 7 March 2018.
(2)On 27 April 2018, the respondent was 11 minutes late home in contravention of his curfew requirement. The respondent made contact with the Electronic Monitoring Officer at 17.46 hours informing that he was lost and would be home late. The respondent was issued with a written warning on 4 May 2018.
As I have outlined in [4] the respondent has been convicted of other breaches of the amended second SO since his release on 22 November 2017.
Prison behaviour
The respondent returned to custody on 10 May 2018. The authors reported that the respondent had since had no social visitors and had sent one letter to his partner.
The respondent had three incident reports recorded:
(1)11 May 2018 ‑ provided a positive urinalysis to methylamphetamine, amphetamine and cannabis; and
(2)19 June 2018 and 1 July 2018 ‑ provided a positive urinalysis to Buprenorphine.[39]
[39] Trade name Subutex. It is used to treat opioid addiction.
In relation to the respondent's use of Buprenorphine, the authors reported that the respondent used it to treat sleeping problems due to being taunted by other prisoners as a result of the media coverage he received when he removed his GPS tracking device, was arrested and returned to custody.
The respondent's urine tested negative for drugs on 7 June 2018 and 11 July 2018.
Accommodation
The authors reported that the respondent's reintegration into the community on the amended second SO was supported by the UCW Dangerous Sexual Offender Supported Accommodation Service. UCW advised the authors that the respondent engaged well with UCW prior to his release on the amended second SO and openly disclosed concerns regarding re‑integration and re‑entry into the community. The authors reported that once released, the respondent's goals and focus appeared to change with the reality of his release and the associated pressures. In relation to this, the UCW staff reported that the 'veracity' of the respondent's statements, particularly in relation to his finances, his relationship with his partner and general time management were questionable at times. UCW provided the respondent with Coles' vouchers, Transperth smart rider credit and food parcels. The respondent has outstanding accommodation arrears of $1,129.12.
The authors reported that if the respondent wished to re‑engage with UCW, he would be encouraged to be more open with all members of his support team, engage in meaningful activities and provide daily structure and re‑focus on his life goals. The respondent indicated his long‑term goal to obtain independent accommodation prior to sharing accommodation with his partner.
Updated Performance Report (14 September 2018) - Mr Farrall
The respondent's updated Performance Report was published by three authors[40] and focussed on the respondent's requests to contact his sisters and his accommodation options.
Contact with his sisters
[40] The Performance Report was endorsed by Mr Farrall, Ms Cassam and Mr Hosie.
The following is a summary of the respondent's requests to his SCCO to contact his sisters and the responses since his release on the amended second SO:
(1)27 November 2017 - the respondent requested the contact details of his sisters. His SCCO informed him he or she would attempt to locate their telephones numbers.
(2)1 December 2017 - the respondent's SCCO provided the respondent with one of his sister's contact details.
(3)11 December 2017 - the respondent advised his SCCO that he had met up with two of his sisters and spent the day with them.
(4)27 December 2017 - the respondent reported he had a quiet Christmas and stated that he briefly met his sister who provided him with a Christmas meal.
(5)16 January 2018 - the respondent requested permission to visit his sister's home and his SCCO indicated he or she would review this request. The respondent was permitted to have contact with his sisters, subject to a written lawful direction.
(6)8 February 2018 - the respondent requested if his SCCO could make contact with one of his sisters to enquire whether he could visit her house. The respondent's SCCO attempted to call his sister but could not make contact.
(7)22 February 2018 - the respondent's SCCO indicated that they had not been able to make contact with the respondent's sister.
(8)19 March 2018 - the respondent enquired whether his sister had made contact with COMU.
(9)3 April 2018 - the respondent's SCCO asked him if he had made contact with his sister and he advised that his contact had been sporadic. The respondent made comment that he felt his sister did not want him to go to her house and stated that he would wait until she contacted his SCCO.
(10)16 April 2018 - the respondent was transferred to another SCCO and contact with his sister was again discussed. The SCCO advised the respondent that COMU were waiting contact from her.
There is no record of the respondent's sisters visiting him since his return to custody on 10 May 2018. The last recorded visit by one of his sisters was on 31 December 2004. The respondent had not sent any mail to his sisters nor had any telephone contact been made since his return to custody.
Accommodation
Under the UCW Dangerous Sexual Offender Supported Accommodation Service the accommodation that the respondent resided in was considered by the authors as 'compromised' due to safety concerns created from media attention at the time the respondent removed his GPS tracking device. It was also noted that there was no accommodation currently available for the respondent. However this was subject to change. The respondent stated that should he be released into the community, he would be willing to re‑engage with UCW.
Oral evidence
Examination‑in‑chief
In reference to the then availability of accommodation, Mr Farrall reaffirmed that the respondent's previous accommodation was unsuitable. One residence had become available in the week prior to him giving evidence. There had not been an assessment of this accommodation. Mr Farrall could not provide a future forecast (when asked about accommodation prospects in six months' time) as he said the situation was 'dynamic' and 'change[d] from week to week'.
Cross‑examination
Mr Farrall said that Mr Snow had been the respondent's CCO for about five or six weeks but he had not met the respondent. Mr Farrall said that if the respondent was released, Mr Snow would engage with him.
Mr Farrall confirmed that he visited the respondent twice to prepare the Performance Report and to discuss what had happened whilst he was on the amended second SO. He said that he did not make any recommendations to the respondent about drug and alcohol counselling but advised the respondent that he would make contact with Cyrenian House.
Mr Farrall confirmed that he did not make contact with residential rehabilitation services in regards to potentially placing the respondent on a wait list or requesting an assessment. Mr Farrall also confirmed that a re‑assessment needed to be made and that he had not currently made any accommodation plans for the respondent. When asked about 'contingency plans' for the respondent's accommodation options, Mr Farrall stated that contact with UCW must first be made before options could be explored in the metropolitan area.
Mr Farrall confirmed that he monitored TOMS[41] daily in respect of the respondent's prison conduct. He stated that there were voluntary prison programmes relating to drug and alcohol misuse but that the respondent would be unable to engage in the programmes under Adult Custodial Rule 18[42] unless he had a greater than 6 month effective sentence of imprisonment.[43] Mr Farrall confirmed that the Adult Custodial Rules could be overridden, but that had not been considered during the respondent's most recent incarceration.
[41] The Total Offender Management System (TOMS) is the electronic offender management system run by the now Department of Justice.
[42] Rule 18 refers to the assessment and sentence management of prisoners.
[43] That is a sentence which has a greater than 6 month non‑parole period still to be served after the date of sentencing (ts 777, 18 September 2018).
Mr Farrall said that if the respondent remained in prison after the contravention proceedings he would be under his (Mr Farrall's) management and he planned to engage with the respondent in preparation for future release. He stated that this would involve substance abuse management, accommodation needs and identifying community supports. Mr Farrall said he anticipated seeing the respondent every three weeks for approximately half an hour to an hour.
Mr Farrall stated that Carey Training would consider re‑engaging with the respondent but it raised concerns over the publicity surrounding the respondent. These concerns were raised within the training group. He reported that Carey Training had a debriefing session about the media reporting on the respondent but that he did not know the result. By the time Mr Farrall gave evidence Mr Narrier had re‑engaged with UCW and a representative visited Mr Narrier regularly.
Past decisions
In 2014 when I rescinded the first SO and made a CDO I said:
the respondent is a person who, without external controls, is at a high risk of committing a serious sexual offence. Despite that finding, in 2009 he was given the chance to live in the community on a supervision order. Despite the existence of the order and a great deal of community support, within 12 months the respondent had breached the order by consuming alcohol which is acknowledged to be a trigger to his sexual and generalised offending. Only a short time later his breaches became more serious and wider ranging. In April 2011 he committed the burglary offence during which he made a threat of sexual violence which he intended to carry out, albeit for a short period of time. Since then he has been in custody but he has not received any sex offender or substance abuse treatment other than the Pathways programme. He has not been rehabilitated. He has no realistic release plans.
Having regard to these matters I find that there is an unacceptable risk that, if an order that the respondent be detained in custody for an indefinite term for control, care, or treatment is not made, he would commit a serious sexual offence. Thus, pursuant to the Act, s 23 I am required to make a CDO.[44]
[44] Director of Public Prosecutions for Western Australia v Narrier [No 3] [88] ‑ [89].
In October 2017 when Tottle J rescinded the CDO and made the second SO his Honour said:
[t]he evidence to which I have referred constitutes acceptable and cogent evidence that satisfies me to a high degree of probability that there is an unacceptable risk that if Mr Narrier were not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence. Accordingly, I find that Mr Narrier remains a serious danger to the community. In summary the matters that lead me to make this finding are as follows:
(i)Mr Narrier's history of serious sexual offending.
(ii)As found by Jenkins J in the course of the 2011 offending Mr Narrier made a threat of sexual violence which he intended to carry out.
(iii)The deficits in Mr Narrier's psychological functioning which can lead him into illicit drug use, generalised offending and opportunistic serious sexual offending.
(iv)Dr Wojnarowska's opinion that Mr Narrier continues to be at high risk of sexual reoffending and the matters upon which that opinion is based.[45]
[45] Director of Public Prosecutions for Western Australia v Narrier [No 4] [79].
His Honour then considered whether the community would be adequately protected by a SO. His Honour said:
I consider that a supervision order incorporating the draft conditions proposed by the Community Offender Monitoring Unit will adequately protect the public. The following factors, in combination, lead me to that conclusion.
First, the supervision order that I propose to make will provide for the close supervision and monitoring of Mr Narrier. There will be continuous monitoring of his whereabouts by a global positioning tracking system (a monitoring technique not available under the Act in 2009). He will be subject to a curfew. His home will be subject to random searches by police officers who will also be able to monitor Mr Narrier's use of any telephone or internet connection used by him. It will be a condition of the order that there be complete abstinence from drugs and alcohol and that he be subject to a regime of random testing for drug and alcohol use. Other conditions of the order will be that Mr Narrier comply with the treatment recommendations of his psychiatrist and take the anti-libidinal medications prescribed for him and that he be subjected to testing to ensure compliance. The conditions of the order are set out in the appendix to these reasons. Strict compliance with the orders is required and the latitude seemingly extended to Mr Narrier in 2010 - 2011 in respect of his breaches of the 2009 supervision order should not be extended to him in respect of any breaches of the order I propose to make.
Second, whilst Mr Narrier's breaches of the 2009 supervision order are a cause for concern about whether he will comply with the terms of a further supervision order, his breaches of the 2009 order must be weighed against the significant progress made by Mr Narrier in his rehabilitation. This is reflected in the evidence in by:
(i)the positive observations of the facilitators of the SOTP in their Program Completion Report reproduced at [38];
(ii)the genuine therapeutic alliance formed with Ms Rankin and the benefits derived from that the psychological counselling;
(iii)his engagement with the Drug and Alcohol Through-Care Services; and
(iv)Dr Wojnarowska's evidence that Mr Narrier is more open in the presentation of information.
The progress made by Mr Narrier in his rehabilitation is relevant is two ways. It provides a foundation for further rehabilitation in the community and it increases the likelihood that Mr Narrier will comply with the terms of the supervision order thereby avoiding the kinds of factors that led to his life being destabilised in the past.
Third, Mr Narrier has not been violent in prison and, apart from one episode of insulting behaviour in October 2015, it appears that he has behaved in a respectful manner to prison officers and other persons with whom he has come into contact. The impression that I have formed is that Mr Narrier is more respectful of authority and that his previous defiant attitude has moderated. In her report Dr Wojnarowska referred to the significant improvement in Mr Narrier's behaviour in recent years. This improvement in Mr Narrier's attitude is a basis for confidence that he will comply with a supervision order.
Fourth, Mr Narrier has now been trialled on anti-libidinal medication. It appears that Mr Narrier is able to tolerate the medication with no side effects and that when the maximum daily dosage is administered it will have the effect of suppressing his libido thus reducing the risk of sexual offending. As I have already noted the supervision order will contain conditions that Mr Narrier comply with the treatment and medication regimes prescribed for him and his compliance with the medication regime be tested.
Fifth, Mr Narrier's release plan is not detailed but it is realistic. In my view, it is unrealistic to expect a person in Mr Narrier's position to be able to prepare a more detailed plan. Indeed a more detailed plan has the potential to set Mr Narrier up for failure and to undermine his psychological health. Mr Narrier's plan provides a strategy for him to re-engage with the community by obtaining employment, re‑establishing contact with his family and establishing a social life which does not bring him into contact with pro criminal influences. There is no doubt that Mr Narrier will require support to assist him re-adjusting to life in the community and the Community Supervision Plan identifies the support that will be available to him: ongoing psychological counselling; maintaining an ongoing relationship with UCW to assist Mr Narrier with general reintegration (assistance with attendance at appointments, assistance in implementing Mr Narrier's release plan, leisure activities and encouragement to positive lifestyle changes); and, ongoing substance abuse counselling.
Sixth the risk factor that gives rise to the greatest concern is the risk that Mr Narrier will resort to cannabis use to cope with the stresses of life in the community. His relapse earlier this year weighs against the rescinding of the continuing detention order. It suggests that Mr Narrier will be unable to cope with the stresses of living in the community and complying with the supervision order without resorting to cannabis use which has the potential to result in offending. The counselling to which I have referred will attenuate that risk but cannot eliminate it. It will be a condition of the supervision order that Mr Narrier be subject to a strict regime of random testing for alcohol and drug use. As already stressed it is imperative that this regime be enforced and that Mr Narrier be monitored closely for alcohol and drug use. My view is that the combination of counselling and close monitoring for alcohol and drug use provides adequate protection against the risk that Mr Narrier will resort to cannabis use.
Seventh, Mr Narrier is older. He has been detained under the continuing detention order for a year. He has had the opportunity to reflect on how he must behave in the community in the event that a supervision order is made. The prospect of a further period of detention pursuant to the Act if he breaches the supervision order will act as a significant personal deterrent.[46]
[46] Director of Public Prosecutions for Western Australia v Narrier [No 4] [82] ‑ [90].
Discussion and findings
The respondent has admitted to contravening the amended second SO by committing the breach offences.
I cannot release the respondent on any form of a SO unless I am satisfied, on the balance of probabilities, that he will substantially comply with the standard conditions of the SO.
The respondent submitted that I should be so satisfied because he had complied with the majority of the standard conditions for most of the period of the amended second SO. I do not accept this submission. What amounts to substantial compliance is not just a measure of the number of conditions which are complied with or of the length of time over which the conditions of a SO are complied with. It involves a judgment as to whether a person will comply with the standard conditions in a manner and to an extent that will result in the SO adequately protecting the community from the respondent's risk of committing a serious sexual offence.
In Director of Public Prosecutions v Hart[47] Fiannaca J said:
In determining whether the respondent will substantially comply with the standard conditions or amended standard conditions, the respondent's prior history of compliance and non‑compliance will be relevant and important. However, self‑evidently from the statutory scheme, the fact that the respondent is being dealt with for contraventions of conditions of the supervision order, including standard conditions, is not determinative of the issue under s 23(1B), and will not necessarily result in the making of a continuing detention order. The court must have regard to any other evidence, including evidence of developments in the respondent's circumstances since the contraventions occurred, which may inform the question of future compliance.
As to what is meant by 'will substantially comply', the Act provides no definition or guidance.
[47] Director of Public Prosecutions v Hart [2019] WASC 4 [21] ‑ [22].
His Honour then considered a number of cases which had applied the relevant provisions of the Act as well as a number of cases which considered the meaning of phrases similar to 'will substantially comply with' albeit in different statutory contexts. His Honour concluded:
In summary … I consider that the appropriate approach to what is required under s 23(1B) is as follows:
(1)The words 'will substantially comply with' should be given their ordinary meaning, consistent with the purposes of the legislation and of the general conditions of a supervision order, the overall object of which is to achieve the adequate protection of the community by appropriate management and mitigation of the unacceptable risk that the respondent will commit a serious sexual offence.
(2)The question of what will be substantial compliance will be a matter of judgment that will depend on the circumstances of each particular case.
(3)The assessment is to be made in the context that it is one aspect of the broader exercise of determining whether the community can be adequately protected if the respondent is released again subject to a supervision order.
(4)It is consistent with the ordinary meaning of the language of the section, in context, that the word 'substantially' is used in a relative sense and involves an assessment of the degree of compliance that the respondent is likely to achieve.
(5)While the prospect of trivial or minor contraventions will not (and ordinarily should not) preclude a finding that the respondent will substantially comply with the standard conditions of a supervision order, the assessment of whether the respondent will substantially comply involves considerations other than simply whether any potential breach will be trivial or minor.
(6)The court must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with and will enable the attainment of the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious sexual offence.
(7)Factors that are relevant to that assessment would include the respondent's history of compliance and non-compliance and the factors set out at [50] above.[48]
[48] Director of Public Prosecutions v Hart [52].
The factors which his Honour had identified at [50] of his decision in summary were:
(1)the respondent's attitude to the conditions of the supervision order (in particular whether he is likely to deliberately flout the conditions);
(2)his capacity to comply with the conditions;
(3)what measures would be in place to ensure he would substantially comply;
(4)the relative importance of any breach that might occur, in terms of the impact it would have on the practical effect of the supervision order in achieving the objects of the Act (being to ensure the adequate protection of the community); and
(5)where engagement in counselling is to be a condition of the supervision order, the respondent's willingness to engage in a meaningful way, rather than just attend the counselling session.
I am grateful to his Honour for his analysis of the Act s 23(1B) and I agree with it.
If a person has committed one serious breach of the SO late in its duration, that breach may still mean that the court cannot be satisfied that the person will substantially comply with the standard conditions of a SO. On the other hand, repeated minor breaches of a number of the standard conditions may also mean that a court is not satisfied that a person will substantially comply with a SO.
I am not satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of a SO because:
(1)the respondent remains at a high risk of serious sexual offending;
(2)the respondent presents a high risk of generalised offending, most particularly drug offences and such offences increase his risk of committing serious sexual offences;
(3)the respondent has a history of breaching the first SO and the amended second SO;
(4)the respondent's conduct in removing his transmitter and remaining in hiding from the supervising authorities and police in May 2018, after he had consumed illicit drugs, is a serious breach of the amended second SO;
(5)the measures which are in place to ensure that a DSO complies with a SO and the public are protected are rendered ineffective if the DSO is prepared, as the respondent was, to remove his transmitter and hide from the authorities;
(6)the use of illicit drugs increased the respondent's risk of committing serious sexual offences and breaching other conditions of a SO;
(7)whilst on the amended second SO, the respondent was not prepared to be entirely honest with members of his supervising team about his frustrations and personal problems; and
(8)the respondent was not prepared to comply with the conditions of his amended second SO where he thought it imposed unreasonable restrictions on his conduct.
Tottle J made it clear in 2017 that 'strict compliance' with the amended second SO was required and that the latitude which had seemingly been extended to the respondent in earlier years should not be extended to him in respect of any breaches of the amended second SO. The justification for those comments are obvious. Without strict restrictions on the respondent's behaviour in the community, the respondent poses an unacceptable risk of committing a serious sexual offence. Not only are those conditions justified but unless they are strictly enforced and the respondent is prepared to comply with them the community cannot be adequately protected.
The breach offences are telling evidence that the respondent cannot be trusted to comply with the standard conditions of a SO. If he does not comply with the standard conditions of a SO the community cannot be adequately protected from the risk which he poses of committing a serious sexual offence.
Taking into account the paramount consideration of ensuring adequate protection of the community, I am satisfied that the only appropriate order is to rescind the amended second SO and make a CDO in relation to the respondent.
Attachment 1
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
Associate to the Honourable Justice Jenkins
13 FEBRUARY 2019
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