The State of Western Australia v Nelson - [2021] WASC 460

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- NELSON [2021] WASC 460
CORAM:   MCGRATH J
HEARD:   23 NOVEMBER 2021
DELIVERED          :   15 DECEMBER 2021
PUBLISHED           :   15 DECEMBER 2021
FILE NO/S:   SO 3 of 2021
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
SIMON MILTON NELSON
Respondent

Catchwords:

Criminal law - High risk serious offender - Application for restriction order - Whether unacceptable risk that respondent will commit a serious offence if not subject to restriction order - Whether necessary to make a restriction order to ensure adequate protection of the community - Whether community can be adequately protected by supervision of the respondent - Turns on own facts

Legislation:

High Risk Serious Offenders Act2020 (WA), s 3, s 5, s 7, s 27, s 29, s 30, s 35, s 124, s 125

Result:

Supervision order made.

Category: B

Representation:

Counsel:

Applicant	:	Ms F M Allen
Respondent	:	Mr A D Sullivan

Solicitors:

Applicant	:	State Solicitors Office
Respondent	:	Legal Aid (WA)

Cases referred to in decisions:

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 Lyddieth [2012] WASC 246
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Italiano v The State of Western Australia [2009] WASCA 116
The State of Western Australia v D’Rozario [No 3] [2021] WASC 412
The State of Western Australia v Garlett [2021] WASC 387
The State of Western Australia v Latimer [2006] WASC 235

MCGRATH J:

The State of Western Australia seeks a restriction order in respect of Mr Nelson under s 48 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act).[1] The State contends that Mr Nelson is a high risk serious offender and that it is necessary that he be detained in custody for an indefinite term for control, care or treatment and, in the alternative, that should he be released, then he be subject to a supervision order under the HRSO Act.
[1] Application by the State of Western Australia dated 14 June 2021.
On 30 June 2021, Quinlan CJ heard the preliminary hearing and determined that there were reasonable grounds for believing that a Court might, in accordance with s 7, find that Mr Nelson is a high risk serious offender. Quinlan CJ adjourned the State's application for an interim supervision order, being satisfied that the post‑sentence supervision order (PSSO) under the Sentence Administration Act2003 (WA) imposed on Mr Nelson by the Prisoners Review Board on 23 June 2021, to take effect from 2 July 2021, would satisfactorily address any risk arising from Mr Nelson being in the community. On 23 July 2021, Derrick J further adjourned the State's application for an interim supervision order to the hearing of the restriction order application. The PSSO will expire on 1 July 2023.
On 23 November 2021, this application was heard before me. I understand that the position of the applicant at the hearing was that a supervision order under the HRSO should be imposed. Mr Nelson's position was that he should not be subject to the HRSO Act, rather he should continue in the community being subject to the PSSO.
I have determined that it is necessary that Mr Nelson be subject to a restriction order under the HRSO Act to ensure the adequate protection of the community against the unacceptable risk that he will commit a serious offence. I have further determined that subjecting Mr Nelson to a supervision order under s 27 of the HRSO Act will provide adequate protection to the community.
In these reasons, I will consider the following:
1.The relevant legal principles;
2.The evidence received at the hearing;
3.A consideration of the factors under s 7 of the HRSO Act; and
4.Assessment and conclusion.

Legal principles

High Risk Serious Offenders Act 2020 (WA)

The State may make an application for a restriction order where a person is a serious offender under custodial sentence pursuant to s 35 of the HRSO Act. The term 'serious offender under custodial sentence' is defined in s 3:
serious offender under custodial sentence means a person –
(a)who is under a custodial sentence for a serious offence; or
(b)who –
(i)is under a custodial sentence for an offence or offences other than a serious offence; and
(ii)has been under that sentence at all times since being discharged from a custodial sentence for a serious offence;
At the time this application was made, Mr Nelson was serving a term of imprisonment for a 'serious offence' as defined by ss 3 and 5 of the HRSO Act.
A 'serious offence' is defined by s 5 of the HRSO Act which relevantly provides:
5.Term used: serious offence
(1)      An offence is a serious offence if –
(a)     it is specified in Schedule 1 Division 1; or
(b)it is specified in Schedule 1 Division 2, and is committed in the circumstances indicated in relation to that offence in that Division.
(2)      An offence is a serious offence if –
(a)it was an offence under a written law that has been repealed; and
(b)the offender's acts or omissions that constituted the offence under the repealed provision would constitute a serious offence under subsection (1).
(3)An offence is a serious offence if it is an offence of conspiracy, attempt or incitement to commit an offence that is a serious offence under subsection (1) or (2).
Mr Nelson has committed offences that come within this category. Mr Nelson has also committed a number of offences that are not characterised as serious offences. Offences of other types may be relevant in assessing the risk of serious offending being committed in the future because other offences may be connected to behaviour which has the real potential to lead to serious offending.[2]
[2] Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246 [10].
Section 7(1) of the HRSO Act provides that an offender is a high risk serious offender if the Court 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. If the Court is satisfied that there is an unacceptable risk of the kind described in s 7(1) of the HRSO Act, it necessarily follows that the person concerned is a high risk serious offender.[3]
[3] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [66], [68] (Wheeler JA); Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [21] (Steytler P & Buss JA).
Section 7(2) of the HRSO Act provides that the State has the onus of satisfying the Court that a person is a high risk serious offender. The Court has to be satisfied by acceptable and cogent evidence and to a high degree of probability. This is a standard that is greater than a finding on the balance of probabilities and less than a finding of beyond reasonable doubt, but is otherwise incapable of further definition.[4] This does not necessarily mean that the risk must be at some high percentage of probability; a risk may be less than 50% yet still be unacceptable. However, the Court must identify what it is that constitutes the risk and what makes it unacceptable and then consider whether or not those factors have been proved to the requisite standard, that being to a high degree of probability, furnished by acceptable and cogent evidence.[5]
[4] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [28] (Steytler P & Buss JA).
[5] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [34] (Steytler P & Buss JA).
In The State of Western Australia v Garlett,[6] Corboy J identified that there is 'arguably a material difference between s 7(1) of the DSO Act, read with s 17, and s 7(1) of the HRSO Act, read with s 48', being the inclusion in s 7(1) of the requirement that the Court be satisfied that 'it is necessary to make a restriction order'. Corboy J stated:[7]
It is arguable that the words 'necessary to make a restriction order in relation to the offender to ensure adequate protection of the community' introduce a further evaluative element over and above an evaluation of whether the risk of an offender committing a serious offence is unacceptable.
[6] The State of Western Australia v Garlett [2021] WASC 387.
[7] The State of Western Australia v Garlett [2021] WASC 387 [135].
Corboy J recognised in The State of Western Australia v Garlett that the current form of s 7(1) requires that the need to ensure adequate protection for the community should form part of the Court's determination of whether the offender is a high risk offender (the first step in making a restriction order) and not merely be the paramount consideration in deciding what form of order should be made in respect of an offender who has been found to be a high risk serious offender (the second step).[8]
[8] The State of Western Australia v Garlett [2021] WASC 387 [18], [139].
In The State of Western Australia v D'Rozario,[9] Quinlan CJ agreed with Corboy J's construction of s 7(1) of the HRSO Act.
[9] The State of Western Australia v D’Rozario [No 3] [2021] WASC 412.
I also agree with Corboy J's construction of the HRSO Act. Therefore, the Court is required to make two evaluative judgments under s 7 of the HRSO Act being first, whether the risk of future offending is unacceptable and, second, whether it is necessary to make a restriction order to adequately protect the community. The Court could find that it is not necessary to make a restriction order to adequately protect the community, despite the Court finding that the risk of future offending was unacceptable. As Quinlan CJ observed, it would be a rare situation that the Court would find that it was not necessary to make a restriction order to adequately protect the community notwithstanding that it has been found that the risk of future offending was unacceptable.[10] Quinlan CJ gave the example where 'other external restraints on an offender (such as a post‑sentence supervision order under the SentenceAdministration Act 2003 (WA)) may provide adequate protection of the community against the unacceptable risk that the offender will commit a serious offence (such that a restriction order is not 'necessary').'[11]
[10] The State of Western Australia v D’Rozario [No 3] [2021] WASC 412 [21].
[11] The State of Western Australia v D’Rozario [No 3] [2021] WASC 412 [21].
A finding that there is an unacceptable risk involves a balancing exercise requiring the Court to have regard to, among other things, the nature of the risk (the commission of a serious offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition whilst having regard, on the other hand, to the serious consequences for Mr Nelson if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order).[12]
[12] Italiano v The State of Western Australia [2009] WASCA 116 [46].
An unacceptable risk in the context of s 7(1) of the HRSO Act is therefore a risk which is unacceptable having regard to a variety of considerations. These may include the likelihood of the person offending, the type of serious offence which the person is likely to commit (if that can be predicted) and the consequences of finding that an unacceptable risk exists. I am required to consider whether, having regard to the likelihood of Mr Nelson offending and the offence to be committed, the risk of that offending is so unacceptable that, notwithstanding the fact that Mr Nelson has already been punished for the offences he has committed, it is necessary in the interests of the community to ensure that he is subject to further control or detention.[13]
[13] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63] (Wheeler JA).
Section 7(3) of the HRSO Act sets out a number of matters that the Court must have regard to in considering whether a person is a serious danger to the community. Those matters are:
(3)In considering whether it is satisfied as required by subsection (1), the court must have regard to the following –
(a)any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section;
(b)any other medical, psychiatric, psychological, or other assessment relating to the offender;
(c)information indicating whether or not the offender has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by the offender;
(e)any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;
(f)whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;
(g) the offender's antecedents and criminal record;
(h)the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;
(i)the need to protect members of the community from that risk;
(j) any other relevant matter.
I note that s 7(3)(j) of the HRSO Act provides that the list of matters to be considered by the Court is not limited by those otherwise delineated in the subsection.
While s 7(3)(g) of the HRSO Act provides that the Court must have regard to the offender's criminal record in deciding whether a person is a serious danger to the community, the mere fact that a person has committed previous offences does not necessarily mean that there is an unacceptable risk that the person would commit a serious offence in the future. The relevance of a prior criminal record would depend on the nature of the offences committed, the number of offences and the period of time over which they occurred. However, past behaviour is often a good indicator of future conduct.
If a Court determines that an offender is a high risk serious offender, then the Court is required to make a restriction order.[14]
[14] High Risk Serious Offenders Act 2020 (WA), s 48.
The term 'restriction order' is defined in s 3 of the HRSO Act to mean 'a continuing detention order' or 'a supervision order'. The terms 'continuing detention order' and 'supervision order' are defined in ss 26 and 27 respectively in similar terms to those that were used in the DSO Act.[15]
[15] Dangerous Sexual Offenders Act 2006 (WA), s 3.
Section 26 of the HRSO Act 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.
Section 27 of the HRSO Act 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.
In making a determination between those two alternatives the paramount consideration is the need to ensure the adequate protection of the community.[16]
[16] High Risk Serious Offenders Act 2020 (WA), s 48(2).
However, other considerations do apply. The use of the word 'adequate' in the section indicates that a qualitative assessment is required. It cannot be assumed that the most preventative action is detention and that therefore the protection of the community will always favour such an order.[17]
[17] Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14].
Given the more onerous nature of a continuing detention order, the scheme of the HRSO Act requires that the Court do no more than is necessary for the continuing control, care or treatment of the offender to achieve an adequate degree of protection of the community.[18]
[18] The State of Western Australia v Latimer [2006] WASC 235 [24]; Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [15].
Section 29 of the HRSO Act provides that a Court cannot make a supervision order unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order. The onus of proof is on the respondent offender pursuant to s 29(2) of the HRSO Act.
The words 'will substantially comply with' should be given their ordinary meaning, consistent with the purposes of the legislation and the general conditions of a supervision order, the overall object of which is to achieve the adequate protection of the community by appropriate management and mitigation of the unacceptable risk that the respondent will commit a serious offence.[19]
[19] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52].
The term 'standard condition', in relation to a supervision order, is defined by s 3 of the HRSO Act as meaning a condition that under s 30(2) must be included in the order. Section 30(2) of the HRSO Act provides seven conditions that must be included in any Court ordered supervision order. Therefore, Mr Nelson must satisfy the Court that he will substantially comply with those standard conditions before the Court can make a supervision order. The seven standard conditions set out in s 30(2) of the HRSO Act require that the person:
(a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender's current name and address; and
(b)report to, and receive visits from, a community corrections officer as directed by the court; and
(c)notify a community corrections officer of every change of the offender's name, place of residence or place of employment at least 2 days before the change happens; and
(d)be under the supervision of a community corrections officer and comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32); and
(e)not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and
(f)not commit a serious offence during the period of the order; and
(g)be subject to electronic monitoring under section 31.

Evidence

The State's evidence comprised the oral testimony of four witnesses, namely Dr Wojnarowska, Consultant Forensic Psychiatrist; Ms Hasson, Forensic Psychologist; Ms Korda, Senior Forensic and Clinical Psychologist; Ms Cashmore, Senior Community Corrections Officer and a Book of Materials that comprised the relevant documentary material including reports.[20] The State also tendered an email from the Community Offender Monitoring Unit dated 22 November 2021 providing an update regarding Mr Nelson's compliance.[21] Mr Nelson did not adduce evidence at the hearing.[22]
[20] Exhibit 1, Book of Materials.
[21] Exhibit 2, Email from the Community Offender Monitoring Unit dated 22 November 2021.
[22] ts 65 (23/11/2021).

I now turn to the matters relevant to determining whether or not Mr Nelson is a high risk serious offender pursuant to s 7 of the HRSO Act. I will do so by considering the evidence in the context of the factors under s 7 of the HRSO Act.

Factors under s 7 of the HRSO Act

History of offending and antecedents - ss 7(3)(c), 7(3)(d) and 7(3)(g)

In deciding whether a person is a high risk serious offender, the Court must have regard to the person's antecedents and criminal record. That requires that all prior offences be considered, to the extent that such offences are relevant to the question of whether the person is a high risk serious offender within the meaning of the HRSO Act (whether they be serious offences or not). It also requires consideration of the person's antecedents, including the context in which the past offences were committed.
The criminal record and antecedents are relevant in and of themselves but are also relevant to whether the person has a propensity to commit serious offences in the future.[23] The criminal record and antecedents are also relevant as to whether there is any pattern of offending behaviour.[24]

Antecedents

[23] High Risk Serious Offenders Act 2020 (WA), s 7(3)(c).

[24] High Risk Serious Offenders Act 2020 (WA), s 7(3)(d).

Mr Nelson is a 48‑year‑old Aboriginal man having been born on 23 October 1973.
Mr Nelson informed Ms Hasson, psychologist, that he was not subject to abuse or neglect as a child and that during his childhood he had a happy and loving family. Mr Nelson's parents separated when he was young, requiring him to move a number of occasions during his childhood including to Alice Springs, when he was ten years of age, and Whyalla.
Mr Nelson completed his education to Year 11 and then commenced employment in the sheet metal industry. Mr Nelson has not undertaken any qualifications since leaving high school. Mr Nelson has four children from two partners. The relationship with the mother of the two oldest children, who are now aged 18 and 17 years respectively, lasted about nine years. Mr Nelson has no contact with the other two children who reside in Adelaide.
Mr Nelson commenced using illicit drugs and alcohol at a young age. Mr Nelson's use of drugs and alcohol has significantly affected his personal relationships.
Mr Nelson has a medical history of diabetes and recent heart issues but describes himself as fit and healthy.[25]

Relevant criminal history

[25] Exhibit 1, Book of Materials, Report of Ms Hasson dated 13 October 2021, 451.

Mr Nelson's offending involves offences committed in Western Australia, South Australia, Victoria and the Northern Territory. The offending history is summarised, in part, in a chronology of offending which was received in evidence.[26] I will outline the index offending and then turn to some of Mr Nelson's other convictions, delineating the offending that may constitute serious offences under s 5 and sch 1 of the HRSO Act. The full extent of Mr Nelson’s offending history is outlined in the respective criminal records of the States and Territories in which Mr Nelson resided, which formed part of the material relied upon by the applicant.

Index offending – serious offending

[26] Exhibit 1, Book of Materials, Chronology of offending, 27 - 33.

On 14 May 2014, Mr Nelson was convicted in the Supreme Court of Western Australia of five counts comprising one count of stealing a motor vehicle contrary to ss 371A and 378 of the Criminal Code (WA), one count of attempting to steal of motor vehicle contrary to ss 371A and 378 of the Criminal Code, one count stealing two vehicle number plates contrary to s 378 of the Criminal Code, one count of armed robbery contrary to s 392(c) of the Criminal Code and one count of robbery contrary to s 392(e) of the Criminal Code.[27] Jenkins J imposed a total effective sentence of five years' imprisonment.[28] The facts of the offending comprise Mr Nelson being ejected from a liquor store and then stealing a Kia panel van parked in the loading bay. Mr Nelson subsequently went to a vehicle dealership where he stole registration plates which he then affixed to the stolen vehicle. The counts of armed robbery and robbery involved Mr Nelson attending a garden nursery shop at which time he held a cricket bat and threatened the victim with violence unless he gave Mr Nelson his car keys. Mr Nelson then stole the victim's vehicle and drove to a shopping centre. At that time, he approached another victim whilst she was exiting her vehicle, holding a Coca-Cola bottle above his head. At that time, Mr Nelson pulled the female victim from the vehicle demanding her keys. The victim complied with Mr Nelson's demand and he left in her vehicle.

Other offences that constitute serious offences under the HRSO Act

[27] Exhibit 1, Book of Materials, Indictment No. 28 of 2014.

[28] Exhibit 1, Book of Materials, State of Western Australia v Nelson [2014] WASCR 85, 393 - 400.

In 1990, at 15 years of age, Mr Nelson was convicted in the Adelaide Children's Court of unlawful sexual intercourse. The Adelaide Youth Court advised the State that due to the historical nature of the offending no information was available concerning the factual circumstances.[29] Mr Nelson was convicted and discharged without penalty.[30]
[29] Exhibit 1, Book of Materials, Chronology of offending, 27.
[30] Exhibit 1, Book of Materials, Chronology of offending, 27.
At 16 years of age, in the Adelaide Children's Court, Mr Nelson was convicted of robbery with violence and common assault and was discharged without penalty. Given the historic nature of the conviction, the State was unable to obtain any information regarding the offending. The conviction of robbery with violence constitutes a 'serious offence.'[31]
[31] Exhibit 1, Book of Materials, Chronology of offending, 27.
In December 2000, in the District Court of Western Australia, the respondent was convicted of deprivation of liberty, stealing a motor vehicle and threats to kill. The offending involved using a knife as a weapon to threaten the victim in the context of domestic violence. The respondent received a total effective sentence of four years' imprisonment. The offence of deprivation of liberty is a 'serious offence' under the HRSO Act.[32]
[32] Exhibit 1, Book of Materials, Chronology of offending, 28.
In September 2003, in the Supreme Court of the Northern Territory, Mr Nelson was convicted of three offences namely, doing an act causing serious actual danger, doing an act causing serious potential danger and assault occasioning bodily harm. The offending involved Mr Nelson spitting at a police officer knowing that he was affected by Hepatitis C and, further, discharging a shotgun in the front door of an occupied unit while there were two children within the unit. For this offending Mr Nelson received a total effective term of imprisonment of three years and six months.[33]

Other convictions – not 'serious offences' under the HRSO Act

[33] Exhibit 1, Book of Materials, Chronology of offending, 28.

In 1992, in the Mildura Magistrates Court, Mr Nelson was convicted of criminal damage with intent to damage or destroy. A term of imprisonment of two months suspended for 12 months was imposed. There is no information regarding the factual circumstances of the offending due to the historical nature of the conviction.[34]
[34] Exhibit 1, Book of Materials, Chronology of offending, 27.
In 1997, Mr Nelson was convicted in the Perth Court of Petty Sessions of assaulting a public officer and of common assault for which he received a nine month term of imprisonment.[35]
[35] Exhibit 1, Book of Materials, WA Criminal Record, 8.
In 1998, Mr Nelson was convicted in the District Court of Western Australia of assault occasioning bodily harm for which he received a two year term of imprisonment. Mr Nelson was also convicted of threats to kill for which a one year term of imprisonment was imposed.[36] There is no information regarding the factual circumstances of the offending due to the historical nature of the conviction.
[36] Exhibit 1, Book of Materials, WA Criminal Record, 7.
In 2010, Mr Nelson was convicted in the Perth Magistrates Court of assault occasioning bodily harm, common assault, possessing prohibited drugs and breaching bail. Mr Nelson was imprisoned for the offending.[37]
[37] Exhibit 1, Book of Materials, WA Criminal Record, 4.
In August 2014, in the Perth Magistrates Court, Mr Nelson was convicted of multiple offences.[38] First, of possessing a firearm in circumstances of aggravation, possessing an unlicensed firearm or ammunition and possession of prohibited drugs with intent to sell or supply. The offending involved the police locating a shotgun that had been altered with the barrel sawn off and having possession of 78 grams of cannabis. For this offending, Mr Nelson received a sentence of nine months' imprisonment.
[38] Exhibit 1, Book of Materials, Chronology of offending, 28 - 32.
Second, of drug offences and of carrying an article with intent to cause fear. For this offending Mr Nelson was imprisoned for three months. Further, Mr Nelson was convicted of another offence of possessing an article with intent to cause fear for which he received three months' imprisonment.
Third, of criminal damage, common assault, carrying an article with intent to cause fear that someone would be injured, stealing a motor vehicle, obstructing public officers, threats to injure, endanger or harm any person and possession of prohibited drugs. The offending comprised, in part, Mr Nelson swerving his car and slamming on the brakes causing the vehicle behind to impact his vehicle. Mr Nelson then approached the other vehicle and punched the victim to the face through the open passenger window without causing any significant injuries. At the same time, Mr Nelson was carrying a metal object in his left hand which he scratched along the passenger side window. Further, Mr Nelson chased a male into a restaurant and commenced damaging the inside of the restaurant. The offence of obstructing police officers involved Mr Nelson threatening violence towards the officers.
Fourth, Mr Nelson was convicted of aggravated assault occasioning bodily harm that involved him viciously assaulting the victim with whom he was in a domestic relationship. Mr Nelson repeatedly punched the victim to the face and body and then smashed a mirror and a hammer to the victim's head.[39]

Prison behaviour

[39] Exhibit 1, Book of Materials, Chronology of offending, 27 - 32.

In respect of Mr Nelson's behaviour in prison between 2 January 2014 and 1 July 2021, Mr Nelson accumulated a total of 61 incidents, with 24 of those resulting in charges and loss of privileges or being placed in punishment. The incidents involved threats to police officers, assaulting a prison officer, fighting, drug use, possession of weapons and disobeying orders.[40]

Propensity to commit serious offences in the future - s 7(3)(c)

[40] Exhibit 1, Book of Materials, Report of Dr Wojnarowska dated 4 October 2021, 485.

The word 'propensity' is taken to have its ordinary meaning in the context of the criminal law. In Director of Public Prosecutions (WA) v GTR, Murray AJA stated that:[41]
[propensity] means that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of a quality of a diagnosable mental illness or personality disorder.
[41] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [178] (Murray AJA).
The State submitted that Mr Nelson's offending history is chronic and extensive with his first offending occurring as a child and with the only significant gap in his offending history being when in custody. The State submitted that Mr Nelson's criminal record supports a finding that he has a propensity to act violently and 'often whilst armed with a weapon'. The State contends that Mr Nelson's propensity is to commit serious offences generally.[42] I did not understand the State to be contending that the respondent has a propensity to commit 'serious offences' as defined under the HRSO. Given the infrequency of Mr Nelson’s serious offending I do not accept that Mr Nelson has a propensity to commit 'serious offences.' However, Mr Nelson has a history that supports a finding that he commits offences against persons involving violence.

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

[42] Exhibit 1, Book of Materials, Applicant’s written submissions dated 18 November 2021, [84] - [85].

The State submitted that Mr Nelson has demonstrated a consistent pattern of violent offending with consistent lack of regard for his victims. Further, the State submitted that Mr Nelson's offending exhibits a pattern of making threats to victims to ensure compliance and violent or dangerous offending that has the potential to cause serious or life‑threatening injury.[43]
[43] Applicants written submissions dated 18 November 2021, [87] - [89].
Dr Wojnarowska expressed the opinion that Mr Nelson's offending reveals a history of generalist and violent offending since his childhood, with his offences occurring in the context of his anti-social behaviour and being associated with alcohol and substance intoxication.[44]

Efforts to address offending behaviour and whether or not the participation in any rehabilitation program has had a positive effect - ss 7(3)(e) and 7(3)(f)

[44] Exhibit 1, Book of Materials, Report of Dr Wojnarowska dated 4 October 2021.

I must also consider if Mr Nelson has made any efforts to address the cause or causes of his offending behaviour, including by participating in any rehabilitation programs. Further, whether or not the participation in any rehabilitation program has had a positive effect.
Mr Nelson's history of treatment interventions and programs is outlined by both Dr Wojnarowska and Ms Hasson.

Treatment programs

Mr Nelson has undertaken or completed numerous treatment or programmatic intervention courses over an extended period. The relevant reports from the programs formed part of the State's material. I have considered those reports and will provide a succinct summary.[45]
[45] Exhibit 1, Book of Materials, 410 - 431.
Between 16 January 2001 and 13 February 2001, Mr Nelson participated in the Skills Training for Aggression Control treatment program at Wooroloo Prison. The treatment completion report states that Mr Nelson 'worked to a very high level of participation' and actively encouraged and assisted other participants.
On 11 October 2011, Mr Nelson completed the Pathways Program at Casuarina Prison. Mr Nelson was assessed as having engaged well in the program though on occasions he presented as oppositional and regularly challenged facilitators. Mr Nelson was considered to have made 'some gains and connection to his treatment needs, however his relapse and recidivism plan contained minimal content and lacked specific strategies'. Further, Mr Nelson was observed 'to defend antisocial behaviour on many occasions and appeared to justify and minimise his offences.'
Between 30 March 2015 and 21 May 2015, Mr Nelson participated in the Think First program at Albany Regional Prison. The program completion report dated 11 June 2015 states that Mr Nelson demonstrated a 'fairly basic level of understanding of the course content' and appeared to have gained most benefit in sessions concerning problem solving, self‑management and perspective taking. However, due to the fact that Mr Nelson subsequently made threats against a staff member he was removed from Albany Regional Prison immediately upon program completion and, as such, facilitators were unable to conduct a post‑course interview and robust assessment of treatment gains.
On 20 May 2015, at Albany Regional Prison, Mr Nelson commenced the Pathways Program. Mr Nelson participated in approximately seven program sessions before being transferred to another prison due to him making threats to a staff member. However, the program non‑completion report dated 29 June 2015 states that Mr Nelson 'engaged well in the program and presented as motivated'. Mr Nelson did not complete sufficient parts of the program to address any of his identified outstanding treatment needs.
In 2017, Mr Nelson was scheduled to commence the Violent Offender Treatment Program (VOTP). Regrettably, Mr Nelson declined to participate in this program and therefore signed a Program Participation Waiver on 1 May 2017. Mr Nelson outlined his reasons for declining stating that his brother needed support while facing a criminal charge and, further, that he wished to complete the Pathways Program prior to participating in the VOTP.
On 22 February 2018, Mr Nelson commenced the Pathways Program at Casuarina Prison. Mr Nelson's participation in that program was inconsistent. Facilitators observed that 'at times he would be quiet with no contributions to group discussions and at other times engaged in long, argumentative discussions that often had a threatening tone'. Regrettably, Mr Nelson missed five consecutive program sessions due to his placement in the punishment unit after threatening a prison officer. Upon recommencing the program, the report states that 'he engaged in an outburst where he threatened to assault a former staff member of the department'. Consequently, Mr Nelson was removed from that program and facilitators expressed the view that his participation in the program was a disingenuous attempt at addressing his drug and alcohol treatment needs.

Psychiatric reports and extent to which Mr Nelson cooperated with psychiatric examinations - s 7(3)(a)

Dr Wojnarowska

Dr Wojnarowska, Forensic Psychiatrist, produced one report dated 4 October 2021 and also gave oral testimony at the hearing of the application.
Dr Wojnarowska prepared the report based on material provided as Mr Nelson was uncooperative with the assessment process, displaying hostility and prematurely leaving the interview.[46]
[46] Exhibit 1, Book of Materials, Report of Dr Wojnarowska dated 4 October 2021, 479.
Dr Wojnarowska determined that Mr Nelson's personality structure is characterised by disregard for societal norms, limited ability to empathise, impulsivity and entitlement. Further, Mr Nelson presents with profound deficits in interpersonal functioning, characterised by lack of empathy associated with limited remorse for his behaviour. Dr Wojnarowska stated Mr Nelson satisfies the criteria for severe Antisocial Personality Disorder with childhood onset. Further, Mr Nelson satisfies the criteria for substance use disorder (alcohol, amphetamines and cannabis) being in 2016 and for non‑prescription medication in 2018.
Dr Wojnarowska also utilised the Hare Psychopathy Check‑list‑Revised (PCL-R), which assesses the extent to which an individual's personality structure conforms to the clinical construct of psychopathy. The PCL‑R score is recognised as a useful indicator of likely future recidivism for general, violent offending. The score obtained from this test can be an important component of other risk assessment tools including structured clinical guides.
Dr Wojnarowska determined that Mr Nelson's score of 29 placed him in the higher end of the scale with equal distribution on interpersonal and affective items in factor 1 and antisocial items in factor 2. Mr Nelson's scores on factor 2 (Social Deviance) were significantly elevated.
Dr Wojnarowska utilised the HCR-20 v3 which is a broad-band violence risk assessment instrument with potential applicability to a variety of settings. The conceptual scheme of the HCR-20 v3 aligns risk markers into past, present and future. The future is recognised in the 5 Risk Management items, which focus attention on situational post‑assessment factors that may aggravate or mitigate risk.

Dr Wojnarowska observed that Mr Nelson has a significant history of substance abuse commencing in his adolescence. At the age of 14 Mr Nelson started consuming alcohol and at 16 years of age was introduced to marijuana. Mr Nelson also has a history of methylamphetamine and heroin use. In respect of violence and other antisocial behaviour, Dr Wojnarowska observed that Mr Nelson has a long history of making threats and intimidating, not only to intimate partners but random persons in the community. He has at times targeted prison officers and made threats to kill them or their animals.
Dr Wojnarowska determined that Mr Nelson has a well‑entrenched anti‑authoritarian stance that has not subsided over the years. Dr Wojnarowska observed that Mr Nelson has limited pro‑social support and his history discloses that he associates with persons that engage in criminal behaviour and substance abuse. Mr Nelson has a tendency to resort to violence in a number of situations and that he is easily triggered to do so. According to program reports, Mr Nelson did not express any empathy or remorse for the victims. Mr Nelson has a tendency to act in an impulsive manner and displays negative and hostile attitudes towards authority figures.
Dr Wojnarowska states that if Mr Nelson commenced substance abuse, socialising with anti‑social peers, he is likely to quickly commence reoffending again.[47] Further, Dr Wojnarowska observed that Mr Nelson had no desire of gaining meaningful employment and therefore will require close supervision.
[47] Exhibit 1, Book of Materials, Report of Dr Wojnarowska dated 4 October 2021, 489.
Dr Wojnarowska stated the most likely risk scenario will be Mr Nelson socialising with anti‑social peers and using illicit substances, including methylamphetamine, that will increase his anger and decrease inhibitions. Mr Nelson, if using drugs, is likely to become more uncontrollable and may use a weapon to inflict fear into his victims for compliance.
Dr Wojnarowska stated that if Mr Nelson re‑engages in criminal activity, it has a potential to occur frequently and that 'his risk is chronic and is directly related to entrenched habit and lifestyle.'[48]
[48] Exhibit 1, Book of Materials, Report of Dr Wojnarowska dated 4 October 2021, 491.
Dr Wojnarowska stated that, in her opinion, given the application of PCL‑R and HCR‑20 v3, Mr Nelson was at a high risk of reoffending in a violent manner. During the interview with Dr Wojnarowska, Mr Nelson stated that, if further restrictions were placed on him, he would go into hiding. Dr Wojnarowska said this is an additional risk factor that requires consideration in his community management. Dr Wojnarowska said that irrespective of the order placed on Mr Nelson, he remains chronically high risk of reoffending. His compliance with any type of order would be determined by his motivation rather than the degree of restrictions placed on him unless particularly stringent. Moreover, there is a valid argument that if more restrictions are placed on Mr Nelson, he would then be more likely to leave the area and travel interstate.[49]

Psychological and other assessments - s 7(3)(b)

Ms Hasson

[49] Exhibit 1, Book of Materials, Report of Dr Wojnarowska dated 4 October 2021, 492.

Ms Hasson, Forensic Psychologist, provided a report and gave evidence at the hearing.[50] Ms Hasson gave evidence that Mr Nelson was not willing to engage in the assessment process, remaining at the interview for only one hour.[51] Ms Hasson expressed the opinion that in her experience it was very rare for a person not to engage and therefore reliance was placed on the historical records to prepare her report.
[50] ts 42 - 55 (23/11/2021).
[51] ts 43 (23/11/2021).
Ms Hasson expressed the opinion that Mr Nelson has an entrenched history of violent offending with the index offences involving acts of serious violence committed against strangers and further, having a history of violence against intimate partners. Ms Hasson stated that Mr Nelson's refusal to participate in the assessment process resulted in some limitations in undertaking the assessment but that the abundance and consistency of collateral information provided sufficient confidence in expressing a reliable and valid opinion.[52]
[52] Exhibit 1, Book of Materials, Report of Ms Hasson dated 13 October 2021, 467.
Ms Hasson assessed Mr Nelson using the PCL-R scale using both historical and dynamic data for the assessment of psychopathy. Ms Hasson observed that there is a quantitative difference between the violence of psychopaths and non-psychopaths. Mr Nelson's score on the PCL-R scale was 28 indicating that he does not fit the construct of psychopathy in Australia.[53] However, the score of 28 is in the high range, demonstrative of Mr Nelson's historical risk factors comprising, in part, his chronically unstable, antisocial and socially deviant lifestyle characterised by poor behavioural control, impulsivity, lack of remorse, guilt or empathy and failure to accept responsibility for his actions.[54]
[53] Exhibit 1, Book of Materials, Report of Ms Hasson dated 13 October 2021, 467.
[54] Exhibit 1, Book of Materials, Report of Ms Hasson dated 13 October 2021, 467 - 468.
Ms Hasson assessed Mr Nelson's risk for violent offending using the HCR‑20 v3. Using the HCR‑20 v3 framework, Ms Hasson identified historical risk factors associated with problems with violence, antisocial behaviour, relationships, employment, substance abuse, personality disorder, violent attitudes, treatment or supervision response and problems with traumatic experiences. In addition, Ms Hasson identified recent problems with insight, violent ideation or intent, symptoms of major mental disorder, instability and treatment or supervision response, which were determined to be present or partially present on the clinical scale. Future problems with professional services or plans, living situation and personal support, treatment or supervision response and stress or coping were identified to be present or present to some extent.
Ms Hasson identified outstanding treatment needs, including Mr Nelson’s antisocial attitudes/beliefs and peers, substance misuse, emotional and behavioural regulation, interpersonal relations, coping and problem solving skills and self-destructive and risk taking behaviour. Ms Hasson stated that the treatment needs would be most appropriately addressed through group-based general and intimate partner violence programs and specialised substance use counselling. Ms Hasson stated that long term intervention was required.
Ms Hasson stated that Mr Nelson's risk of reoffending is chronic. Mr Nelson has not been able to reside in the community previously without engaging in offending behaviour. Given that Mr Nelson has not addressed his risk factors with treatment, Ms Hasson assessed him as being at a high risk of reoffending. Mr Hasson identified the likely risk scenarios of future violence as including offending that parallels the index offending.[55] That is, Mr Nelson will behave in an aggressive and violent manner toward an individual who is trying to stop him from committing an offence or is not being compliant with his demands during an offence such as robbery or armed robbery. Mr Nelson is likely to be in possession of a weapon, possibly a knife or firearm, and there is a real possibility of Mr Nelson using the weapon. An alternative scenario is the use of a weapon and the infliction of a serious injury or harm to an intimate partner.[56]
[55] Exhibit 1, Book of Materials, Report of Ms Hasson dated 13 October 2021, 473.
[56] Exhibit 1, Book of Materials, Report of Ms Hasson dated 13 October 2021, 473.
Ms Hasson concluded that Mr Nelson presented a high risk of serious violent offending if he was not subject to a period of supervision and monitoring.[57] Ms Hasson gave testimony that she was not able to 'separate out the risk of committing a serious offence or a risk of committing a violent offence.' Rather, Ms Hasson stated that Mr Nelson is 'at high risk of committing a violent offence that could well be serious in nature.'[58]
[57] Exhibit 1, Book of Materials, Report of Ms Hasson dated 13 October 2021, 475.
[58] ts 46 (23/11/2021).
Ms Hasson observed that Mr Nelson during his interview expressed negative and hostile attitudes towards professionals. Ms Hasson expressed the opinion that the risk would be better managed in the community by a supervision order under the HRSO Act than by a PSSO.[59] The supervision order should be for a period of at least five years.

Proposed HRSO Management Plan - Ms Korda

[59] Exhibit 1, Book of Materials, Report of Ms Hasson dated 13 October 2021, 475 - 476.

Ms Korda, Senior Forensic Psychologist, provided a HRSO management plan dated 19 October 2021,[60] and gave testimony at the hearing.[61] Ms Korda expressed the opinion that Mr Nelson 'presents with extensive treatment issues associated with his history of violent offending, which remain largely unaddressed due to his limited engagement in appropriate intervention to date.'[62] Ms Korda states that Mr Nelson's treatment needs comprise violence propensity, antisocial and violence supportive attitudes and beliefs, cognitive distortions, substance abuse, emotional and behavioural regulation, interpersonal relationships, limited insight into his general functioning and offending behaviour and limited relapse prevention planning.
[60] Exhibit 1, Book of Materials, Proposed HRSO Management Plan dated 19 October 2021, 440 - 446.
[61] ts 55 - 59 (23/11/2021).
[62] Exhibit 1, Book of Materials, Proposed HRSO Management Plan dated 19 October 2021, 445.
Ms Korda stated that if Mr Nelson remains in the community then 'he will require significant structure, intervention and supervision to avoid a return to his problematic behaviour.'[63] Ms Korda stated that given Mr Nelson's expressed attitudes and behaviour toward the individuals involved in his assessment, treatment and management, his compliance and willingness to engage at a meaningful level and respond to direction/instruction would need to be closely monitored.[64]
[63] Exhibit 1, Book of Materials, Proposed HRSO Management Plan dated 19 October 2021, 446.
[64] Exhibit 1, Book of Materials, Proposed HRSO Management Plan dated 19 October 2021, 446.
Ms Korda stated that the seriousness of Mr Nelson’s criminal history, the extent of his outstanding treatment needs and the fact that Mr Nelson proposes to reside in a regional area necessitates that the supervision must be collaborative with a holistic approach with regular information sharing between those involved with his management.[65] Ms Korda was examined as to whether the necessary supervisory structure for Mr Nelson could be achieved by the PSSO or whether a supervision order was required. To that question, Ms Korda stated 'that’s a difficult question' and that when she expressed the opinion in her report she did not have a particular type of supervision disposition in mind.[66]

The risk that a serious offence will be committed if a continuing detention or supervision order is not made - s 7(3)(h)

[65] Exhibit 1, Book of Materials, Proposed HRSO Management Plan dated 19 October 2021, 446.

[66] ts 58 (23/11/2021).

The psychiatric and psychological evidence supports the finding that Mr Nelson is at a high risk of committing further serious offences. This assessment of risk takes into account his ongoing treatment needs. Mr Nelson has undertaken a number of treatment programs. However, it is clear that there is the risk that a serious offence may be committed if a continuing detention or supervision order is not made.

The need to protect members of the community from that risk - s 7(3)(i)

There is a need to protect the community from the risk that Mr Nelson will commit a serious offence.

Any other relevant matter - s 7(3)(j) - Community Supervision Assessment

Ms Cashmore, Senior Community Corrections Officer at the Community Offender Monitoring Unit of the Department of Corrective Services, provided a community supervision assessment report dated 19 October 2021,[67] and gave oral evidence at the hearing.[68]
[67] Exhibit 1, Book of Materials, Community supervision assessment report of Ms Cashmore dated 19 October 2021, 493 - 511.
[68] ts 60 - 63 (23/11/2021).
Ms Cashmore outlined Mr Nelson's compliance with the PSSO. Further, the State provided an update at the hearing of the application.[69] Mr Nelson's attendance at scheduled supervision appointments has been satisfactory. However, he failed to attend supervision on 15 November 2021 and 17 November 2021. Subsequently, telephone contact was made with Mr Nelson, during which he stated that he had family issues that affected his reporting compliance. In respect of urinalysis testing Mr Nelson reported positive to cannabis on four occasions.[70] As a consequence, Mr Nelson was subject to a charge of breaching his PSSO.
[69] Exhibit 2, Email from the Community Offender Monitoring Unit dated 22 November 2021.
[70] Exhibit 1, Book of Materials, Community supervision assessment report of Ms Cashmore dated 19 October 2021, 501; Exhibit 2, Email from the Community Offender Monitoring Unit dated 22 November 2021.
Ms Cashmore met with Mr Nelson on two separate occasions at which time the likely proposed conditions of a HRSO supervision order were discussed. Mr Nelson is currently residing with his sister at her residence. That residence was examined by the authorities, including a desktop spatial analysis conducted by the WA Police on 27 September 2021. The result of that desktop spatial analysis was that the property was deemed suitable for Mr Nelson to reside at with his sister.[71]
[71] Exhibit 1, Book of Materials, Community supervision assessment report of Ms Cashmore dated 19 October 2021, 503.
Ms Cashmore outlined strategies that may be imposed to manage Mr Nelson should he be released on a supervision order. Mr Nelson would be subject to global positioning monitoring, urinalysis testing, restrictions on attending licensed premises and consuming alcohol. Further, a curfew would be imposed to limit Mr Nelson's potential access to negative peers and high risk situations. Ms Cashmore stated that if released on a HRSO supervision order Mr Nelson would be closely monitored and supervised by members of the Risk Management Team, including police officers and community corrections officers and psychological services. The risk management of Mr Nelson would include regular and unscheduled home visits, liaison with community agencies and stakeholders, as well as continual review of his personal risk factors at Risk Management Meetings. As part of her report, Ms Cashmore provided a detailed proposed supervision order should the Court determine that Mr Nelson be subject to a HRSO supervision order.[72]
[72] Exhibit 1, Book of Materials, Community supervision assessment report of Ms Cashmore dated 19 October 2021, 508 - 511.

Assessment and conclusion

After considering the evidence in respect of the factors in s 7(3) of the HRSO Act, and finding that evidence to be acceptable and cogent, I am satisfied to a high degree of probability that Mr Nelson currently presents an unacceptable risk to the community and that he would commit a serious offence. Further, I am satisfied that it is necessary to make a restriction order to adequately protect the community.
Therefore, I am satisfied that a restriction order must be made under the HRSO Act to ensure the adequate protection of the community against that risk. Both Dr Wojnarowska and Ms Hasson gave cogent and reliable evidence that supports this finding.
I have made that finding for the following reasons. First, Mr Nelson has an extended history of chronic offending characterised by violence inflicted upon members of the community. Second, both Dr Wojnarowska and Ms Hasson expressed the opinion that Mr Nelson is at high risk of reoffending in a violent manner. I am of the view that the risk of violent offending in the future includes the risk of committing serious offences as defined in the HRSO Act. Mr Nelson's risk of reoffending is chronic. Third, Mr Nelson has significant outstanding treatment needs that are long standing and will require a significant and sustained effort to reduce his risk of reoffending in a violent manner. Fourth, Mr Nelson did not engage with either Dr Wojnarowska and Ms Hasson, reflecting his anti-authoritarian personality and history of not positively engaging with treatment programs. Fifth, the current PSSO will not sufficiently manage the risk. The PSSO is due to expire in 2023. It is necessary that Mr Nelson be subject to stringent supervision for a period extending beyond 2023. Ms Hasson expressed the opinion that the proper management of the risk of reoffending would be achieved under the HRSO Act rather than the current PSSO, given that a supervision order would provide support, monitoring, access to appropriate intervention and restrictions over an extended period of time. I accept that opinion.

Continuing detention order or supervision order

I must now decide whether Mr Nelson should be detained pursuant to a continuing detention order or released into the community under a supervision order.
The Court must choose the order that is the least invasive to Mr Nelson's liberty while ensuring an adequate degree of protection of the community.
In considering whether a supervision order will adequately protect the community, it is necessary to take into account any conditions which can be placed on a supervision order so as to ensure adequate protection of the community, the rehabilitation of Mr Nelson and his care and treatment and to ensure adequate protection of victims of offences committed by Mr Nelson.[73]
[73] High Risk Serious Offenders Act 2020 (WA), s 30(5).
I must also be satisfied on the balance of probabilities that Mr Nelson will substantially comply with the standard conditions of the order under s 29 of the HRSO Act. The onus is on Mr Nelson to satisfy the Court that he will so comply.
The evidence fully supports a finding that a supervision order will provide adequate protection of the community. In particular, Dr Wojnarowska and Ms Hasson expressed the opinion that the risk may be managed in the community by a supervision order.
I consider that this is a case where the protection of the community may be properly and satisfactorily advanced by a supervision order rather than a continuing detention order. Further, I am satisfied on the balance of probabilities that Mr Nelson will substantially comply with the standard conditions of a supervision order as set out under s 30 of the HRSO Act.
In my view, there are conditions that may be imposed under a supervision order that will provide adequate protection of the community. The conditions that are to be imposed are outlined in the Supervision Order, which is attached as Annexure One. The conditions are extensive and serve to manage the risk in the community.

Conclusion

For the above reasons, I have determined that it is necessary to make a restriction order in relation to Mr Nelson to ensure adequate protection of the community against the unacceptable risk that he will commit a serious offence. Further, I have determined that the risk of reoffending may be adequately managed in the community with the imposition of a supervision order for a period of five years. The terms of the supervision order are stated in Annexure One.

ANNEXURE ONE
SUPERVISION ORDER MADE BY THE HONOURABLE JUSTICE MCGRATH ON 15 DECEMBER 2021

Pursuant to s 48(1)(b) of the High Risk Serious Offenders Act 2020, the Court, having found that the respondent is a high risk serious offender within the meaning of s 7(1) of the High Risk Serious Offenders Act 2020, makes a supervision order in relation to the respondent, for a period of five years from 5 January 2022 being a date not earlier than 21 days from the date this Order is made, on the following conditions:

STANDARD CONDITIONS REQUIRED BY THE HRSO ACT

You, SIMON MILTON NELSON, must:

Report to a Community Corrections Officer (CCO) at the Northam Adult Community Corrections Centre within 48 hours of imposition of the Order and advise the officer of your current name and address.
Report to and receive visits from a CCO as directed by the Court.
Notify a CCO of every change of your name, place of residence, or place of employment at least 2 days before the change happens.
Be under the supervision of a CCO, which includes, complying with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32).
Not leave, or stay out of, the State of Western Australia without the permission of a CCO.
Not to commit a serious offence as defined in Section 5 of the High Risk Serious Offenders Act2020, during the period of the Order.
Be subject to electronic monitoring under section 31 of the High Risk Serious Offenders Act 2020.

ADDITIONAL CONDITIONS

Residence

Take up residence at [address redacted] and spend each night at that address or at a different address only if such different address is approved in advance by a CCO assigned to you.

Reporting to a CCO and supervision by a CCO

Report to, and receive visits from, a CCO at times and at places as directed by the CCO and comply with the lawful orders and directions of a CCO.
Disclose to the CCO the name and details of any paid or unpaid employment, education, training or volunteer work in which you intend to commence and allow this employment, education, training or volunteer work to be confirmed by a CCO.

Attendance at programs or treatment

Consult and engage with any psychiatrist, psychologist, counsellor, mentor, support service and/or support person nominated by a CCO, as directed by a CCO, including any programs designed to address your offending behaviour.

Reporting to WA Police

Report to the WA Police at times and at locations as directed by a CCO or WA Police.
If requested, permit police officers to enter and search your residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this Order and allow the seizure of any such items that the police officers believes to contravene the conditions of the Order.
Remain at your residence and/or vehicle when police officers conduct a search under 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, including confidential information.
Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history.

Restrictions on contact with Victims

Have no contact, directly or indirectly, with the victims of your current offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-offender Mediation Unit of the Department of Justice.
Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times.

Criminal conduct

Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments.
Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse Of Drugs Act 1981 applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014 and your use is in accordance with the instructions of the provider.

Curfew

Be subject to a curfew, pursuant to section 32 of the High Risk Serious Offenders Act 2020, such that you are to remain at and not leave your approved address as directed by a CCO from time to time.
When subject to a curfew under this order, present yourself at the front door or verge of your approved address, or speak by telephone, to any CCO or police officer or their agent monitoring your compliance with the curfew.
When subject to a curfew under this order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew.

Medication/Mental Health

Disclose to the CCO on the next occasion you report to that person or agency any medical practitioner you see or consult with, to allow for oversight and monitoring to occur regarding your treatment or proposed treatment.
Permit any medical practitioner, psychologist, psychiatrist or counsellor to advise the CCO immediately if they become aware, or suspect that you have ceased, or intend to commence take medication or undergoing pharmaceutical treatment contrary to the advice of a medical practitioner, or if you appear to have ceased to consult with that medical practitioner on such treatment.

Prevention of high risk situations

Not to possess, or consume, or purchase, 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.
Provide a valid sample pursuant to condition 27.
Not go or remain at any licensed premises with the exception of cafes, restaurants and sporting venues, unless permitted or required to do so for the following reasons:
a)For the purpose of averting or minimizing a serious risk of death or injury to yourself or another person.
b)For a purpose, and for a duration, approved in advance by a CCO.
c)On the order of a CCO or a police officer.
Not to remain in the presence of any person who you know, or ought to know, to be affected by prohibited drug, unless the identity of such person is approved in advance by a CCO.
Not to 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.
Report at your next contact with your CCO, the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship by you with any person.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice McGrath
15 DECEMBER 2021