The State of Western Australia v Narrier [No 6]
[2020] WASC 349
•2 OCTOBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- NARRIER [No 6] [2020] WASC 349
CORAM: DERRICK J
HEARD: 22 SEPTEMBER 2020
DELIVERED : 2 OCTOBER 2020
FILE NO/S: DSO 13 of 2008
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
PATRICK LENNARD NARRIER
Respondent
Catchwords:
Dangerous sexual offender - High risk serious offender - First review - Whether respondent remains a high risk serious offender - Whether continuing detention order should be affirmed or rescinded - Whether community would be adequately protected if respondent released on a supervision order
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
High Risk Serious Offenders Act 2020 (WA)
Result:
Continuing detention order affirmed
Category: B
Representation:
Counsel:
| Applicant | : | Mr B D Meertens |
| Respondent | : | Mr A G Elliott |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Mr A G Elliott |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212
Director of Public Prosecutions (WA) v Decke [2009] WASC 312
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 Narrier [2018] WASCSR 228
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
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
GBT v The State of Western Australia [2019] WASCA 40
Italiano v The State of Western Australia [2009] WASCA 116
The State of Western Australia v Corbett [No 5] [2017] WASC 115
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Narkle [2019] WASC 404
The State of Western Australia v Narrier [No 5] [2019] WASC 17
The State of Western Australia v Newland [2018] WASC 344
The State of Western Australia v Paul Douglas Allen also known as Paul Alan Francis Deverell [No 5] [2019] WASC 359
The State of Western Australia v PLN [No 2] [2009] WASC 21
The State of Western Australia v West [No 6] [2019] WASC 427
The State of Western Australia v ZSJ [2020] WASC 330
DERRICK J:
Introduction
On 31 March 2020 the applicant applied for the respondent's continuing detention order to be reviewed as soon as practicable after 9 July 2020 pursuant to s 29 and s 31 of the Dangerous Sexual Offenders Act 2006 (WA) (the DSO Act) (the application).
The hearing of the application (the review hearing) took place before me on 22 September 2020.
For the reasons set out below I have decided that the respondent's continuing detention order must be affirmed.
The enactment of the High Risk Serious Offenders Act 2020 (WA)
On 9 July 2020 pt 1 of the High Risk Serious Offenders Act 2020 (WA) (the Act) came into operation.[1] Other parts of the Act relevant to the application came into operation on 26 August 2020 (the commencement day).[2] Upon the coming into operation of these other parts of the Act the DSO Act was repealed.[3] However, by virtue of s 124(1) of the Act, as the application had not been finally determined by the commencement day, the application continues and may be determined under the Act, and is taken to have been made under the provisions of the Act that correspond with s 29 and s 31 of the DSO Act. In addition, by virtue of s 124(2) of the Act the application may be continued by the Director of Public Prosecutions for Western Australia in the name of the applicant. Further, under s 125 of the Act, if an order made, or direction given, under the DSO Act is in effect on the commencement day, the order or direction continues in effect and is taken to have been made or given under the corresponding provision of the Act. The net result of these provisions of the Act is that:
1.the respondent’s continuing detention order continues in effect and is taken to have been made under the Act; and
2.the application must now be treated as having been made pursuant to s 64 and s 66 of the Act and be determined under the provisions of the Act.
[1] Act, s 2(1)(a).
[2] The term 'commencement day' is defined for the purposes of the provisions contained in pt 10 of the Act (s 122 ‑ s 125) to mean 'the day on which this section comes into operation'. The 'day on which this section comes into operation' is, by virtue of proclamation, 26 August 2020: Act, s 2(1)(c).
[3] Act, s 123.
I will say more about the relevant provisions of the Act in due course. At this point it suffices to say that so far as the application is concerned the Act does not operate in any significantly different way to the DSO Act.
Background to the application - the proceedings under the DSO Act
On 11 February 2009 Murray J found that the respondent was a serious danger to the community within the meaning of s 7(1) of the DSO Act and placed him on a supervision order for a period of five years pursuant to s 17(1)(b) of the DSO Act (the first supervision order).[4]
[4] The State of Western Australia v PLN [No 2] [2009] WASC 21.
During the period February 2010 through to April 2011 the respondent contravened the first supervision order on a significant number of occasions. The contraventions included possessing and using prohibited drugs (cannabis, amphetamine and methylamphetamine), failing to report to his Community Corrections Officer (CCO) because he did not return to Albany from an approved visit to Geraldton, failing to attend for urinalysis testing, failing to attend a supervision session and failing to attend counselling as directed.[5]
[5] Director of Public Prosecutions for Western Australia v Narrier [No 3] [2014] WASC 131 [21] ‑ [26]; Director of Public Prosecutions for Western Australia v Narrier [No 4] [2017] WASC 306 [12] ‑ [20].
In addition, on 21 April 2011 the respondent contravened the first supervision order by committing an offence of home burglary and an offence of stealing a motor vehicle. The facts of the offences were as follows.[6]
[6] Director of Public Prosecutions for Western Australia v Narrier [No 3] [32]; Director of Public Prosecutions for Western Australia v Narrier [No 4] [21].
The respondent, in company with a juvenile co‑offender, broke into a family home. The male complainant was pushed out of the house and punched by the co‑offender. Meanwhile the respondent confronted the female complainant and demanded money. The respondent grabbed the female complainant by the arm and, in the presence of her children who were crying, threatened to force her to perform a sexual act on him if she did not give him money. No sexual act took place. The respondent and the co‑offender then left the house by driving away in a motor vehicle that was in the carport.
The respondent was sentenced to a total of 5 years' imprisonment for the burglary and steal motor vehicle offences. The commencement date of the sentence was backdated to 6 May 2011.[7]
[7] Director of Public Prosecutions for Western Australia v Narrier [No 3] [30]; Director of Public Prosecutions for Western Australia v Narrier [No 4] [21].
In 2013 the applicant commenced contravention proceedings under the DSO Act (the first contravention application) against the respondent for the above referred to contraventions of the first supervision order. By the first contravention application the applicant applied for a continuing detention order to be made in relation to the respondent.
On 11 April 2014 Jenkins J, after hearing the first contravention application, rescinded the first supervision order and made a continuing detention order in relation to the respondent pursuant to s 23(1)(b) of the DSO Act.[8] In arriving at this conclusion Jenkins J said the following:[9]
Even taking these matters into account, 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 DSO Act], s 23 I am required to make a [continuing detention order].
[8] Director of Public Prosecutions for Western Australia v Narrier [No 3].
[9] Director of Public Prosecutions for Western Australia v Narrier [No 3] [88] ‑ [89].
As a consequence of the continuing detention order made by Jenkins J the respondent, at the completion of the 5‑year sentence imposed on him for the burglary and steal motor vehicle offences, remained in detention.
In May and August 2017 Tottle J conducted the first annual review of the continuing detention order made by Jenkins J. The review was conducted pursuant to s 29 and s 31 of the DSO Act.
On 24 October 2017 Tottle J, having conducted the review, rescinded the continuing detention order and placed the respondent on a supervision order for a period of seven years (the second supervision order) pursuant to s 33(1)(b)(ii) of the DSO Act.[10] Tottle J expressed his reasons for arriving at his conclusion as follows:[11]
[10] Director of Public Prosecutions for Western Australia v Narrier [No 4].
[11] Director of Public Prosecutions for Western Australia v Narrier [No 4] [82] ‑ [90].
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 by:
(i)the positive observations of the facilitators of the [Sex Offender Treatment Program] in their Program Completion Report…;
(ii)the genuine therapeutic alliance formed with Ms Rankin and the benefits derived from that the [sic] 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 [sic] 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 DSO Act] if he breaches the supervision order will act as a significant personal deterrent.
The respondent was released on the second supervision order on 22 November 2017.[12]
[12] The State of Western Australia v Narrier [No 5] [2019] WASC 17 [11].
On 18 April 2018 Tottle J, with the consent of the parties, made some minor amendments to the second supervision order (amended second supervision order).[13] The amended second supervision order, although it was signed by the respondent on 26 April 2018,[14] was expressed to have effect 'for a period of seven years from 22 November 2017'.[15]
[13] The State of Western Australia v Narrier [No 5] [41].
[14] The State of Western Australia v Narrier [No 5] [41].
[15] The State of Western Australia v Narrier [No 5] [41]. The amended supervision order had 'effect in accordance with its terms': DSO Act, s 26.
During the period January 2018 to May 2018 the respondent contravened the amended second supervision order on eight occasions.[16] Seven of the contraventions were made the subject of charges under s 40A(1) of the DSO Act and were comprised of the respondent visiting a house which was used by squatters, providing a urine sample that tested positive for cannabis, permitting his partner to stay overnight at his house, failing to observe his curfew, being at the home of another without the prior approval of his CCO, and using amphetamine, methylamphetamine and cannabis.[17] The eighth contravention which was comprised of the respondent removing his electronic personal identification device (transmitter) was made the subject of the charge under s 19C(3) of the DSO Act.[18]
[16] The State of Western Australia v Narrier [No 5] [44].
[17] The State of Western Australia v Narrier [No 5] [44].
[18] The State of Western Australia v Narrier [No 5] [44].
On 10 May 2018 the respondent was arrested and taken into custody.[19]
[19] The State of Western Australia v Narrier [No 5] [45].
Also on 10 May 2018 the applicant applied for an order under s 23(1)(a) of the DSO Act that the amended second supervision order be rescinded and that the respondent be made the subject of a continuing detention order (the second contravention application).
The hearing of the second contravention application took place before Jenkins J on 18 September 2018 and 19 October 2018. At the end of the hearing Jenkins J rescinded the amended second supervision order and made a continuing detention order in relation to the respondent pursuant to s 23(1)(a) of the DSO Act.[20] Jenkins J published her written reasons for decision on 13 February 2019. In her written reasons her Honour said the following:[21]
[20] The State of Western Australia v Narrier [No 5] [3].
[21] The State of Western Australia v Narrier [No 5] [118] ‑ [122].
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.
On 19 October 2018 Jenkins J sentenced the respondent for four of his offences against s 40A(1) of the DSO Act and his offence against s 19C(3) of the DSO Act to a total term of 14 months imprisonment, the respondent having pleaded guilty to the offences.[22] Her Honour backdated the commencement date of the sentence to 10 May 2018.[23] Her Honour also made the respondent eligible for parole.[24]
[22]The State of Western Australia v Narrier [No 5] [4]; Director of Public Prosecutions (WA) v Narrier [2018] WASCSR 228. The five contravention offences for which Jenkins J sentenced the respondent (failing to observe his curfew, being at the home of another without prior approval, using amphetamine and methylamphetamine, using cannabis, and removing his transmitter) were the offences committed by him in May 2018. The remaining three contravention offences referred to in [18] above (visiting a house used by squatters, providing a urine sample that tested positive for cannabis, permitting his partner to stay overnight at his house) were committed by the respondent in January 2018 and April 2018. The respondent pleaded guilty to these three offences also and was sentenced for them by the Magistrates Court by way of the imposition of fines.
[23]The State of Western Australia v Narrier [No 5] [4]; Director of Public Prosecutions (WA) v Narrier [35].
[24]The State of Western Australia v Narrier [No 5] [4]; Director of Public Prosecutions (WA) v Narrier [35].
Evidence on the application
At the review hearing the applicant tendered, without objection, a Book of Materials dated 14 September 2020.[25] The Book of Materials contained historical information and past reports relating to the respondent as well as the following reports prepared specifically for the purpose of the application:
1.An annual review report prepared by Dr Gosia Wojnarowska, consultant psychiatrist, dated 10 September 2020;
2.A Department of Justice (Department) Dangerous Sexual Offender Treatment Progress Report prepared by Dr Dylan Galloghly, Senior Clinical and Forensic Psychologist with the Department's Forensic Psychological Service (FPS), dated 31 August 2020; and
3.A Community Supervision Assessment Report prepared by Ms Emma Cashmore, Senior Community Corrections Officer (CCO) with the Department's Community Offender Monitoring Unit (COMU), dated 10 September 2020.[26]
[25] Exhibit 1.
[26] Dr Wojnarowska and Dr Galloghly are 'qualified experts' as defined in s 3 of the Act. Their reports were prepared and obtained pursuant to s 67 of the Act and in accordance with s 74 of the Act.
At the review hearing the applicant also tendered without objection:
1.The respondent's Substance Use Test Results for the period 10 May 2018 to 16 September 2020 (the Substance Use Test Results);[27]
2.Prison Incident Description Reports and associated documentation for the dates 19 June 2018, 1 July 2018, 30 July 2018 and 15 December 2018 (the Prison Incident Description Reports);[28] and
3.Community Business Information System notes (the CBI notes) prepared by Ms Cashmore following her attendance on the respondent at Casuarina Prison on 1 September 2020.[29]
[27] Exhibit 2.
[28] Exhibit 3.
[29] Exhibit 4.
At the review hearing Dr Wojnarowska, Dr Galloghly and Ms Cashmore were called by the applicant to give supplementary oral evidence.
The respondent did not adduce any evidence at the review hearing.
Dr Wojnarowska was responsible for assessing the respondent for the purposes of, and provided evidence on, the original proceedings under the DSO Act in 2008, the first contravention application and the review hearing in 2017.
Relevant statutory provisions and applicable legal principles
I turn now to dealing in more detail with the provisions of the Act by reference to which the application must be determined as well as with the legal principles that are applicable to the determination of the application.
In relation to the applicable legal principles, in The State of Western Australia v ZSJ,[30] a case in which the State made an application under div 2 of the DSO Act but which, given the repeal of the DSO Act, fell to be decided under the provisions of the Act, Fiannaca J made the following observations (citations omitted):
As will emerge from the outline below of the statutory framework under the DSO Act and [the Act], the concepts and criteria with which the court is concerned in determining an application of this kind are substantially the same under both statutes. Although I have reached that view on the basis of the ordinary meaning of the provisions of both statutes, having regard to the context of the provisions within the statutes and the objects underlying the statutes, the construction is confirmed, in my opinion, by the second reading speech made to the Legislative Assembly in respect of the High Risk Offenders Bill 2019 by the Honourable Attorney General. The Attorney informed the House that the bill was intended to 'extend the Supreme Court's ability to make a continuing detention order or supervision order to serious violent offenders in the same manner as the provisions contained in the [DSO Act]'. He went on to say:
'In doing so, this bill fully preserves the provisions that apply in respect of dangerous sexual offenders in the [DSO Act].'
Whether or not that has been achieved remains to be seen upon analysis of the provisions. However, in my opinion, as the concepts and criteria in both statutes are substantially the same, the jurisprudence established in respect of the DSO Act remains relevant in construing and applying [the Act], with appropriate adaptation in cases involving non-sexual offences.
[30] The State of Western Australia v ZSJ [2020] WASC 330 [30] ‑ [31].
I respectfully agree with Fiannaca J's observations. In my opinion the case law decided under the DSO Act in relation to applications for review of continuing detention orders and supervision orders remains relevant to the determination of such applications under the provisions of the Act. Accordingly, the cases to which I will refer in dealing with the legal principles applicable to the determination of the application under the Act will be cases that have been concerned with proceedings under the DSO Act.
Section 63 of the Act provides:
The purpose of this Part is to ensure that an offender's detention under a continuing detention order is regularly reviewed.[31]
[31] The respondent is an 'offender' for the purposes of the relevant provisions of the Act: Act, definition of 'offender' and 'serious offender under restriction' in s 3.
Section 64 of the Act provides:[32]
[32] The relevant date for the purposes of s 64(2)(a) is 9 July 2020, the continuing detention order having commenced on 9 July 2019 upon the expiration of the 14 month sentence imposed by Jenkins J on the respondent for the five contravention offences.
Review - periodic
(1)While an offender is subject to a continuing detention order, the State may apply to the Supreme Court for the offender's detention under the order to be reviewed.
(2)The State must apply under subsection (1) so as to ensure that reviews are carried out -
(a)as soon as practicable after the end of the period of 1 year commencing when the offender is first in custody on a day on which the offender would not have been in custody had the continuing detention order not been made; and
(b)as soon as practicable after the end of the period of 2 years commencing when the detention was most recently reviewed under this section or section 65.
(3)The periods mentioned in subsection (2)(a) and (b) are extended by any period during which the offender is in custody serving a sentence of imprisonment.
Section 66 of the Act provides:[33]
Dealing with application
(1)As soon as practicable after an application is made under section 64 or 65, the court must give directions for the hearing of the application.
(2)Subject to subsection (3), the application must be heard, and the review must be carried out, as soon as it is practicable to do so in accordance with any directions given by the court.
(3)The court may adjourn the hearing of the application, and the carrying out of the review, where good cause is shown.
[33] On 17 September 2020 the court, as required by s 66(1), gave directions for the hearing of the application.
Section 68 of the Act provides:
Review of detention under continuing detention order
(1)On a review under section 66 of an offender’s detention -
(a)if the court does not find that the offender remains a high risk serious offender it must rescind the continuing detention order; or
(b)if the court finds that the offender remains a high risk serious offender it must -
(i)affirm the continuing detention order; or
(ii)subject to section 29, rescind the continuing detention order and make a supervision order.
(2)In deciding whether to make an order under subsection (1)(b)(i) or (ii), the paramount consideration is to be the need to ensure the adequate protection of the community.
The definition of the term 'high risk serious offender' is contained in s 7(1) of the Act. Section 7(1) is in the following terms:
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.
The term 'restriction order' is defined in s 3 of the Act to mean 'a continuing detention order' or 'a supervision order'. The terms 'continuing detention order' and 'supervision order' are defined in s 26 and s 27 respectively in similar terms to those that were used in the DSO Act.[34] Thus s 26 provides:
(1)In this Act a continuing detention order in relation to an offender is an order that the offender be detained in custody for an indefinite term for control, care, or treatment.
(2)A continuing detention order has effect in accordance with its terms from the time the order is made until rescinded by a further order of the court.
[34] Act, s 3.
Section 27 provides:
(1)In this Act a supervision order in relation to an offender is an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate, in accordance with section 30.
(2)A supervision order has effect in accordance with its terms -
(a)from a date stated in the order; and
(b)for a period stated in the order.
(3)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.
As to the term 'serious offence' used in s 7(1), s 3 and s 5(1) of the Act provide that a 'serious offence' is an offence that 'is specified in Schedule 1 Division 1 of the Act', or 'is specified in Schedule 1 Division 2 and is committed in the circumstances indicated in relation to that offence in that Division'. Offences that were 'serious sexual offences' under the DSO Act come within the definition of a 'serious offence' under the Act because they are offences that are specified in sch 1 div 1 of the Act.
It follows from the definition of 'high risk serious offender' contained in s 7(1) that a finding under s 68(1)(b) that an offender 'remains a high risk serious offender', that is, a finding that it remains 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, necessarily entails a finding that if the offender is not subject to a restriction order the community will not be adequately protected against an unacceptable risk that the offender will commit a serious offence.[35]
[35] The State of Western Australia v West [No 6] [2019] WASC 427 [21]; The State of Western Australia v ZSJ [44].
By reason of the definition of 'high risk serious offender' contained in s 7(1), before the court can find under s 68(1)(b) that the offender remains a high risk serious offender, it must be satisfied of the matters referred to in s 7(1) 'by acceptable and cogent evidence and to a high degree of probability'. The 'high degree of probability' standard is a higher standard than the standard of the balance of probabilities but is a lesser standard than the standard of beyond reasonable doubt. The standard is otherwise incapable of further definition.[36]
[36] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [28]; The State of Western Australia v West [No 6] [24]; The State of Western Australia v ZSJ [47].
The requirement is not that the risk that the offender will commit a serious offence must be at some high percentage of probability. A risk that the offender will commit a serious offence may be less than 50% yet still be an unacceptable risk.[37] It is the necessity 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 that must be proved by acceptable and cogent evidence and to a high degree of probability.
[37] The State of Western Australia v West [No 6] [24]; The State of Western Australia v ZSJ [47].
An unacceptable risk of the kind described in s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the offender offending, the type of offence the offender is likely to commit (if that can be predicted), the serious consequences for the victim if the offender commits a further offence and the serious consequences for the offender if a continuing detention order or supervision order is made.[38] That is, the court is required to consider whether, having regard to the likelihood of the offender offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the offender has already been punished for the offences they have committed, it is necessary in the interests of the community to ensure that they are subject to further control or detention.[39]
[38] Italiano v The State of Western Australia [2009] WASCA 116 [46]; The State of Western Australia v Newland [2018] WASC 344[12]; GBT v The State of Western Australia [2019] WASCA 40[21]; The State of Western Australia v West [No 6] [22]; The State of Western Australia v ZSJ [45].
[39] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63]; GBT v The State of Western Australia [21]; The State of Western Australia v West [No 6] [22]; The State of Western Australia v ZSJ [45].
By reason of the definition of 'high risk serious offender' contained in s 7(1), before the court can find under s 68(1)(b) that the offender remains a high risk serious offender it must be satisfied that it is necessary to make a restriction order in relation to the offender to ensure the adequate protection of the community against the relevant risk. Moreover, by reason of s 68(2), if the court finds that the offender remains a high risk serious offender it is the need to ensure the adequate protection of the community that is to be the paramount consideration for the court in deciding whether to affirm the continuing detention order or to make a supervision order.
The use of the word 'adequate' in s 7(1) indicates that a qualitative assessment is required. It cannot be assumed that the most preventative action is detention and that therefore the protection of the community will always favour such an order.[40] In this regard I respectfully adopt the following statements of Beech J (as his Honour then was) in Director of Public Prosecutions (WA) v DAL [No 2] which, although made in relation to review proceedings under the DSO Act, are equally applicable to the operation of s 7(1) and s 68(2) of the Act:[41]
In choosing between an indefinite detention order or a supervision order, the fact that the paramount consideration is the need to ensure the adequate protection of the community does not exclude other considerations. The use of the word 'adequate' indicates that a qualitative assessment is required. In considering whether a supervision order would adequately protect the community, account must be taken of conditions which can be placed on a supervision order so as to ensure the adequate protection of the community, the rehabilitation of the respondent and his care and treatment. The [DSO Act] does not require that there be no risk of reoffending. Such a requirement could never be met and would mean no person to whom the [DSO Act] applies would ever be released. The question is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community. That requires a weighing of the nature and degree of risk in the context of methods for the management and reduction of that risk. If, after considering all the evidence, the court is left in doubt as to whether the conditions of a supervision order would adequately protect the community, because the paramount consideration is the need to ensure the adequate protection of the community, the court must expressly decline to rescind the continuing detention order.
[40] Director of Public Prosecutions (WA) v Williams [63] ‑ [64]; Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14]; The State of Western Australia v Newland [21]; The State of Western Australia v West [No 6] [26]; The State of Western Australia v ZSJ [51].
[41] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33]. Also adopted in The State of Western Australia v Narkle [2019] WASC 404 [13] and The State of Western Australia v West [No 6] [26].
The scheme of the Act requires that the court do no more than is necessary to achieve an adequate degree of protection to the community.[42]
[42] The State of Western Australia v Latimer [2006] WASC 235 [25]; Director of Public Prosecutions (WA) v Decke [15]; The State of Western Australia v Newland [22]; The State of Western Australia v West [No 6] [27]; The State of Western Australia v ZSJ [52].
Section 7(2) of the Act provides that the State 'has the onus of satisfying the court as required by subsection (1)'.
Section 7(3) of the Act specifies the matters that the court must have regard to in deciding if an offender is a high risk serious offender for the purposes of s 7(1). The matters specified are substantially identical to the matters that the court was, by s 7(3) of the DSO Act, required to have regard to in deciding whether a person was a 'serious danger to the community' within the meaning of the DSO Act.
By s 68(1)(b)(ii) of the Act, the power of the court to rescind the continuing detention order and make a supervision order is expressed to be subject to s 29. Section 29 relevantly provides:
(1)A court cannot make, affirm or amend a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made, affirmed or amended.
(2)The onus proof as to the matter described in subsection (1) is on the offender.
The term 'standard conditions' in relation to a supervision order is defined in s 3 of the Act to mean a condition that under s 30(2) of the Act must be included in the order. Section 30(2) of the Act specifies seven conditions that must be included in any supervision order.
Therefore, the effect of s 29(1) and s 29(2) of the Act is that the offender must satisfy the court on the balance of probabilities that he will substantially comply with the standard conditions set out in s 30(2) before the court can make a supervision order in relation to him.
For the court to be satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions of the supervision order, it must be satisfied that the offender will comply with the standard conditions in a manner and to an extent that is consistent with, and will enable, the attainment of the general object of the supervision order and the Act, namely the adequate protection of the community by management and mitigation of the risk that the offender will commit a serious offence.[43]
[43] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52]; The State of Western Australia v Narrier [No 5] [113]; The State of Western Australia v West [No 6] [29]; The State of Western Australia v ZSJ [56] ‑ [58].
As to the purpose of a review hearing under the Act, the following statements made by Hall J in The State of Western Australia v Paul Douglas Allen also known as Paul Alan Francis Deverell [No 5][44] in relation to the review process provided for under the DSO Act are apposite (footnotes omitted):
The clear intention of the review process is to allow for the possibility of a change of circumstances. Detention under the DSO Act is not a punishment for past offending, rather it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised. If circumstances change such that the risk of reoffending reduces or can be better managed in the community, then the continuing need for detention must be considered.
The risk of reoffending may change over time. It may be affected by age, health or the successful completion of treatment. The availability of new technology or resources in the community may also affect whether the risk of reoffending can be managed on a supervision order.
The justification for making a detention order is the existence of an unacceptable risk of serious sexual offending that cannot be adequately controlled by conditional release. However, detention also serves the purpose of allowing treatment and care in a secure environment: s 17 DSO Act. This confirms an obligation on the part of the prison authorities to facilitate change by offering programs and access to counselling.
If the risk changes or resources improve to enable more efficacious conditions then the need for detention may dissipate. In these circumstances continuing detention may be unjust.
The review process is intended to ensure that detention only continues where necessary. It mitigates the otherwise potentially draconian effect of imprisoning people for crimes that they have not committed. Reviews are not, therefore, merely a welfare check, rather they are an exercise of judicial power to affirm, vary or rescind a detention order. Continuing detention should not be ordered unless that course is justified by the circumstances existing at the time of the review. The court should choose the order that is least invasive of the person's right to be at liberty, whilst ensuring an adequate degree of protection of the community.
[44] The State of Western Australia v Paul Douglas Allen also known as Paul Alan Francis Deverell [No 5] [2019] WASC 359 [7] ‑ [11].
Value of expert evidence
Given the expert evidence adduced on the application, it is worth repeating the following statements made by Steytler P and Buss JA (as his Honour then was) in Director of Public Prosecutions (WA) v GTR:[45]
Although there is no doubt, under the Western Australian Act, that a court must have regard to the psychiatrists' reports (and must bear in mind that the authors have an area of expertise not shared by the court), the reports are only a part of the materials that must be considered and the weight to be accorded to them will depend upon their cogency and reliability, when considered in light of the whole of the evidence. The responsibility for deciding whether or not the offender is a serious danger to the community as defined and, if so, what order should be made is that of the judge alone.
[45] Director of Public Prosecutions (WA) v GTR [62].
The s 7(3) matters
In the context of the present review it is not necessary for me, in dealing with the question whether the respondent remains a high risk serious offender, to deal individually and expressly with each of the matters specified in s 7(3) of the Act in the order in which they appear in the section. However, my below remarks are made in light of, and in order to address, the matters that are specified in s 7(3).
The respondent's personal circumstances
The respondent is 47 years old.
The respondent had a very dysfunctional and deprived childhood the details of which I do not need to refer to.
While in prison the respondent completed his education to a year 11 standard. His most recent period of employment was in an abattoir in Albany during the early period of the first supervision order.
Since his early teenage years the respondent has been in a number of relationships. However, the relationships have been marred by domestic violence.
The respondent has a partner. However, it is not clear if the relationship will remain on foot once he is released from detention.
The respondent has a 23‑year‑old daughter and a granddaughter. He currently has no contact with either his daughter or granddaughter.
The respondent's main sources of support in the community are his two sisters.
The respondent's plans for the future include working in the mining or construction industry.
The respondent's medical conditions include type 2 diabetes, hypertension, hypercholesterolemia, atrial fibrillation and congestive cardiac failure. He is prescribed medication for these conditions. He is also prescribed Citalopram (80 mg daily) for the control of his libido and Amitriptyline (20 mg nocte).
The respondent has a long history of alcohol use and illicit substance use.
The respondent has a lengthy criminal record for offences of violence, sexual offences, burglary and traffic offences.
The respondent's history of serious offending
The respondent has a history of serious offending including serious sexual offending. It is his serious sexual offending that has resulted in him being detained pursuant to the provisions of the DSO Act.
The respondent's history of serious offending has been set out in a number of decisions of this Court.[46] For present purposes it is sufficient to refer to the following summary of the respondent's serious offending given by Tottle J in Director of Public Prosecutions for Western Australia v Narrier [No 4]:[47]
On 24 March 1990 Mr Narrier, then aged 17, knocked on the door of the house of the victim and asked for a drink of water. When the victim returned, Mr Narrier was armed. Mr Narrier grabbed the victim by the throat, forced her into the bedroom and stripped her of her clothing. He then penetrated her anus and vagina with his fingers before attempting to penetrate her anus with his penis. Mr Narrier stole $25 from the victim before he bound her, gagged her and assaulted her whilst demanding more money. Following his arrest, Mr Narrier entered pleas of guilty to offences of aggravated sexual assault, armed robbery and burglary, and was sentenced by the President of the Children's Court on 1 May 1990 to a total of 4 years imprisonment. He was released on 21 January 1993.
On 5 February 1993, shortly after his release at the end of the 4 year sentence, Mr Narrier committed two offences of burglary, one of child stealing and one of assault occasioning bodily harm. The circumstances were that, whilst armed with a knife, Mr Narrier entered a house at 11.30 pm and removed the 12‑year‑old child/victim by force. He took the victim across the road where he forced her to the ground and removed her nightgown. Mr Narrier punched the victim three times to the face. Mr Narrier attempted to undo his trousers and lay on top of the victim. The victim's screams attracted the attention of neighbours who came to assist. On 17 June 1993 Mr Narrier was sentenced to a total of 5 years imprisonment. Mr Narrier was released on 3 February 1997.
Between 16 and 17 January 1998 Mr Narrier committed offences involving two female victims in their homes on a single night, namely, an aggravated burglary and sexual assault, and a second aggravated burglary with an associated assault occasioning bodily harm. The details are as follows. At about 11.00 pm on 16 January 1998, Mr Narrier grabbed the 30‑year‑old victim by the throat as she put her dog outside the back of her house. Mr Narrier forced her to the lounge room and pulled down her pants. Mr Narrier threatened to kill her if she did not stay quiet. Mr Narrier then penetrated the victim's vagina with his penis. After withdrawing from the victim, Mr Narrier went to the kitchen and later spoke to and apologised to her before leaving. Later that night, at about 1.15 am on 17 January 1998, Mr Narrier entered a different house through an unlocked door in order to steal money. The victim, who was asleep on the lounge, awoke and was restrained by the neck and head by Mr Narrier. She managed to struggle free. No sexual assault took place. For the offending on that night, Mr Narrier was sentenced on 16 June 1998 to terms of imprisonment structured to arrive at an aggregate term of 12 years imprisonment without parole. A term of indefinite detention was also imposed but later quashed by the Court of Appeal.
On 25 December 1998 Mr Narrier whilst in custody was involved in a riot at Casuarina Prison. He was convicted of nine offences including assault of a public officer, damage, threats to kill, threats to injure and threats to harm. On 28 April 2000 Mr Narrier was sentenced to 3 years imprisonment, without eligibility for parole, to be served cumulatively upon the 12-year term already imposed.
The effect was that Mr Narrier was required to serve a term of 15 years imprisonment from 19 January 1998. The end date of the aggregate sentences was 12 July 2008.
[46] The State of Western Australia v PNL [No 2]; Director of Public Prosecutions for Western Australia v Narrier [No 3]; Director of Public Prosecutions for Western Australia v Narrier [No 4].
[47] Director of Public Prosecutions for Western Australia v Narrier [No 4] [5] ‑ [9].
The respondent's above referred to sexual penetration offences, his child stealing offence and his armed robbery offence are 'serious offences' within the meaning of s 7(1) of the Act.
Developments since the determination of the second contravention application
The evidence tendered by the State reveals the following about the respondent's treatment, progress and conduct since the determination of the second contravention application.
Behaviour in prison
Since being arrested and returned to custody on 10 May 2018 the respondent has been found guilty of 11 prison offences. The offences are as follows:
1.Seven offences of testing positive to buprenorphine (19 June 2018, 1 July 2018, 30 July 2018, 5 June 2019, 18 August 2019, 2 December 2019, 2 March 2020);
2.One offence of testing positive to methylamphetamine (15 December 2018);
3.One offence of testing positive to cannabis (25 January 2020);
4.One offence of failing to submit a urine sample (31 July 2019); and
5.One offence of assaulting another prisoner (21 August 2018).
During the period between 10 May 2018 and 16 September 2020, the respondent has, while in prison, tested positive to an illicit substance (amphetamine, methylamphetamine, buprenorphine or cannabis) on 10 separate occasions with the last positive result being recorded on 16 March 2020.
The respondent is not employed in prison. He was employed as a laundry worker between 23 November 2018 and 10 February 2019. However, he was dismissed due to poor work performance.
The respondent socialises appropriately. Putting to one side his behaviour the subject of the prison offences, he is generally compliant with prison regimes. However, there have been instances where he has become verbally abusive to prison staff (26 February 2019, 5 June 2019, and 23 February 2020).
On one occasion the respondent was observed by prison staff throwing a sock over his unit fence into another unit. The sock was retrieved by another prisoner before prison staff were able to seize it.
Participation in programs
During the period 12 September 2019 to 24 October 2019 the respondent participated in a Medium Intensity (Violence) Program. He participated in the program because it was recommended by a general treatment assessment undertaken on 17 December 2018.
The respondent attended 22 out of the 53 program sessions. He left the program before completion at his own request. His reported reason for leaving the program was that he was feeling under threat from other prisoners in the unit in which the program was being run.
The program facilitators' summary of the respondent's performance while on the program was that he engaged well, made some gains in understanding a link between his attitudes and offending behaviour, and made some gains in understanding his issues with impulsivity and decision‑making. The facilitators formed the view that the respondent would benefit from recommencing the program at a later date at which time he could develop a risk management plan.
Psychological intervention
Prior to and during his most recent period in the community the respondent was engaged in individual therapy with FPS psychologist Ms Vanessa Rankin.
The respondent's counselling with Ms Rankin came to an end after he was returned to custody following his contraventions of the amended second supervision order. After the respondent was returned to custody responsibility for the provision of counselling to him was transferred to FPS psychologist Ms Amanda Thompson.
During the period 7 September 2019 to 26 June 2020 the respondent attended 14 individual counselling sessions with Ms Thompson. The respondent's counselling with Ms Thompson came to an end as a result of her resigning from her position.
During the respondent's counselling with Ms Thompson the following treatment goals were identified:
1.Explore and promote awareness for triggers precipitating substance use, and develop and strengthen relapse prevention management strategies;
2.Promote insight into emotional awareness and develop management skills, including distress tolerance and emotional regulation skills;
3.Develop and strengthen adaptive coping skills;
4.Explore and strengthen interpersonal and relationship skills, including effective communication; and
5.Explore and challenge anti‑social attitudes (particularly anti‑authoritarian attitudes) and pro‑criminal thinking and behaviour, and promote and build social alternatives.
At the completion of the 14 sessions Ms Thompson reported that the respondent had engaged well in treatment but had tended to request the early termination of sessions as treatment progressed. She noted that this behaviour likely reflected the respondent's propensity to become emotionally fatigued or his tendency to avoid exploration of emotionally charged topics.
Ms Thompson reported that the respondent had demonstrated capacity for self‑reflection and had displayed some insight into the factors that precipitated his contraventions of the supervision order and the amended second supervision order. She noted that the issues that the respondent reported as leading to his contraventions included feeling that the conditions of the amended second supervision order were excessively restrictive and had set him up to fail (particularly the conditions preventing him from being allowed in his sister's home), feeling overwhelmed and trapped due to jealousy and accusations of infidelity by his ex‑partner (which he linked to restrictions placed upon their relationship), and his reliance on illicit substance use as a means of managing emotions and as a form of escapism.
According to Ms Thompson the respondent during counselling noted his tendency to suppress negative emotions, to disengage from available supports under circumstances of elevated stress and to adopt a defeatist attitude. She noted that the respondent also acknowledged an inability to deal with potential conflict.
According to Ms Thompson the respondent, in relation to his sexual offending, identified alcohol misuse as a proximal risk factor. The respondent acknowledged the impact on his victims of his offending. The respondent asserted that his prescribed antidepressant medication had reduced his sexual drive.
Ms Thompson reported that in exploring the respondent's ongoing issues with substance use the respondent identified factors that impact on his ability to remain abstinent to be his heightened stress in response to the uncertainty of his dangerous sexual offender (DSO) (now high risk serious offender) status, a lack of peer support in his placement, low mood in response to stresses (for example, imprisonment, ongoing family concerns), regular opportunities and pressure to use substances, and his poor peer refusal skills.
Ms Thompson reported that the respondent had expressed a willingness to commence intervention with a new clinician.
Future psychological intervention
The respondent is due to commence counselling with a new FPS psychologist, Dr Lynley Poli, in the coming weeks.
Dr Wojnarowska's evidence
Report
Dr Wojnarowska's report reveals the following.
Dr Wojnarowska interviewed the respondent on 24 July 2020.
The respondent admitted to Dr Wojnarowska obtaining Suboxone[48] from other prisoners. He told Dr Wojnarowska that Suboxone made him feel relaxed implying that his life in prison was 'boring', and that he associated himself with others who also used illicit substances. He told Dr Wojnarowska that methylamphetamine was his drug of choice but that after 'six dirties I decided to change'. He also told Dr Wojnarowska that he would like to attend drug rehabilitation when he is released because he recognises that his offending has been directly related to his drug use. He said that he was 'stoned off his head each time' that he offended.
[48] Suboxone (Buprenorphine) is an opioid used to treat opioid use disorder.
The respondent told Dr Wojnarowska that his main focus with his psychologist (Ms Thompson) had been his drug use. He asserted that he had made gains from his counselling because he is now more open in his communications and reaches out to people when he is 'in trouble'. He said that he was a 'bit wiser' and was still working on how to deal with pressures from others which in the past have led to contraventions of his supervision orders.
The respondent told Dr Wojnarowska that he has no urges to sexually reoffend or to commit burglaries. He asserted that his sex drive was low because of the effects of the antidepressant medication.
The respondent expressed the opinion to Dr Wojnarowska that he would be able to 'stick to the order' and that he would be able to recognise if he was going downhill.
When Dr Wojnarowska questioned the respondent about any other things he had learned from psychological counselling the respondent said that he had developed empathy for his victims and an understanding of what they felt and what they were going through.
In relation to his future plans, the respondent informed Dr Wojnarowska that he intended obtaining accommodation with Uniting WA and working in the mining or construction industry. He told Dr Wojnarowska that he will continue with his current medication because it helps him with his anger and impulsivity. He told Dr Wojnarowska that he was not sure whether he would be living with his partner on release. He said, 'I don't think about my woman that much and I don't want to go back to her straight away. I was jealous of her in the past but not any longer, if she wants to go she can go'.
The respondent expressed his belief to Dr Wojnarowska that he would be able abstain from alcohol and illicit substances. He expressed his willingness to obey any conditions that the court may impose on him.
Dr Wojnarowska's diagnostic formulation relating to the respondent has not changed since her assessments of him in 2008 and 2014. Her diagnostic formulation includes anti‑social personality disorder with emotionally unstable (borderline) traits, and cannabis, amphetamine and alcohol use disorder.
Dr Wojnarowska undertook an assessment of the risk of the respondent committing further sexual offences in the future. In carrying out this assessment she used two types of tools, namely Actuarial Instruments and Structured Clinical Guides.
Actuarial Instruments use mainly static (that is unchanging) risk factors. In contrast, Structured Clinical Guides use both static and dynamic risk factors. Structured Clinical Guides require clinicians to consider different factors which impact upon the assessment of risk.
The Actuarial Instrument used by Dr Wojnarowska was the Static‑99R (2016 revision).The Structured Clinical Guides that Dr Wojnarowska used were the Risk Sexual Violence Protocol (RSVP) and the 3‑Predictor Model (Allan & Dawson, 2002, 2004; Allan et al., 2006).
In making use of the Static‑99R Dr Wojnarowska recognised that there are issues associated with using this tool in Australian Aboriginal offenders. She noted that while local research in this State suggests that Static‑99R appears to reliably estimate the likelihood of violent reoffending it is less reliable in relation to sexual reoffending, and that this needs to be borne in mind when considering the results of the risk assessment using this tool.
The score obtained by the respondent on Static‑99R placed him in the 'Well Above Average Risk' for reoffending. This indicates a 27% likelihood of the respondent committing a sexual offence within five years of being released against a baseline risk of sexual reoffending of approximately 10%.
In making use of the RSVP Dr Wojnarowska identified the following factors as being relevant to the assessment of the respondent's risk of reoffending and manageability in the community:
1.Psychological adjustment: The respondent has continued to demonstrate a lack of ability to implement mature coping mechanisms and instead uses illicit substances as a means of coping. The respondent's impulsivity and deficits in self‑image remain a 'major vulnerability point'. Any perceived or real rejection or personal failure or insult 'could have catastrophic consequences with [the respondent] very quickly resorting to intravenous drug use, which could escalate to sexual offending'.
2.Problems with substance use;
3.Violent ideations: The respondent is capable of violence, both sexual and associated additional violence when under the influence of drugs;
4.Problems with intimate relationships;
5.Unemployment: The respondent's current plans to work in the mining or construction industry do not appear to be realistic due to his lack of experience, lack of qualifications and inability to abstain from drug use;
6.Problems with planning: The respondent is highly impulsive which is associated with his personality style and could be modulated by psychological counselling only to a certain degree. His impulsivity increases with stress and when intoxicated;
7.Problems with treatment: The respondent has demonstrated difficulties with coping and management of emotions while still supported by a psychologist; and
8.Problems with supervision: Despite the respondent's current motivation to do well and current pro‑social attitudes and sound therapeutic engagement in counselling, his risk of supervision non‑compliance remains high given the matters specified in relation to the psychological adjustment risk factor.
In relation to the above referred to psychological adjustment risk factor, Dr Wojnarowska points out that while in the community the respondent found it increasingly difficult to cope with the constraints of his supervision order and was unable to disclose his frustrations to his psychologist or CCO. She considers that although the respondent is cognisant of his interpersonal deficits which can trigger off the cycle of offending through alcohol and illicit drug use, he still appears to struggle in this area as is evidenced by his drug use. In her opinion the respondent's psychological functioning is a major concern.
In Dr Wojnarowska's opinion the relevance of the problems with substance use risk factor cannot be overstated in the respondent's case, especially in light of his recent drug use while in prison. In her view the respondent will require not only support but also strict supervision in this area if he is released into the community.
In Dr Wojnarowska's view the problems with intimate relationships risk factor is of particular relevance in the respondent's case. She notes that the respondent has a history of violence in his intimate relationships and that there is a history of him breaching his order conditions when living in a volatile relationship.
With respect to the problems with treatment risk factor, Dr Wojnarowska's opinion is that there has been no change in the respondent’s ability to manage his emotions since she last reviewed him in 2017.
As to the respondent's 'risk scenario', in Dr Wojnarowska's view the respondent's pattern of offending has been consistent. In her view the respondent is more likely to commit an opportunistic sexual offence after breaking and entering into someone's house to steal money or goods or drugs. She considers that targeted sexual violence is also possible if, for example, the respondent sees a woman or even a female child through a window at night time.
In Dr Wojnarowska's view the 'warning signs' for a risk of reoffending by the respondent would include avoiding supervision and counselling sessions, and providing excuses for doing so. She considers that the respondent is 'likely to be intoxicated with alcohol and/or illicit substances prior to any offending or may have had an argument with his partner'.
In making use of the 3‑Predictor Model, Dr Wojnarowska makes the following points in relation to the respondent's risk of committing further sexual offences:
1.The respondent continues to use illicit drugs as his coping strategy even in a controlled environment where he is not exposed to stressors associated with everyday living. It is therefore unrealistic to expect that he will abstain from illicit substances and alcohol when readily available and when he is in the company of associates who also use these substances;
2.The respondent is likely to seek an environment where the use of illicit substances and alcohol is present; and
3.The respondent faces obvious barriers to his long‑term plans of obtaining and maintaining employment in a physically demanding position in mining or construction where drug abstinence is a requirement. Further, his general health is not optimal.
In summary, in Dr Wojnarowska’s opinion the respondent's risk of sexual reoffending, as assessed by using Static‑99R, RSVP and the 3‑Predictor Model, remains high and unchanged since 2017, and is associated with the respondent's anti‑social personality, his difficulty self‑regulating, and his alcohol and illicit drug use. In her opinion the respondent continues to be at a high risk of sexual reoffending if he is not subject to a continuing detention order or supervision order under the Act. She notes in this context that although the respondent has made a sustained effort to work on his treatment goals he has resorted to drug use under stress and has done so despite being in a very structured and supportive environment in which other options have been easily available to him.
In relation to managing the respondent in the community, Dr Wojnarowska makes the following recommendations:
1.The respondent be subjected to long‑term psychological treatment directed at addressing emotional functioning, stress and sexual drive management, self‑awareness and self‑esteem, interpersonal functioning, and illicit drug use;
2.The respondent engage in drug counselling (which remains a priority);
3.The respondent continue treatment with his current medications to reduce his libido;
4.The respondent be subjected to close supervision of his mental state and strict surveillance of his drug use, with any contraventions relating to substance use resulting in an immediate breach; and
5.The respondent be provided with supported accommodation.
In relation to the respondent's need for long‑term psychological treatment, in Dr Wojnarowska's view the respondent is unlikely to improve in the 'next years to come'.
Oral evidence
In her oral evidence Dr Wojnarowska maintained the material views and opinions expressed by her in her report.
In her evidence‑in‑chief Dr Wojnarowska gave the following supplementary evidence.
When she assessed the respondent for the purposes of the application she did not expect there to be much change in terms of her earlier diagnosis of anti-social personality disorder.[49] She was, however, more interested in ascertaining whether there was any change in her previous diagnosis of substance use disorder.[50] The conclusion that she arrived at, after seeing the respondent, and after reviewing the Substance Use Test Results and the Prison Incident Description Reports was that there was no change in her previous diagnosis of substance use disorder either.[51]
[49] ts 46.
[50] ts 46.
[51] ts 46.
The respondent's reliance on substance use to regulate his emotions and to cope with stressors is a risk factor that is likely to lead to him engaging in non-sexual offending which would then lead to sexual offending, as has previously been the case.[52] The respondent does not specifically target women or children.[53] Rather, his sexual offending is associated with his anti-social behaviour and usually alcohol and/or drug intoxication.[54]
[52] ts 47.
[53] ts 47.
[54] ts 47.
The medication Citalopram is a selective serotonin reuptake inhibitor (SSRI) antidepressant medication that is used as a first line anti‑libidinal treatment.[55] The respondent reported to her that his libido has decreased since he commenced taking the medication.[56] She has no way of testing this assertion objectively.[57] However, a majority of people taking the dose of medication that the respondent is taking would experience a suppression of their libido.[58]
[55] ts 49.
[56] ts 49.
[57] ts 49.
[58] ts 50.
At the time of preparing her report she had not been provided with the Substance Use Test Results, Prison Incident Description Reports and CBI notes.[59] However, having reviewed these documents she would say that her statement in her report that the respondent has made a sustained effort to work on his treatment goals 'was very generous'.[60]
[59] ts 48 - 49.
[60] ts 50.
The respondent needs to continue receiving psychological counselling and in addition needs to participate in a drug rehabilitation program wherever such a program is available.[61]
[61] ts 51.
In her opinion the respondent's high risk of committing further sexual offences cannot at this point in time be adequately managed in the community.[62] She would not support the respondent's release at this point in time.[63]
[62] ts 51.
[63] ts 51.
She perceives the respondent's inability to abstain from illicit substances, even in a very structured and confined environment, 'as a significant risk of him committing a non-sexual offence which could then lead to committing a serious sexual offence'.[64]
[64] ts 52.
In cross‑examination Dr Wojnarowska said the following.
She is very familiar with the Solid Steps Alcohol and other Drugs Recovery Program (the Solid Steps Program).[65] The Solid Steps Program is specifically focused on drug and alcohol abuse.[66] It is an intensive nine month program.[67] It is the sort of program that is tailored to address the respondent’s needs and which would be very helpful to the respondent.[68] She would strongly recommend the respondent's admission to the Solid Steps Program.[69] She would say that the program is much better than any other form of drug counselling.[70]
[65] ts 52.
[66] ts 53.
[67] ts 53.
[68] ts 52.
[69] ts 53.
[70] ts 53.
She considers that counselling with a psychologist would focus on different issues and other treatment needs of the respondent and should run parallel to the respondent participating in the Solid Steps Program.
The respondent has expressed to her a positive view about the effects of taking the Citalopram medication.[71]
[71] ts 54.
It is fair to say that the control of libido is an important factor in reducing the respondent's risk of sexual offending.[72] However, in the respondent's case she would say that the control of the respondent's drug use is the prime factor in reducing the risk of his sexual offending.[73]
Dr Galloghly's evidence
[72] ts 54.
[73] ts 54.
Report
Dr Galloghly's report reveals the following.
Dr Galloghly interviewed the respondent on 7 August 2020 and 17 August 2020 for a total of approximately one and a half hours. Further, in order to enable him to carry out his assessment of the respondent he had access to a number reports previously prepared in relation to the respondent.
The respondent engaged readily in the assessment. The respondent impressed as being open in disclosure. The respondent displayed no indications of mental health issues. Overall his mental status was within normal bounds.
The respondent acknowledged to Dr Galloghly his prison offences. He admitted to using illicit substances in prison. He reported that he had been 'shooting up Subutex' (that is, buprenorphine).
When Dr Galloghly questioned the respondent about his counselling with Ms Thompson, the respondent stated that he and Ms Thompson had been working on 'every day things' and that he would tell her about his frustrations. When Dr Galloghly asked the respondent if he had obtained much benefit from counselling the respondent replied 'a little bit' and added that he was 'stressing out a lot' and that 'everything was boxed up'. The respondent identified the strategies that he had learnt from the counselling for dealing with stress to include walking away and 'taking a breath', taking time for himself, talking to a prison officer when necessary, and reaching out to other people when he needed help. The respondent listed his sources of stress to include being in prison and his legal issues.
The respondent readily acknowledged to Dr Galloghly that he has an ongoing problem with substance use. He reported a desire to 'go to rehab' saying that 'rehab would give [him] the tools' to stop using drugs. The respondent asserted that when he was in the community he managed his substance use issues while he was engaged with Cyrenian House, and that when he had started using illicit substances again he was no longer engaged with Cyrenian House.
The respondent informed Dr Galloghly that he had not used illicit substances for a number of weeks and that illicit substances were not currently readily available in prison due to the recent restricted visits policy. He asserted that he was no longer in regular contact with offenders who had drugs and that he did not go out of his way to seek drugs. The respondent identified his motivation to remain abstinent from illicit substances as 'getting better'.
When Dr Galloghly asked the respondent about what treatment would be useful to him if he was unable to gain a place in a residential rehabilitation service due to his DSO (now high risk serious offender) status, the respondent stated that he would again seek help from Cyrenian House and that he would 'even do a course there'. Other factors that the respondent identified as being important to his ability to remain abstinent from illicit substances included having a job and spending more time with his daughter and granddaughter.
The respondent informed Dr Galloghly that he had recently discussed with Dr Wojnarowska a medication that he could use to reduce his cravings for drugs. He stated that this is something that he would like to try.
In relation to sexual offending issues, the respondent told Dr Galloghly that he no longer thinks about sexual offending or has deviant sexual thoughts. He asserted that he now has a lower sex drive and only thinks about sex intermittently. He asserted that he did not have deviant sexual urges when he was last in the community. He asserted that alcohol use is his biggest risk factor for offending and expressed the view that drug use was not such a prominent risk factor for him. However, he conceded that drug use could lead to him using alcohol as drug use can give him a 'false sense of confidence'. The respondent also acknowledged that drug use leads to issues such as being deceitful (for example, lying to his management team) and then becoming stressed about all the lies he has to tell to himself and others.
Dr Galloghly questioned the respondent about what he would do differently, and how he would manage his risk, if he was released back into the community. In response to this questioning the respondent stated that he needed to conclude his relationship with his partner due to the difficulties with the relationship. He stated that he needed to communicate better with his support team and to disclose problems that he was experiencing. He reported an intention to spend more time with his family and to better use his professional supports. He confirmed his belief that he should be allowed to visit his sister's house as she is his main support. The respondent also confirmed that managing his drug use was the major issue for him at the moment.
In Dr Galloghly's opinion it is evident that the respondent lacks the capacity to resist drug use in the community and in prison despite all the treatment that he has received to date. Dr Galloghly considers that the respondent appears to suffer from both external (for example, peer pressure and availability) and internal (for example, cravings and emotional management) triggers to use illicit substances.
Dr Galloghly notes that on the respondent's account his drug use when he was last in the community began by him taking up an offer to sell methylamphetamine. In Dr Galloghly's view, if this is true the respondent's conduct suggests extremely poor judgment and problem solving capacity, and also highlights the anti‑social personality traits of deceitfulness, impulsivity and general criminality. Dr Galloghly considers that it is evident that the respondent has treatment needs related to these issues.
In Dr Galloghly's view the respondent's difficulties with substance use indicate that he requires a comprehensive treatment plan that will most likely need to include a pharmacotherapy option and significant positive social support such as Narcotics Anonymous. Dr Galloghly considers that the respondent's history to date suggests that individual counselling by itself is ineffective for the respondent to remain abstinent.
Dr Galloghly notes that the optimal form of treatment for the respondent would be a residential rehabilitation program. However, he acknowledges that it is unlikely that a mainstream program would accept the respondent given his high risk serious offender (dangerous sexual offender) status and risk profile. He notes his understanding that there are few to any residential programs available for offenders of the respondent's type.
According to Dr Galloghly the respondent did not seem to appreciate that his return to significant intravenous methylamphetamine use 'could have led to extreme disinhibition and is a probable catalyst for placing him in situations that could avail opportunities for offending'.
In Dr Galloghly's opinion, overall the respondent was able to demonstrate some level of insight into his psychological and interpersonal problems, including his substance abuse issues. However, Dr Galloghly considers that the respondent's historical and more recent behaviour both in the community and in prison indicates ongoing behavioural control issues. He identifies the respondent's outstanding treatment needs to include problem solving, impulsivity, stress management and substance use.
As to future treatment of the respondent, Dr Galloghly notes that despite the respondent's many years of counselling and completion of a number of criminogenic treatment programs, he continues to have significant treatment needs related to substance abuse, poor emotional management and general anti‑social behaviour. In Dr Galloghly's view the respondent's substance use issues are 'particularly considerable' given his ongoing use of substances in prison.
In Dr Galloghly's view the respondent appears to lack pro‑social culturally appropriate male influences and vocational pursuits. He considers that the respondent's treatment plan should therefore include endeavours to link him with resources that can provide for these needs.
In Dr Galloghly's view if the respondent continues to be detained in prison he will benefit from again participating in an intensive substance use treatment program such as Pathways. He considers that such a program is more suited to the respondent's needs than the Medium Intensity (Violence) Program.
Dr Galloghly considers that the respondent would also benefit from re‑engaging with a community based drug treatment agency such as Cyrenian House, although he recognises that such a service will be unlikely to offer assistance until a release date is known. He considers that the option of a male only alcohol and other drug residential treatment program should also be explored. In his view a planned eventual release to an appropriate residential rehabilitation service would be an optimal release strategy for the respondent.
Oral evidence
In his oral evidence Dr Galloghly maintained the material views and opinions expressed by him in his report.
In his evidence‑in‑chief Dr Galloghly gave the following supplementary evidence.
In his opinion the respondent's main treatment need is his drug use which is something that the respondent readily admits to.[74] There is a consistent history of the respondent having problems with drugs both in the community and in custody.[75]
[74] ts 59.
[75] ts 59.
It was during his first interview with the respondent on 7 August 2020 that the respondent asserted that he had not used drugs for a number of weeks.[76]
[76] ts 59.
In his opinion the respondent requires a more robust treatment plan than just individual counselling to address his substance use.[77] He is of this opinion given that the respondent has now had two opportunities in the community which, in the main, were not successful due to his drug use.[78] In his view individual therapy alone will not be sufficient for the respondent to treat his drug use problems.[79]
[77] ts 61.
[78] ts 61.
[79] ts 61.
In his opinion the respondent probably needs to engage in a serious intensive program, optimally a residential program in the community, if one is available.[80] The respondent also needs to look at other social supports like Narcotics Anonymous or generating a pro-social network in addition to obtaining treatment.[81]
[80] ts 61.
[81] ts 61.
He is aware of the Solid Steps Program although he does not know the details of the program.[82]
[82] ts 62.
There are a number of pharmacotherapy options for the respondent that can be explored such as the methadone program and the buprenorphine program.[83] These pharmacotherapy programs are now being offered in prison.[84] The respondent’s suitability for such programs would need to be assessed.[85] Generally it is people who have a dependence on opioids that are deemed to be suitable for the programs.[86] Typically people who are on such a program experience a reduction in their cravings for drugs in general.[87]
[83] ts 62.
[84] ts 62.
[85] ts 62.
[86] ts 62.
[87] ts 62.
Buprenorphine is an opioid.[88] Therefore the use of methadone as part of a methadone program would address the respondent's use of buprenorphine.[89]
[88] ts 62 - 63.
[89] ts 63.
In cross‑examination Dr Galloghly said the following.
He agrees with Ms Thompson's assessment that the respondent has difficulty in navigating personal stresses and that this has particular relevance to the respondent's propensity to lapse into substance use.[90] However, with respect to Ms Thompson's view that the respondent appeared to show improvement in this area over time, he is not sure that he would say that the respondent has demonstrated such improvement.[91]
[90] ts 64.
[91] ts 64.
From what he has heard about the Solid Steps Program this does seem to be the sort of program that would fit with the treatment needs of the respondent.[92] He agrees with the evidence of Dr Wojnarowska as to the appropriateness of the Solid Steps Program to the needs of the respondent.[93]
[92] ts 64.
[93] ts 65.
Inherent in the pharmacotherapy treatment model is that the respondent would be taking some of the drugs (buprenorphine) that he currently illicitly takes.[94]
[94] ts 65.
Ms Cashmore's evidence
Report and CBI notes
Ms Cashmore's report and the CBI notes reveal the following.
When Ms Cashmore discussed with the respondent high risk scenarios and proposed conditions of him being released, the respondent was unable to identify any concrete and realistic strategies to assist him to avoid high risk situations, and in particular to assist him to avoid relapse into illicit substance use. The respondent asserted that he would talk to his supports, including his Senior CCO when feeling frustrated. He also identified engagement with an employment/training agency that he had previously engaged with as a protective factor with respect to avoiding high risk situations and relapse into illicit substance use.
Ms Cashmore asked the respondent when he had last used drugs. The respondent stated that he had done so 'two to three weeks ago'.
Ms Cashmore asked the respondent whether he had engaged in Narcotics Anonymous or Alcoholics Anonymous while in custody. The respondent told her that he had not done so. He said that he would rather engage in drug and alcohol treatment and counselling in the community. He said that he did not want to attend a program run by other prisoners and that he would prefer something facilitated by trained professionals.
The respondent is currently engaged with Uniting WA under the Supported Accommodation Program (the SAP) for assistance with accommodation and reintegration support in the Perth metropolitan area. Under the SAP accommodation is made available to high risk serious offenders for approximately a 12‑month period during which time the offender is assisted in securing his own accommodation. Currently the Department of Communities - Housing has provided six properties under the SAP. At present none of these properties are available, although the situation is subject to change and if a property becomes available for the respondent it would be assessed by COMU and the Western Australian Police Force Sex Offender Management Squad (SOMS).
None of the respondent's family members are in a position to assist him with accommodation.
In light of the respondent's expressed willingness to engage in residential rehabilitation, on 5 August 2020 Ms Cashmore made contact with a number of residential rehabilitation services. However, the information received from these services revealed that residential rehabilitation is not a viable option for the respondent given his offending history and exclusion criteria relating to sex offenders.
Ms Cashmore has also made contact with a number of accommodation service providers. Her inquiries have revealed that these hostel and lodging‑style accommodation services are also not feasible options for the respondent at this time.
Ms Cashmore, after consulting with Dr Wojnarowska and Dr Galloghly, recommends a total of 54 conditions for the court's consideration in the event that the respondent is considered suitable for release on a supervision order (replicated in full in Annexure 1 to these reasons). The conditions include the following:
1.Requiring the respondent to reside at a specified address;
2.Requiring the respondent to report to SOMS and to disclose certain information to SOMS to facilitate his management in the community;
3.Requiring the respondent to be subjected to Global Positioning System (GPS) monitoring, including the use of GPS exclusion zones;
4.Permitting COMU and SOMS to review the respondent's electronic devices (which will allow for the monitoring of any potentially negative peer associations, relationship conflict or potential high risk scenarios);
5.Requiring the respondent to identify new friendships and relationships;
6.Preventing the respondent from entering residential addresses where females live without prior approval;
7.Preventing females from entering the respondent's residence without prior approval;
8.Preventing the respondent from being in vehicles with females without prior approval; and
9.A curfew requirement (aimed at providing the respondent with stability and structure in addition to limiting his potential access to negative peers and high risk situations).
If the respondent is released on a supervision order he will be subject to close monitoring and supervision by the members of the Risk Management Team, including police officers from SOMS, CCOs, management staff from the Department and FPS psychologists. The risk management of the respondent will include regular and unscheduled home visits, liaison with community agencies and other stakeholders, as well as regular reviews of the respondent's risk factors at risk management meetings.
Oral evidence
In her supplementary evidence Ms Cashmore said the following.
Her understanding is that there are currently four SAP properties that are vacant.[95] However, these properties are reserved for four offenders who are awaiting the outcome of reserved decisions.[96] Apart from these four individuals the respondent would be the next in line for SAP housing. In other words, there are four individuals ahead of the respondent at this stage.[97]
[95] ts 67.
[96] ts 67.
[97] ts 67.
In relation to the Medium Intensity (Violence) Program that the respondent engaged in but did not complete, it is her understanding that once the respondent moved from the unit in which he was housed he was not able to continue with the program.[98] The program was run specifically in the unit where the respondent was experiencing difficulties.[99]
[98] ts 69.
[99] ts 69.
Overall assessment of the evidence
As I have already indicated, the evidence of Dr Wojnarowska and Dr Galloghly in the form of their reports was adduced without objection. Their evidence was broadly consistent and was not the subject of any substantial challenge by the respondent. Each of them fully explained their reasons for arriving at the opinions they expressed. In these circumstances, and subject to one caveat, I accept the evidence given by Dr Wojnarowska and Dr Galloghly. The caveat relates to Dr Wojnarowska’s evidence that in her opinion the respondent's high risk of committing sexual offences cannot be adequately managed in the community. Although Dr Wojnarowska’s expert opinion evidence on this point may be relevant to my determination of the question whether, in the event that I find that the respondent remains a high risk serious offender, the continuing detention order should be affirmed or the respondent should be released on a supervision order, ultimately it is for me, not the expert witness, to make the relevant ultimate finding.[100]
[100] See [53] above.
I also accept the evidence given by Ms Cashmore none of which was the subject of any substantial challenge by the respondent.
Analysis and findings
Given the terms of s 68(1) of the Act, the questions for my determination are as follows:
1.Does the respondent remain a high risk serious offender within the meaning of s 7(1) of the Act? and
2.If the respondent does remain a high risk serious offender, should the continuing detention order be affirmed or should the continuing detention order be rescinded and a supervision order be made?
The respondent did not attempt to argue that I should find that he is no longer a high risk serious offender. Nor did he attempt to argue that I should, on the evidence presented, find that the risk that he presents to the community can be adequately managed by releasing him into the community on a supervision order with appropriate conditions. Of course, the fact that the respondent took this position does not absolve me from the responsibility of determining the relevant questions on the basis of the evidence before me.
Does the respondent remain a high risk serious offender?
Dr Wojnarowska's evidence was that in her opinion the respondent continues to be at a high risk of committing further sexual offences if he is not subject to a continuing detention order or a supervision order. As I have already indicated, I accept Dr Wojnarowska's evidence on this issue. I am therefore satisfied that the respondent remains at a high risk of committing further sexual offences if he is not subject to a continuing detention order or a supervision order.
Further, taking into account the nature of the sexual offences committed by the respondent in the past and in light of Dr Wojnarowska's evidence, I am also satisfied that the type of sexual offences that the respondent remains at high risk of committing if he is not subject to a continuing detention order or a supervision order include offences involving opportunistic sexual penetration of females without their consent with associated additional violence (that is, a 'serious offence' as defined in s 5(1) of the Act).
On the basis of my findings of fact expressed in the preceding two paragraphs, I am satisfied to a high degree of probability that it is necessary to make a continuing detention order or a supervision order in relation to the respondent to ensure the adequate protection of the community against an unacceptable risk that he will commit a serious offence. It follows that I find that the respondent remains a high risk serious offender.
Continuing detention order or supervision order?
The question that remains for my determination is whether the respondent should continue to be detained pursuant to a continuing detention order, or whether he should be released into the community pursuant to a supervision order.
The applicant's submissions
The applicant submits that in light of all the evidence the respondent has not discharged his burden of proving on the balance of probabilities that he will substantially comply with the standard conditions of a supervision order, most specifically the standard condition specified in s 30(2)(d) that he comply with any reasonable direction of a CCO, the standard condition specified in s 30(2)(f) that he not commit a serious offence, specifically a sexual offence that falls within the definition of 'serious offence' during the period of the order, and the standard condition specified in s 30(2)(g) that he be subject to electronic monitoring under s 31.
The applicant further submits that even if, contrary to its primary position, the respondent has proved on the balance of probabilities that he will substantially comply with the conditions of a supervision order, the continuing detention order should be affirmed because the risk presented by the respondent cannot be adequately managed by the conditions of a supervision order. The applicant submits that the respondent's circumstances have not changed to any substantive extent since the time of the determination of the second contravention application with the result that it cannot be concluded that the need to ensure adequate protection of the community will be able to be met by releasing the respondent on a supervision order.
Analysis
As I have previously indicated, by s 29(1) and s 29(2) of the Act I cannot make a supervision order unless the respondent has satisfied me on the balance of probabilities that he will substantially comply with the standard conditions of the order.
The respondent has a history of contravening supervision orders. His contraventions have been serious and have included contraventions of the standard conditions of his supervision orders.
The respondent's contraventions of the amended second supervision order were directly related to his relapse into illicit substance use. Once the respondent relapsed into his illicit substance use he commenced to contravene the amended second supervision order.
Despite the respondent's engagement in a significant amount of psychological counselling since being returned to custody, it is established by the evidence before me that he has made no or very little progress in relation to his illicit substance use problem. His lack of progress in this regard is clearly evidenced by his ongoing use of illicit substances in the highly structured and controlled prison environment.
In the circumstances to which I have referred, and consistently with the evidence given by both Dr Wojnarowska and Dr Galloghly, I am satisfied that if the respondent was to be released into the community, even on the proposed stringent conditions of a supervision order, he would not be able to abstain for any appreciable period of time from illicit substances and/or alcohol. I am also, on the basis of the evidence given by Dr Wojnarowska, and taking into account what has occurred in the past when the respondent has relapsed into illicit substance use while on a supervision order, satisfied that the inevitable result of such a relapse would be that the respondent would fail to comply with the supervision component of the order. I am further satisfied, on the basis of the evidence given by Dr Wojnarowska, that the inevitable result of the respondent relapsing into illicit substance use and/or alcohol use while on a supervision order would be that the respondent would be at significant risk of committing opportunistic serious sexual offences of the type to which I have already referred.
It necessarily follows from my findings stated in the preceding paragraph that the respondent has failed to satisfy me on the balance of probabilities that he would substantially comply with at least the standard conditions of any supervision order specified in s 30(2)(d) and s 30(2)(f) of the Act. For this reason alone I am not persuaded that the respondent should be released on a supervision order.
Even if contrary to my above expressed conclusion the respondent has proved on the balance of probabilities that he would substantially comply with the standard conditions of a supervision order, I am not, bearing in mind that I am required to apply as the paramount consideration the need to ensure adequate protection of the community, satisfied that the community can be adequately protected by releasing the respondent on the proposed supervision order. I am not so satisfied for two main reasons.
The first reason relates to the absence of suitable supported accommodation for the respondent.
In The State of Western Australia v Corbett [No 5][101] Hall J made the point that accommodation for a person on a supervision order is not simply a place to live, and that the location and type of accommodation are factors that are integral to any proper assessment of the risk of reoffending.
[101] The State of Western Australia v Corbett [No 5] [2017] WASC 115 [80].
It is abundantly clear from all the evidence, and is accepted by the respondent, that if the risk presented by him is to be adequately managed in the community it is imperative that he be provided with suitable supported accommodation on his release. If he is not provided with suitable supported accommodation he will, I am satisfied, remain at high risk of committing serious offences including serious sexual offences.
The simple fact of the matter, as is established by the evidence of Ms Cashmore, is that at present there is no suitable supported accommodation that is available for use by the respondent. The absence of any suitable supported accommodation is of itself a basis for concluding that the community will not be adequately protected by releasing the respondent on a supervision order.
Given the absence of suitable supported accommodation for the respondent, the comments made by Hall J in The State of Western Australia v Corbett [No 5][102] in relation to the inadequacy of existing arrangements for accommodation of dangerous sexual offenders, now high risk serious offenders, who are being considered for release on supervision orders are applicable to the present case.[103]
[102] The State of Western Australia v Corbett [No 5] [78], [81] ‑ [82].
[103] The respondent did not seek an adjournment of the application on the basis of the current unavailability to him of suitable supported accommodation. In all the circumstances of the application, including the uncertainty as to when any such accommodation may become available to him, the respondent's approach in this regard was understandable.
My second reason for not being satisfied that the need to ensure adequate protection of the community will be able to be met by releasing the respondent on a supervision order relates to his illicit substance use and alcohol use problem.
It is established by the evidence before me to which I have referred that there is a direct link between the respondent's use of illicit substances and/or alcohol and his offending. It is also clear on the evidence that if the respondent uses illicit substances the risk that he will use alcohol is significantly increased.
As I have already indicated and for the reasons I have stated, I am satisfied that the respondent, if released into the community and even if subjected to the stringent conditions of a supervision order, will not be able to abstain for any appreciable period of time from illicit substance use and/or alcohol use. Further, and as I have also already indicated, I am satisfied that the inevitable result of the respondent relapsing into illicit substance use and/or alcohol use will be that he will be at a significant risk of committing opportunistic sexual penetration without consent offences against females with associated additional violence. In these circumstances, I am not satisfied that the community will be adequately protected if the respondent is released on a supervision order containing the conditions that are proposed. Releasing the respondent on a supervision order on the conditions proposed will not, in my view, reduce the risk of him committing further serious offences, specifically further serious sexual offences, to a level that is reasonably acceptable and that will ensure the adequate protection of the community.
Clearly, my conclusion expressed in the previous paragraph is consistent with the opinion expressed by Dr Wojnarowska that the respondent’s high risk of committing sexual offences cannot be adequately managed in the community. However, and as is apparent from what I have said, Dr Worjnarowska’s expressed opinion on this ultimate issue is not something that I have relied upon in coming to my conclusion.
I state to avoid any doubt on the point, that even if suitable supported accommodation had been available to the respondent I would still, for the reasons enunciated in [198] - [200] above, have concluded that the community would not be adequately protected by releasing the respondent on a supervision order.
Decision
For the reasons I have stated I have decided, pursuant to s 68(1)(b)(i) of the Act, that the respondent's continuing detention order must be affirmed.
Recommendations for ongoing treatment and management
I turn finally to making some remarks relating to the respondent's ongoing management and treatment.
As is apparent from what I have already said, the respondent's most significant risk factor is his illicit substance use problem. Indeed, in my opinion until the respondent can demonstrate some significant gains in addressing his illicit substance use problem it will, given his past poor performance on supervision orders, be difficult for him to discharge his burden of proving that he is capable of complying with the standard conditions of a supervision order. This being the case, it is in my view imperative, as recommended by Dr Wojnarowska and Dr Galloghly, that the respondent be afforded the opportunity to participate in an intensive substance use program. The most preferable option in this regard would appear to be the newly developed Solid Steps Program which, I was told from the bar table, the respondent has applied to be accepted into. The possibility of the respondent being provided with pharmacotherapy should also be explored. In short, everything that can reasonably be done to afford to the respondent the opportunity to address in a substantive way his illicit substance use problem should be done. It will then be a matter for the respondent to take up the opportunities provided to him.
The respondent should also continue to be offered individual psychological counselling so that he can continue to attempt to address the deficits in his emotional functioning and management as identified by Dr Wojnarowska and Dr Galloghly.
The respondent should continue being prescribed medication directed at controlling his libido.
Obviously, prior to the respondent's next review date all efforts should be made to ensure the availability of suitable supported accommodation for him so that if the court concludes that he is otherwise suitable for release he will be able to be released. All possible accommodation options should be reviewed. The inquiry should be pursued early to avoid the almost inevitable failure of inquiries that are only made in the last month or two before a review.
ANNEXURE 1
STANDARD CONDITIONS REQUIRED BY THE ACT
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.
Report to and receive visits from a Community Corrections Officer as directed by the court.
Notify a Community Corrections Officer of every change of the person's name, place of residence, or place of employment at least 2 days before the change happens.
Be under the supervision of a Community Corrections Officer, which includes, comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32).
Not leave, or stay out of, the State of Western Australia without the permission of a Community Corrections Officer.
Not commit a serious offence during the period of the Order.
Be subject to electronic monitoring under section 31.
ADDITIONAL CONDITIONS
The following conditions incorporate the above standard conditions and are suggested to strengthen and add to the standard conditions required by the Act for the more effective management of the offender in the community.
Residence
Take up residence at [address to be confirmed] and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer (CCO) assigned to you.
Reporting to a CCO and supervision by a CCO
Report to a CCO at your approved release address within normal business hours on the day of release from custody under this order.
Be under the supervision of a CCO, and comply with the lawful orders and directions of a CCO.
Report to, and receive visits from, a CCO at times and at places as directed by the CCO, such arrangements having regard to any employment commitments of you.
Not commence or change voluntary, paid employment, or education without the prior approval of the CCO.
Attendance at programs or treatment
Consult and engage with any psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO.
Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious re-offending, as directed by a CCO.
Reporting to WA Police
Report to the Officer‑in‑Charge of the Sex Offender Management Squad at the Hatch Building, 144 Stirling Street, Perth, WA, 6000 within 48 hours of your release from custody, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer‑in‑Charge of the Sex Offender Management Squad or his/her delegate.
Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004.
If requested, permit Police Officers to enter and search your residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this order and allow the seizure of any such items that the Police Officer believes to contravene the conditions of the order.
Remain at your premises and/or vehicle when Police Officers conduct a search under the High Risk Serious Offenders Act 2020.
When requested, advise Police of the names of all of your internet service providers, all mobile or landline telephone services used by you and all internet user names or identities used by you.
Disclosure/exchange of information
Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information.
Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history.
Restrictions on contact with victims
Have no contact, directly or indirectly, with the victims of your sexual offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim‑Offender Mediation Unit of the Department of Justice.
Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times.
Report to the CCO and WA Police any direct or indirect contact with the victims of your sexual offending on the next occasion you report to that person or agency.
Criminal conduct
Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments.
Not commit an offence under s 202, s 203, s 204 Criminal Code 1913 (WA).
Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996.
Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014 and your use is in accordance with the instructions of the provider.
Curfew
Be subject to a curfew, pursuant to section 32 of the High Risk Serious Offenders Act 2020, such that you are to remain at and not leave your approved address as directed by a CCO from time to time.
When subject to a curfew under this order, present yourself for inspection at the front door or curtilage of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew.
When subject to a curfew under this order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew.
Medications/mental health
Undergo medical treatment, including antidepressant medication or anti-libidinal treatment, as directed by the CCO in consultation with a medical practitioner or medical practitioners.
Comply fully with any treatment prescribed pursuant to condition 32 and all testing to monitor your compliance with medical treatment and anti-libidinal treatment as directed by a CCO.
Permit any medical practitioner or medical practitioners to advise the CCO immediately if they become aware or suspect that you have, or intend to cease, undergoing pharmaceutical anti-libidinal and or antidepressant medication contrary to the advice of the medical practitioner or medical practitioners, or you have apparently ceased to consult with that medical practitioner or medical practitioners on such treatment.
Prevention of high risk situations
Not enter any residential address in which a female resides or is known to reside, unless authorised in advance by a CCO.
Not permit any female to enter any residential address in which you reside, unless the identity of such person is approved in advance by a CCO.
Report any unsolicited interaction with females at your residential address to the CCO and the Sex Offender Management Squad at your next scheduled appointment.
With the exception of public transport, not enter in or on any vehicle with any female or where a female is present (whether that vehicle is under your control or not), unless the identity of such person is approved in advance by a CCO.
Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO.
Not to possess or purchase or consume or use alcohol.
Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place.
To provide a valid sample for testing pursuant to condition 41.
Not go or remain at any licensed premises unless permitted or required to do so for the following reasons:
(a)For the purpose of averting or minimising a serious risk of death or injury to yourself or another person;
(b)For a purpose, and for a duration, approved in advance by a CCO;
(c)On the order of a CCO or Police Officer.
Not remain in the presence of females who you know to be affected by alcohol, or reasonably ought to know to be affected by alcohol, unless the identity of such person is approved in advance by the CCO.
Not remain in the presence of any person who you know to be affected by illicit substances, or reasonably ought to know to be affected by illicit substances, unless the identity of such person is approved in advance by the CCO.
Not remain in any place where prohibited drugs are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place. If you are the sole occupant of the address, request those consuming prohibited drugs leave the address, if they refuse or otherwise do not leave, contact Police and request they remove the patrons.
Report at your next contact with your CCO, the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship by you with any person.
As directed by a CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence a friendship, domestic, romantic, sexual or otherwise intimate relationship, as directed by a CCO or Police Officer, which disclosure can be confirmed by the CCO or a Police Officer.
Advise a CCO of every computer, telecommunication and/or electronic device capable of storing digital data or information, possessed or used by you, whether or not it is capable of being connected to the internet, and the location of that device.
Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 49, without prior approval of the CCO.
Enable device locking or password access of your computer, telecommunication and/or electronic devices; not provide or disclose such passwords or other means used to access any computer, telecommunication and/or electronic device referred to in condition 49, or any online accounts, to any person other than a CCO or Police Officer.
Upon request, permit a CCO or WA Police at any location nominated by them, to access any computer, telecommunication and/or device capable of storing digital data, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device.
Should any other entity be required to access a device for instances such as technical advice, approval must be sought in advance from a CCO.
Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunication and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick2 OCTOBER 2020
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