The State of Western Australia v Narrier [No 7] - [2022] WASC 342

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- NARRIER [No 7] [2022] WASC 342
CORAM:   DERRICK J
HEARD:   5 OCTOBER 2022
DELIVERED          :   17 OCTOBER 2022
FILE NO/S:   SO 13 of 2008
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
PATRICK LENNARD NARRIER
Respondent

Catchwords:

Dangerous sexual offender - High risk serious offender- Periodic 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- Whether respondent remains a high risk serious offender - Whether continuing detention order should be affirmed or rescinded - Whether community would be adequately protected if respondent released on a supervision order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	:	D S McDonnell
Respondent	:	A G Elliott

Solicitors:

Applicant	:	Director of Public Prosecutions (WA)
Respondent	:	Anthony 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 for Western Australia v Narrier [No 3] [2014] WASC 131
Director of Public Prosecutions for Western Australia v Narrier [No 4] [2017] WASC 306
Director of Public Prosecutions for Western Australia v Williams [2007] WASCA 206; (2007) 35 WAR 297
Garlett v The State of Western Australia [2022] HCA 30
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 ACJ [2021] WASC 219
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 Narrier [No 6] [2020] WASC 349
The State of Western Australia v Newland [2018] WASC 344
The State of Western Australia v Patrick [No 4] [2020] WASC 48
The State of Western Australia v Patrick [No 5] [2022] WASC 61
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 25 March 2022, the State of Western Australia (State) applied, pursuant to s 64 of the High Risk Serious Offenders Act 2020 (WA) (Act), for the detention of Patrick Lennard Narrier (respondent) under a continuing detention order to be reviewed as soon as practicable after 3 October 2022 (application).
The hearing of the application took place before me on 5 October 2022.
For the reasons set out below, I have decided that the respondent remains a high risk serious offender and that the continuing detention order must be affirmed.

Background to the application

Proceedings under the Dangerous Sexual Offenders Act 2006 (WA)[1]

[1] This section of my reasons reproduces what I wrote in The State of Western Australia v Narrier [No 6] [2020] WASC 349.

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 now repealed Dangerous Sexual Offenders Act 2006 (WA) (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).[2]
[2] 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.[3]
[3] 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.[4]
[4] 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.
On 24 May 2012 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.[5]
[5] 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 State 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 State 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.[6] In arriving at this conclusion Jenkins J said the following:[7]
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].
[6] Director of Public Prosecutions for Western Australia v Narrier [No 3].
[7] 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.[8] Tottle J expressed his reasons for arriving at his conclusion as follows:[9]
[8] Director of Public Prosecutions for Western Australia v Narrier [No 4].
[9] 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.[10]
[10] 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).[11] The amended second supervision order, although it was signed by the respondent on 26 April 2018,[12] was expressed to have effect 'for a period of seven years from 22 November 2017'.[13]
[11] The State of Western Australia v Narrier [No 5] [41].
[12] The State of Western Australia v Narrier [No 5] [41].
[13] 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.[14] 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.[15] 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.[16]
[14] The State of Western Australia v Narrier [No 5] [44].
[15] The State of Western Australia v Narrier [No 5] [44].
[16] The State of Western Australia v Narrier [No 5] [44].
On 10 May 2018 the respondent was arrested and taken into custody.[17]
[17] The State of Western Australia v Narrier [No 5] [45].
Also on 10 May 2018 the State 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 (CDO).[18] Jenkins J published her written reasons for decision on 13 February 2019. In her written reasons her Honour said the following:[19]
[18] The State of Western Australia v Narrier [No 5] [3].
[19] 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.[20] Her Honour backdated the commencement date of the sentence to 10 May 2018.[21] Her Honour also made the respondent eligible for parole.[22]

The coming into operation of the Act

[20]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, and 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.

[21]The State of Western Australia v Narrier [No 5] [4]; Director of Public Prosecutions (WA) v Narrier [35].

[22]The State of Western Australia v Narrier [No 5] [4]; Director of Public Prosecutions (WA) v Narrier [35].

On 9 July 2020 pt 1 of the Act came into operation.[23] On 26 August 2020 other parts of the Act relevant to the application came into operation (commencement day).[24] Upon the coming into operation of these other parts of the Act the DSO Act was repealed.[25]
[23] Act, s 2(1)(a).
[24] The term 'commencement day' is defined for the purposes of the provisions contained in pt 10 of the Act (s 122 - 125) to mean 'the day on which the 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).
[25] Act, s 123.
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. Accordingly, after 26 August 2020 the CDO continued in effect and was taken to have been made under the Act, and any application for the review of the CDO was required to be made pursuant to the provisions of the Act and be determined pursuant to the provisions of the Act.[26]

The first review of the CDO

[26] I will say more about the relevant provisions of the Act in due course. At this point it suffices to say that the provisions of the Act relating to reviews do not operate significantly differently to the way in which the corresponding provisions of the DSO Act operated.

On 29 September 2020 I conducted the first review of the CDO pursuant to s 64 and s 66 of the Act. The review was conducted under the provisions of the Act given the repeal of the DSO Act and s 125 of the Act.
On 2 October 2020 I affirmed the CDO pursuant to s 68(1)(b)(i) of the Act.[27] In arriving at my decision to affirm the CDO I said the following:[28]
[27] The State of Western Australia v Narrier[No 6].
[28] The State of Western Australia v Narrier[No 6] [186] - [193], [195] - [196] and [198] - [202].
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.
…
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.
…
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 Wojnarowska'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.
In relation to the respondent's ongoing management and treatment needs I said the following:[29]
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.
[29] The State of Western Australia v Narrier [No 6] [205] - [208].

Evidence on the application

At the hearing of the application the State tendered without objection a Book of Materials comprising five volumes.[30] Volumes 1 – 4 are each dated 5 August 2022. Volume 5 is dated 14 September 2022.
[30] Exhibit 1.
The Book of Materials contains a large variety of materials relating to the respondent including his criminal record, documents relating to his prior offences and reports. Volumes 4 and 5 contain the following reports prepared in relation to the respondent specifically for the purposes of the application:
1.A Pathways Programme Completion Report dated 4 May 2021;
2.A Treatment Progress Report prepared by Dr Lynley Poli, Senior Forensic Psychologist with the Department of Justice's (Department) Forensic Psychological Intervention Team (FPIT) (formerly Forensic Psychological Services) dated 20 July 2022;
3.A psychiatric report prepared by Dr Gosia Wojnarowska, Forensic Psychiatrist, dated 22 August 2022;[31]
4.A High Risk Serious Offender Treatment Progress Report prepared by Ms Catherine Korda, Senior Forensic Psychologist with the Forensic Psychological Assessment Team, dated 12 September 2022; and
5.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 30 August 2022.
[31] Dr Wojnarowska is a 'qualified expert' as defined in s 3 of the Act. Her report was prepared and obtained pursuant to s 67(1) of the Act in accordance with s 74 of the Act.
At the hearing of the application the State also tendered without objection the following documents:
1.Two Intake Assessment Reports dated 19 January 2021[32] and 2 September 2021[33] relating to the respondent's applications for admission into the Solid Steps Programme; and
2.The Mallee Rehabilitation Centre Eligibility Criteria dated 28 October 2020.[34]
[32] Exhibit 3.
[33] Exhibit 4.
[34] Exhibit 2.
At the hearing of the application Dr Wojnarowska, Ms Korda and Ms Cashmore were called by the State to give supplementary oral evidence.
The respondent did not adduce any evidence on the application.

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,[35] 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.
[35] The State of Western Australia v ZSJ [2020] WASC 330 [30] ‑ [31].
I generally agree with Fiannaca J's observations. In my opinion and having full regard to the recent decision of the High Court in Garlett v The State of Western Australia[36] which addressed the constitutional validity of aspects of the Act, much of the case law decided under the DSO Act in relation to applications for review of continuing detention 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 will include cases that have been concerned with proceedings under the DSO Act.
[36] Garlett v The State of Western Australia [2022] HCA 30.
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.[37]
[37] 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 for the making by the State of an application for an offender's detention under a continuing detention order to be reviewed.
Section 66 of the Act provides for the hearing by the court of an application by the State for the review of an offender's detention under a continuing detention order.
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.[38] 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.
[38] 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.

With respect to the term 'community' used in s 7(1), s 4 of the Act provides that 'a reference in this Act to the community includes any community and is not limited to the community of Western Australia or Australia'. Accordingly, in deciding if an offender is a 'high risk serious offender' consideration must, if required by the circumstances of the particular case, be given to whether it is necessary to make a restriction order to ensure adequate protection of persons outside of Western Australia and/or Australia against an unacceptable risk that the offender will commit a serious offence against those persons.[39]
[39] Garlett v The State of Western Australia [100] - [101], [225].
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'. Section 5(2) of the Act provides that an offence is a 'serious offence' if it was an offence under a written law that has been repealed and the offender's acts or omissions that constituted the offence under the repealed provision would constitute an offence under s 5(1). Section 5(3) of the Act provides that an offence is a 'serious offence' if it is an 'attempt…to commit an offence that is a serious offence' under s 5(1). 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.[40]
[40] The State of Western Australia v West [No 6] [2019] WASC 427 [21]; The State of Western Australia v ZSJ [44].
If the court finds that an offender 'remains a high risk serious offender' it is not invested with a residual discretion to decline to make a restriction order.[41] In these circumstances the question for the court is whether a continuing detention order or a supervision order should be made.[42]
[41] Garlett v The State of Western Australia [72].
[42] Act, s 68(1)(b).
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.[43]
[43] 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.[44] 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.
[44] The State of Western Australia v West [No 6] [24]; The State of Western Australia v ZSJ [47].
Whether or not a risk that the offender will commit a 'serious offence' is 'unacceptable' is a question that requires the court's judgment as to the likelihood of the offender committing the 'serious offence' and the nature and extent of the harm that will be caused if the offender commits the 'serious offence'.[45] Further, whether a restriction order is 'necessary' to ensure the adequate protection of the community against the 'unacceptable risk' requires consideration of what would otherwise be the offender's entitlement to be at liberty, an entitlement not lightly to be denied.[46] Accordingly, the court is required to perform an evaluative exercise by considering 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.[47] In addition, although the requirement of an evaluation under s 7(1) depends upon the offender having been convicted of a 'serious offence', s 7(1) and s 68 do not envisage the possibility that a finding that an offender remains a high risk serious offender might be made to prevent the commission of a 'serious offence', whether of the same kind or another kind, unless the risk of further offending involves a real threat of harm to the community.[48]
[45] 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]; Garlett v The State of Western Australia [73], [226].
[46] Garlett v The State of Western Australia [73], [227].
[47] 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]; Garlett v The State of Western Australia [73], [226] - [227], [279]
[48] Garlett v The State of Western Australia [84].
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' indicates that a qualitative assessment is required. It cannot be assumed that the most assured preventative action is detention and that therefore the protection of the community will always favour such an order.[49] 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:[50]
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.
[49] Director of Public Prosecutions for Western Australia 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]; Garlett v The State of Western Australia [106].
[50] 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.[51]
[51] The State of Western Australia v Latimer [2006] WASC 235 [24]; The State of Western Australia v Patrick [No 5] [2022] WASC 61 [56]; Garlett v The State of Western Australia [85], [229] - [230].
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. The matters are as follows:
(a)any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section;
(b)any other medical, psychiatric, psychological, or other assessment relating to the offender;
(c)information indicating whether or not the offender has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by the offender;
(e)any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;
(f)whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;
(g)the offender's antecedents and criminal record;
(h)the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;
(i)the need to protect members of the community from that risk;
(j)any other relevant matter.
Although s 7(3)(g) provides that a court must have regard to the offender's criminal record in deciding whether the person is a high risk serious offender, the mere fact that a person has committed previous offences does not necessarily mean that there is an unacceptable risk that they will commit a serious offence in the future if they are not subject to a continuing detention order or a supervision order. The relevance of a prior criminal record depends on the nature of the offences committed, the number of them and the period of time over which they have been committed. Nonetheless, past behaviour is often a good indicator of future conduct.
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 they will substantially comply with the standard conditions set out in s 30(2) of the Act before the court can make a supervision order in relation to them.[52]
[52] Garlett v The State of Western Australia [102], [231].

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 will ensure the adequate protection of the community from the unacceptable risk of the respondent committing a serious offence.[53] Further, in determining if it is satisfied that the offender will substantially comply with each standard condition of the supervision order, the court must have regard not only to the constraints that will be imposed upon the offender by the other standard conditions, but also to the constraints that will be imposed upon the offender by all the other 'non-standard' conditions of the supervision order.[54]
[53] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52]; The State of Western Australia v West [No 6] [29]; The State of Western Australia v ZSJ [56] ‑ [58]; The State of Western Australia v Patrick [No 4] [2020] WASC 48 [109]-[111].
[54] The State of Western Australia v ACJ [2021] WASC 219 [416]; Garlett v The State of Western Australia [103] - [104], [233].

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][55] 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.
[55] 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:[56]
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.
[56] Director of Public Prosecutions (WA) v GTR [62].

Matters specified in s 7(3) of the Act

As I have indicated, in deciding if the respondent remains a high risk serious offender I must have regard to the matters specified in s 7(3) of the Act. I therefore turn to addressing the matters specified in s 7(3) of the Act.

The respondent's personal circumstances and antecedents - s 7(3)(g)[57]

[57] This section of my reasons substantially reproduces what I wrote in The State of Western Australia v Narrier [No 6].

The respondent is 49 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's main sources of support in the community are his partner (MB) and his two sisters. The respondent intends living with his partner if he is released into the community.
The respondent has a 24‑year‑old daughter and an 8-year-old granddaughter. In the past the respondent did not have contact with his daughter or granddaughter. However, in more recent times he has been in ongoing contact with both of them. He wants to re-establish a relationship with his daughter and granddaughter.
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 hyperlipidaemia, 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's history of serious offending - s 7(3)(g) [58]

[58] This section of my reasons substantially reproduces what I wrote in The State of Western Australia v Narrier [No 6].

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 sexual offending and other serious offending has been set out in a number of decisions of this Court.[59] 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]:[60]
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.
[59] The State of Western Australia v PLN [No 2] [2009] WASC 21; Director of Public Prosecutions for Western Australia v Narrier [No 3]; Director of Public Prosecutions for Western Australia v Narrier [No 4].
[60] Director of Public Prosecutions for Western Australia v Narrier [No 4] [5] ‑ [9].

With respect to Tottle J's description of the offences committed by the respondent on 24 March 1990 two points should be made. First, the respondent was convicted of an offence of deprivation of liberty in addition to the offences expressly referred to by his Honour. Second, the respondent was convicted of four aggravated sexual assault offences given that he digitally penetrated the victim's anus twice and digitally penetrated the victim's vagina twice.
The respondent's attempted sexual penetration offence, deprivation of liberty offence, sexual penetration offences and armed robbery offence committed on 24 March 1990, his child stealing offence committed on 5 February 1993 and his sexual penetration offence committed on the night of 16 and 17 January 1998 are all 'serious offences' within the meaning of the Act.[61]
[61] Act, s 5(1), 5(2) and s 5(3).
It is apparent from what I have said that the last time that the respondent committed a 'serious offence' of a sexual nature was in 1998, although the previously referred to burglary offence which the respondent committed in April 2011 in breach of the first supervision order did involve a threat of sexual violence which, as Jenkins J found, the respondent intended to carry out albeit for a short period of time.

Efforts by offender to address causes of offending behaviour including participation in rehabilitation programmes - s 7(3)(e) and s 7(3)(f)[62]

Psychological intervention - prior to 10 May 2018

[62] Treatment Progress Report prepared by Ms Korda, exhibit 1, vol 5, 1917 - 1919.

Prior to and during his most recent period in the community the respondent was engaged in individual therapy with Forensic Psychological Services (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.

Programmatic intervention - prior to 10 May 2018

Prior to his most recent period in the community the respondent completed the following programs:
1.Skills Training for Aggression Control Programme (1994, 1995 and 1998);
2.Reasoning and Rehabilitation Programme (2005);
3.Intensive Sex Offending Treatment Programme (2006);
4.Pathways Program (2013); and
5.Sex Offending Medium Program (2016).

Medium Intensity (Violence) Programme - September 2019[63]

[63] Programme Completion Report, exhibit 1, vol 5, 1938.

During the period 12 September 2019 to 24 October 2019 the respondent participated in a Medium Intensity (Violence) Programme. He participated in the programme because it was recommended by a general treatment assessment undertaken on 17 December 2018.
The respondent attended 22 out of the 53 programme sessions. He left the programme before completion at his own request. His reported reason for leaving the programme was that he was feeling under threat from other prisoners in the unit in which the programme was being run.
The programme facilitators' summary of the respondent's performance while on the programme 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. However, the facilitators formed the view that due to the respondent's non-completion of the programme his treatment gains had been limited. The facilitators suggested that the respondent would benefit from recommencing the programme at a later date at which time he could develop a risk management plan.

Psychological intervention - June 2019 - 26 June 2020

After the respondent was returned to custody following his contraventions of the amended second supervision order, responsibility for the provision of counselling to him was transferred to FPS psychologist Ms Amanda Thompson
During the period 7 June 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.

Pathways Programme - 2021[64]

[64] Pathways Programme Completion Report, exhibit 1, vol 4, 1870 - 1876.

During the period 25 January 2021 to 1 April 2021 the respondent completed the Pathways Programme. The Pathways Programme is a 100-hour structured programme which provides treatment to individuals who have a history of offending behaviour and substance use problems. It is an intensive, cognitive behavioural skills based programme and attends to both personal circumstances (events that lead to criminal conduct and substance use) and intrapersonal processes (thoughts, emotions, beliefs and attitudes) that lead to criminal conduct and substance use.
The respondent's treatment needs were identified as poor compliance with supervision conditions, a long term history of alcohol and other drug (AOD) use, aggressive and violent behaviour within relationships and anger management.
On occasions during the programme the respondent appeared to engage in positive impression management and his participation and involvement in the programme appeared to be superficial. However, the respondent responded positively to feedback within the group and monitored his behaviour by not talking over the top of others.
The programme facilitators identified the following treatment gains as having been made by the respondent during the programme:
1.The development of insight into his relapse into illicit substance use in the community;
2.The development of an understanding of factors that could increase the likelihood of relapse in the future;
3.Some responsibility taking regarding his previous violence towards an intimate partner, although he appeared to shift some of the responsibility for the toxic nature of his past relationship to his ex-partner;
4.The development of insight into factors and core beliefs that had contributed to his past aggression and violence;
5.The identification of strategies to prevent violence and aggression in the future (taking a deep breath, going for a walk, thinking of consequences, having empathy and engaging in 'respectful talks without swearing');
6.An increased awareness of underlying emotions that contribute to anger;
7.The development of helpful attitudes related to anger; and
8.The identification of various strategies for managing anger.
The programme facilitators identified concerns in relation to the respondent's difficulties in identifying the reasons for his substance use and the negative outcomes associated with his substance use.
The facilitators recommended that the respondent would likely benefit from further substance use intervention to 'gain better insight into his substance use issue and consolidate learning from Pathways'. In addition, the facilitators recommended an additional treatment to 'prevent aggressive and violent behaviour within intimate relationships' and to support the respondent's use of anger management strategies.
Based on the respondent's self-reporting and their observations during the programme, the facilitators made the following recommendations in relation to managing the respondent's risk of re-offending:
1.Regular urinalysis;
2.Continuing support from a psychologist;
3.Engage in further AOD treatment 'to gain better insight into his AOD use issues and consolidate learnings from completing Pathways';
4.Engaging in further treatment to prevent aggressive and violent behaviour with an intimate relationship;
5.Engaging in further treatment to apply anger management strategies; and
6.Engaging with United Care West to gain accommodation support.
It appeared to the programme facilitators that the respondent understood the long-term consequences for him of not complying with the conditions of a supervision order, specifically ongoing incarceration. However, the facilitators noted that the respondent's ability to change his behaviour in relation to compliance with conditions of a supervision order remains untested and that it is therefore difficult to determine how he will respond to the conditions of a supervision order.

Psychological intervention - 2020 - 2022[65]

[65] Treatment Progress Report prepared by Dr Poli, exhibit 1, vol 4, 1877.

The respondent was referred to Dr Poli for individual psychological intervention following the departure of Ms Thompson from the Department and the outcome of the first review of the CDO.
During the period 14 October 2020 – 10 June 2022 Dr Poli saw the respondent on seven occasions. Several sessions were cancelled due to COVID-19 related issues. Further, other sessions were disrupted due to the respondent's unavailability as a result of his temporary placement at Greenough Regional Prison (to attend his brother's funeral), his admission to hospital after suffering a broken jaw in January 2022, his placement in the infirmary and ongoing health issues from January - March 2022, and his inability to receive visits in March and June 2022 because he was under investigation and placed in punishment (14 days confinement). Regular and consistent contact with the respondent was also impacted by Dr Poli being employed on a part-time basis and being required to attend to and prioritise other work demands.
During Dr Poli's initial sessions with the respondent he presented as friendly, confident and assertive and was easy to engage. He impressed as candid and open in his disclosures. He expressed enthusiasm and motivation regarding intervention and he actively participated in treatment planning.
Dr Poli developed treatment goals in conjunction with the respondent to address the following four primary areas:
1.Substance use - participate in Solid Steps Programme (inpatient substance use programme); engage in pharmacotherapy; repeat the Pathways Programme with optional counselling to supplement learning;
2.Emotion management - explore and develop awareness of physiological experience and triggers to emotions (primarily anger, frustration and stress) and develop and practise emotional regulation and coping skills;
3.Interpersonal relations - explore previous and current relationships to develop awareness of factors contributing to difficulties and conflict; develop skills in communication, perspective taking and conflict resolution; and
4.Response to supervision - explore previous experiences of supervision to identify factors contributing to difficulties; address antisocial attitudes; develop alternative responses and approaches; and utilise coping skills and support.
Although the respondent initially participated in activities and tasks presented during sessions with effort and interest, it was evident to Dr Poli that he was focussed on gaining a placement within the Solid Steps Programme at Casuarina Prison. In line with this focus, Dr Poli observed the respondent to demonstrate limited motivation and interest in addressing other treatment goals. Dr Poli did not find this surprising given the amount of intervention that the respondent had previously participated in and the likelihood that he was nearing 'saturation point'. Given the respondent's limited motivation to engage in individual intervention, Dr Poli focussed her efforts on supporting the respondent's placement in the Solid Steps Programme, maintaining oversight of his other treatment needs and facilitating his inclusion in appropriate intervention to address these other treatment needs where possible.
The respondent reported an eagerness to engage in pharmacotherapy as an adjunct treatment. He stated that he believed this would assist him to abstain from using substances as he expected to experience negative side effects if he used while receiving treatment. He also advised of his willingness to repeat the Pathways Programme, stating that he learned very little from his previous participation in the programme due to his low motivation and regular substance use at the time.
In January 2021 Dr Poli explored the possibility of the respondent engaging in pharmacotherapy as an adjunct to his participation in an inpatient residential programme with a Nurse Unit Manager at Casuarina Prison. The Nurse Unit Manager advised Dr Poli that there was no suitable pharmacotherapy option for the respondent as his drugs of choice were alcohol, cannabis and methylamphetamine. The Nurse Unit Manager expressed the view to Dr Poli that the Solid Steps Programme was the most appropriate treatment to address the respondent's methylamphetamine and cannabis use.
The respondent expressed his disappointment to Dr Poli when advised that pharmacotherapy was not an option for him. However, he maintained enthusiasm regarding his upcoming participation in the Pathways Programme.
During Dr Poli's discussions with the respondent about his abstinence from substances in the preceding months, the respondent was unable to identify any strategies that assisted him to achieve this goal with the exception of his motivation to participate in the Solid Steps Programme. Dr Poli reviewed with the respondent a range of skills (for example, consequential thinking, impulsivity and assertiveness) which he was encouraged to utilise.
As time progressed Dr Poli observed the respondent's motivation to wane, particularly after he was, despite the best and significant efforts of Dr Poli to have him accepted him into the Solid Steps Programme, deemed unsuitable for the programme for the second time in September 2021. The respondent also noted on numerous occasions that his environment was not conducive to abstaining from substances and that he found it difficult to resist using them when they were so readily available.
According to Dr Poli, the respondent's behaviour deteriorated in March 2021 when he was charged with using insulting and threatening language. In April 2021 he was charged with possessing and using illicit drugs (buprenorphine). The respondent disclosed to Dr Poli that at the time of committing these offences he felt angry, frustrated and upset because he had discovered that he had not been accepted into the Solid Steps Programme and that one of his peers had been accepted into the programme. The respondent told Dr Poli that he considered himself to be at 'rock bottom' after he used illicit substances, that he regretted his actions and that he was motivated to abstain from further use.
During exploration of his substance use the respondent identified anti-social peers, the availability of substances, physical urges and cravings, boredom, unemployment and lack of self-control as contributing factors to his use. The respondent was unable to identify any skills or strategies that assisted him to abstain from substances in the past. He noted that during the periods of abstinence in custody his supply had been 'cut off'. He admitted that he had attempted to obtain substances in prison since counselling had commenced but stated that he had been refused by his supplier.
The respondent denied any link between his emotional state and substance use. He stated that he did not believe he used substances as a coping mechanism. He insisted that he had learned to manage his emotions.
During Dr Poli's sessions with the respondent, little progress was made in the treatment area of emotional management given the focus and time spent on the respondent's substance use. It was evident to Dr Poli that the respondent continues to struggle to regulate his emotions at times, particularly when faced with disappointment or frustration. It is at these times that he has resorted to using substances or behaving aggressively.
The interpersonal relationships treatment area received very little attention during Dr Poli's sessions with the respondent due to the focus on his substance use.
The response to supervision treatment area was not explored by Dr Poli during her sessions with the respondent.
In Dr Poli's view the respondent's relapses into substance use and his use of aggressive behaviour highlight his ongoing needs in these areas. In Dr Poli's view the respondent also has ongoing needs with respect to his interpersonal relationships and responses to supervision.
In Dr Poli's view the respondent's primary treatment need continues to be his substance use. It is Dr Poli's position that, in line with previous recommendations, the respondent's substance use would best be addressed by participation in a residential, inpatient substance use programme, such as Solid Steps. Dr Poli understands that such an option is not available in the community as these programmes do not accept individuals with a sexual offending history or who have been deemed high risk.

On 25 July 2022 the respondent was subjected to urinalysis. The results were negative for illicit substances.

Overall assessment of the evidence

Dr Wojnarowska's evidence was not the subject of any substantial challenge by the respondent. To the contrary, ultimately the respondent placed heavy reliance on Dr Wojnarowska's evidence.
Dr Wojnarowska explained the reasons for arriving at the opinions that she expressed. Her reasoning process was fully exposed.
I have already stated that I accept Dr Wojnarowska's evidence as to the respondent's risk of committing further serious offences if he is not subject to a restriction order. For the reasons specified in the preceding paragraph I also, subject to one caveat, accept the remainder of Dr Wojnarowksa's evidence. The caveat relates to Dr Wojnarowska's evidence that in her opinion the respondent's high risk of committing 'serious' sexual offences can be managed in the community under a supervision order containing the conditions proposed by Ms Cashmore. Although Dr Wojnarowska's expert opinion evidence on this point is obviously relevant to my determination of the question whether, in the event that I find 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 my responsibility alone to determine this question on the whole of the evidence.[145]
[145] Director of Public Prosecutions (WA) v GTR [62].
I accept the evidence given by Ms Korda and Ms Cashmore none of which was the subject of any substantial challenge by the respondent.

Analysis and decision

The relevant questions

Given the terms of s 68(1) of the Act, the questions that I must answer in order to determine the outcome of the application 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 parties' submissions - summary

The State submits that I should find that the respondent remains a high risk serious offender. The State submits that the respondent has failed to discharge his burden of proving on the balance of probabilities that he will substantially comply with the standard conditions of a supervision order, 'primarily' the standard condition specified in s 30(2)(d) (that he be under the supervision of a CCO and comply with any reasonable direction of the CCO) and 'to a lesser degree' the standard condition specified in s 30(2)(f) (that he not commit a serious offence during the period of the order).[146] The State submits that the respondent's circumstances have not, since the first review, changed sufficiently to permit the conclusion that his risk of committing 'serious offences' of a sexual nature has reduced to such an extent that releasing him on a supervision order will ensure adequate protection of the community.[147] The State submits that for these reasons I should affirm the CDO. The State makes this submission despite the opinion evidence given by Dr Wojnarowska that the risk that the respondent will commit a sexual offence amounting to a 'serious offence' can be adequately managed by releasing him on a supervision order containing the conditions proposed by Ms Cashmore.
[146] ts 85, 5 October 2022.
[147] ts 85 - 86 and 135 - 136, 5 October 2022.

The respondent does not attempt to argue that I should find that he is no longer a high risk serious offender.[148] Of course, the fact that the respondent takes this position does not absolve me from the responsibility of determining the question for myself on the basis of the evidence before me.
[148] ts 135, 5 October 2022.
The respondent does, however, argue against the continuing detention order being affirmed. He submits that he has discharged his burden of proving that he will substantially comply with the standard conditions of a supervision order.[149] He submits that I should, on the evidence, find that there has been a change in his circumstances since the first review sufficient to justify the conclusion that the risk that he presents to the community can be adequately managed by releasing him on a supervision order containing the conditions proposed by Ms Cashmore.[150] He therefore submits releasing him on a supervision order will ensure adequate protection of the community.

Does the respondent remain a high risk serious offender?

[149] ts 140, 5 October 2022.

[150] ts 140 and 142, 5 October 2022.

I have already stated my finding that the respondent is at high risk of committing further sexual offences amounting to 'serious offences' (non-consensual sexual penetration offences of females) if he is not subject to a continuing detention order or a supervision order. On the basis of this finding and having regard to all other matters specified in s 7(3) of the Act to which I have referred as well as to the fact that the respondent has already been punished for the offences he has committed, 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 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 be detained pursuant to a continuing detention order, or whether he should be released into the community pursuant to a supervision order. In determining this question it is, I think, important to bear in mind the following observations of the plurality in Garlett v The State of Western Australia as to the purpose of the Act (citations omitted):[151]
The purpose of a legislative regime, such as the DPSO Act or the HRSO Act, is discernibly distinct from the imposition of retribution or deterrence pursued by the criminal law. To the extent that detention or supervised release is part of the legislative regime, the character of the curtailment of the liberty of the individual offender under the regime can be seen to be protective rather than punitive because any curtailment of liberty must be supported by the risk evaluation contemplated by s 7 of the HRSO Act. In that evaluation, considerations of retribution and deterrence, central to sentencing by way of punishment under the common law, have no part to play. In addition, any curtailment of liberty must be no greater than is necessary adequately to protect the community from the demonstrated unacceptable risk of harm to the community…
[151] Garlett v The State of Western Australia [55].
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 does have accommodation available to him in the community, specifically the proposed address. MB, the respondent's partner who will be living with the respondent at the proposed address if he is released on a supervision order, is apparently determined, for health reasons, to remain alcohol and illicit substance free and to prevent any substance use at the proposed address. MB has asserted that she will not hesitate to contact the respondent's CCO if she has any concerns about the respondent's behaviour.
As a result of living at the proposed address the respondent will be able to derive support from MB (and other family members). This was not something that he was able to do when released on the amended second supervision order given that by the terms of that order he was restricted from having contact with MB. In these circumstances, and as Dr Wojnarowska made clear in her evidence, allowing the respondent to live at the proposed address will operate as a protective factor, that is, as a factor that reduces his risk of reoffending.

Since the first review of the CDO the respondent has demonstrated a reasonable degree of insight into the factors that cause him to relapse into alcohol and illicit substance use. He has also demonstrated a reasonable degree of insight into the direct causal link between his use of alcohol and illicit substances and his commission of serious sexual offences.
Since the first review of the CDO the respondent has engaged reasonably well in the psychological counselling that has been made available to him. He has through counselling made some effort to address the identified treatment goal relating to his substance use. He has also demonstrated an eagerness and determination to address his substance use problem by repeatedly applying, unfortunately without success, for acceptance into the Solid Steps Programme.
Since the first review of the CDO the respondent has been able to articulate some strategies for avoiding a return to alcohol and illicit substance use in the community. He has developed some appreciation of the fact that he is going to face stressors in life and that he needs to learn additional coping skills to avoid relapsing into alcohol and illicit substance use.
Since the first review of the CDO the respondent has articulated a determination to abstain from alcohol and drugs and to comply with the conditions of any supervision order including participating in forms of programmatic intervention and individual counselling. He has also expressed a very clear understanding of the consequences for him if fails to do so (specifically ongoing incarceration). It is, of course, the case that the respondent has expressed similar sentiments before. However, the overall impression that I have gained from listening to the evidence of Dr Wojnarowska and Ms Korda is that the respondent's statements of intention are now being expressed in a more mature and insightful way. Certainly, neither Dr Wojnarowska nor Ms Korda expressed any doubts about the genuineness of the respondent's statements of intention.
If the respondent is released on a supervision order he will, at some point after his release although perhaps not immediately given resourcing issues, inevitably be required to engage in specialised counselling and/or programmatic intervention directed at addressing his substance abuse problem and other treatment needs.
Dr Wojnarowska has expressed the opinion that the risk that the respondent poses to the community can be adequately managed by releasing him on a supervision order containing the conditions proposed by Ms Cashmore.
The matters identified in the preceding eight paragraphs weigh in favour of a conclusion that the respondent will, if released, substantially comply with the standard conditions of a supervision order. However, there are, in my view, the following significant countervailing considerations.
First, the respondent has a significant history of committing multiple serious contraventions of supervision orders (including contraventions of standard conditions and contraventions involving the use of alcohol and illicit substances) within a short time of being placed on the orders. He has contravened the orders despite having engaged in counselling and programmatic intervention and despite having expressed his intention to comply with the conditions of the orders.
Second, the respondent's risk of committing sexual offences amounting to 'serious offences' remains unchanged from the time of the first review.[152] He is still at a high risk of committing such offences.
[152] The State of Western Australia v Narrier [No 6] [103] - [112].
Third, the respondent has not since the first review demonstrated any sustained material improvement in his ability to manage his impulsivity and emotions by mature coping mechanisms. To the contrary, even in the highly structured and controlled prison environment in which supports are accessible, he has resorted to illicit substance use and aggressive behaviours to deal with stressors such as being refused entry to the Solid Steps Programme. He has done so despite his participation in psychological counselling and his completion of the Pathways Programme.
Fourth, despite the respondent's engagement in psychological counselling since the first review he has made no, or at best very little, progress in relation to his illicit substance use problem. Again, this is demonstrated by his recourse to illicit substance use in the structured and controlled prison environment.
Fifth, the respondent has significant other outstanding treatments needs in addition to his substance abuse problem. The existence of these outstanding treatment needs, while not in themselves an immovable impediment to the respondent being released on a supervision order, increase the risk that he will, if released, fail to substantially comply with the standard conditions of the order.
Sixth, although Dr Wojnarowska is of the opinion that the respondent's risk of committing a serious sexual offence can be adequately managed in the community, she is also of the opinion that the respondent, despite the proposed supervision order conditions, his motivation to do well on a supervision order, his current prosocial attitudes and his sound therapeutic engagement, will struggle to consistently engage with those responsible for his supervision and monitoring and struggle to maintain abstinence from illicit substances. She is of this opinion given the respondent's demonstrated lack of ability to implement mature coping mechanisms, his impulsivity and his deficits in self-image.
Seventh, despite her opinion that the respondent's risk of committing a serious sexual offence can be adequately managed in the community, in Dr Wojnarowska's opinion it is unrealistic to expect that the respondent will be able to abstain from alcohol and illicit substances in the community, particularly if he comes into contact with persons using such substances.
Eighth, despite her opinion that the respondent's risk of committing a serious sexual offence can be adequately managed in the community, Dr Wojnarowska is also of the opinion that if the respondent is released on the proposed supervision order conditions he will be at 'high risk' of breaching the order, that is, at 'high risk' of breaching the conditions of the order including reporting conditions and conditions prohibiting him from using substances.
Ninth, the link between the respondent's use of alcohol and illicit substances, most specifically methylamphetamine, and his commission of serious sexual offences is direct and significant. Once the respondent commences to use alcohol and illicit substances his imminent risk of committing serious sexual offences increases markedly.
Tenth, the respondent has no realistic plans for employment. Nor does he have any real plans for occupying his time in the community. He lacks direction.
Taking the above 10 matters into account in combination with each other, and despite paying full regard to the opinion expressed by Dr Wojnarowska to the effect that the respondent's risk can be managed in the community, I am simply unable to satisfy myself on the balance of probabilities that if the respondent is released on a supervision order containing the conditions proposed by Ms Cashmore he will, for anything other than a brief period, substantially comply with the standard conditions of the order specified in s 30(2)(b), s 30(2)(d) and s 30(2)(f) of the Act. That is, I am not satisfied that the respondent will comply with the standard conditions specified in s 30(2)(b), s 30(2)(d) and s 30(2)(f) in a manner and to an extent that will ensure the adequate protection of the community from the unacceptable risk of the respondent committing a serious offence. In my view, the difficulties that the respondent will have in consistently engaging with those responsible for his supervision and management and his high risk of resorting to alcohol and illicit substance use despite the proposed supervision order conditions, precludes the conclusion, on the balance of probabilities, that he will substantially comply with the standard conditions of the order.
It necessarily follows that I also am not satisfied that the community can at this point in time be adequately protected by releasing the respondent on a supervision order. Ultimately, in my opinion the risk of the respondent, if he is released into the community and despite the stringent conditions of the proposed supervision order, relapsing quickly into alcohol and/or illicit substance use and consequently disengaging with the conditions of the order and proceeding to commit very serious violent sexual offences is currently simply too high to permit me to conclude that the community can be adequately protected by releasing him on the proposed supervision order (the need to ensure adequate protection of the community being, by virtue of s 68(2) of the Act, the paramount consideration).
In arriving at the above conclusion I have not overlooked the fact that the respondent has not been convicted of using illicit substances while in custody since late last year and that he tested negative for illicit substances in July of this year. However, in my opinion the respondent needs to demonstrate an ability to refrain from relapsing into illicit substance use in the controlled prison environment for a more prolonged period of time if he wishes the court to be able to conclude, with the necessary degree of confidence, that he will, if released into the community on a supervision order, maintain substantial abstinence.
I acknowledge the opinion expressed by Dr Wojnarowska that keeping the respondent in detention on the CDO will not decrease his risk of reoffending and may in fact prove to be a barrier to his rehabilitation prospects and his reintegration into the community. This is of obvious concern. However, the question for me under the Act is not whether keeping the respondent in custody will hinder his prospects of rehabilitation and the prospects of his risk of reoffending reducing, but rather whether as things currently stand the community can be adequately protected from the risk that he presents by releasing him on a supervision order. For the reasons I have given, I am not satisfied that this is the position.

Order

For the reasons I have stated I affirm the CDO pursuant to s 68(1)(b)(i) of the Act.

Recommendations for the next two years

Save for the issue of accommodation, the respondent's situation has changed little from when he came before me for his first review. Despite having engaged in the Pathways Programme and in some individual counselling with Dr Poli, the respondent's most significant risk factor, specifically his use of illicit substances, remains substantially unaddressed. As I said in The State of Western Australia v Narrier [No 6],[153] 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.
[153] The State of Western Australia v Narrier [No 6] [205].
In light of the above it is, to say the least, unfortunate and somewhat surprising that those who have been responsible for assessing the respondent's three applications to participate in the Solid Steps Programme have, despite the recommendations that I made in The State of Western Australia v Narrier [No 6][154] and despite the considerable efforts of Dr Poli, refused to permit the respondent to participate in the programme. The respondent needs to be given the opportunity to participate in an intensive programme directed at addressing his substance use. I therefore again strongly recommend, in accordance with the evidence given before me, that the respondent be afforded the opportunity to participate in the Solid Steps Programme.
[154] The State of Western Australia v Narrier [No 6] [205].

In making the above recommendation I fully appreciate (as I did at the time of the first review) that the respondent may not be the 'ideal' candidate for participation in the Solid Steps Programme and that he may not meet all the criteria that are usually applied in determining the suitability of an applicant to participate in the programme. However, what needs to be borne in mind by those responsible for determining any application by the respondent to participate in the programme is that he has served his sentence for his most recent offences and that he is being detained in custody on a continuing detention order 'for control, care or treatment' (emphasis added).[155]In these circumstances it is, in my opinion, incumbent on those responsible for determining any future application by the respondent for acceptance into the programme, to adopt a more flexible approach in assessing the application and to permit the respondent to participate in the programme unless the contraindications to his participation are so stark and so clear as to compel the conclusion that it is near on inevitable that he will prevent the successful completion of the programme by other participants and/or be unable to complete the programme. I have to say, in this respect, that in my view the refusal reasons given by those who have to date been responsible for assessing the respondent's applications for admission to the programme, bearing in mind that the applications were supported by Dr Poli, do not reveal that there were such stark and clear contraindications to his participation in the programme.
[155] Act, s 26(1).
Putting to one side what has occurred to date, on the evidence before me the respondent has not committed any prison offence since November 2021 and has not been involved in any prison incident since July 2022. Assuming he remains offence and incident free the respondent's more recent prison behaviour should provide those assessing any further application by him for admission into the Solid Steps Programme with a degree of confidence as to his suitability to participate in the programme.
If despite my recommendation the respondent is not accepted into the Solid Steps Programme, then it is in my view imperative that he be provided as quickly as possible (that is, not within the last few months of the end of the 2-year review period) with the opportunity to participate in individual psychological therapy directed at addressing his substance abuse problem.
In short, and as I said in The State of Western Australia v Narrier [No 6],[156] everything that can be done to afford the respondent the opportunity to address in a substantive way his illicit substance use problem should be done.
[156] The State of Western Australia v Narrier [No 6] [205].
The respondent should also be offered individual psychological counselling and any appropriate forms of programmatic intervention to assist him to address his outstanding treatment needs in the areas of emotional management and interpersonal relationships. Again, the offering of such individual therapy to the respondent should not be left until close to the end of the 2-year review period.
The respondent should continue being prescribed medication directed at controlling his libido.
Attempts should be made, prior to the next review, to ensure a viable accommodation option for the respondent so that if he is found to be suitable for release on a supervision order the absence of accommodation will not prevent this from occurring.
I make one final comment for the respondent's benefit.
The respondent should not take my above recommendations as indicating that an inability by him to engage in intensive substance abuse treatment, if this unfortunately turns out to be the case, will inevitably result in his ongoing detention following his next review. If the respondent can, by the time of the next review, demonstrate that he has abstained (if not totally then almost totally) from using illicit substances in the prison environment and has continued to improve his prison behaviour generally, the judge conducting the review, if they find him to be a high risk serious offender, may conclude that the community can be adequately protected from the risk that he presents by releasing him on a supervision order despite him having not had the opportunity to engage in intensive substance abuse treatment.

ANNEXURE A

STANDARD CONDITIONS REQUIRED BY THE ACT

Report to a Community Corrections Officer at the East Perth Adult Community Corrections Centre 30 Moore Street East Perth within 48 hours of being issued this order and advise the officer of your 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 business 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 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

Residence

Take up residence at [the proposed address] 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;
Not commence or changed paid of unpaid employment, volunteer work, education, or training without the prior approval of the CCO;

Attendance at programs or treatment

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;
Attend all appointments and receive visits from any medical practitioner, psychiatric, counsellor, support service and/or support person nominated by a CCO, as directed by a CCO;

Reporting to WA Police

Report to WA Police at times and at locations as directed by a CCO or WA Police;
If requested, permit Police Offices to enter and search your person, resident and/or vehicle for the purpose of monitoring your compliance with your obligations under this Order and allow the seizure of any such items that the Police Officers believes to contravene the conditions of the Order;
Remain at your premises and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the provisions of the High Risk Serious Offenders Act 2020;

Disclosure/Exchange of Information

Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, inclusion 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 offending history;

Restrictions on contact with Victims

Have no contact, directly or indirectly, with the victims of your sexual and violence offending, unless such contact is conduct 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 or violence 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 victims at all times;
Report to the CCO and WA Police any direct or indirect contact with the victims of your offending on the next working day you report to the CCO or Police;

Criminal conduct

Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either sexual offences, violence, threats of violence, or the possession of weapons or offensive instruments;
Not commit an offence under s202, s203, s204, s557 Criminal Code 1913 (WA) or s 17(1) Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021;
Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014, and your use is in accordance with the instructions of the prescriber;
Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997;

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 you 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 front yard of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring you 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 anti-depressant 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 29 and comply with all testing to monitor your compliance with medical treatment and/or antilibidinal treatment as directed by a CCO;
Attend any medical practitioner, psychologist, psychiatrist, or counsellor as directed by the supervising CCO;
Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of re offending and compliance with treatment to the Department of Justice;

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 Serious Offender Management Squad at your next scheduled appointment;
With the exception of public transport, not to enter in or on any vehicle, including taxis and rideshare vehicles such as but not limited exclusively to Uber, 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 the 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 35;
Not to go, enter any part of your body inside, 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 duration approved in advance by a CCO;
c)     On the order of a CCO or Police Officer;
Not remain in the presence of any person who is affected by alcohol or prohibited substances, or reasonably ought to know to be affected by alcohol or prohibited 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, or remove the persons consuming prohibited drugs from your residence;
Report at your next contact with your CCO, the formation of any social association (of more than 1 contact by any means), domestic, romantic, sexual or otherwise intimate relationship by you with any person;
As directed by your CCO, make full disclosure regarding you past offending and the current order to anyone with whom you commence an ongoing social association (of more than 1 contact by any means), domestic, romantic, sexual or otherwise Intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer;
Advise a CCO of every telecommunication device in your possession and upon request, permit a CCO or WA Police to access your telecommunication device, at any location nominated by the CCO or WA Police for the purpose of ascertaining your activities and associations;
Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 46, without prior approval;
Enable device locking or password access of your computer, telecommunication and/or electronic devices, Not provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device referred to in condition 46, 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 telecommunication and/or device capable of storing digital data, for the purpose of ascertaining your telecommunication and/or electronic device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device; this includes providing all screen name(s), user name(s), and email addresses; Should any other entity be required to access a device for instances such as technical advice, approval must be sought in advance from a CCO; and
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 Derrick
17 OCTOBER 2022