The State of Western Australia v Pas [No 4] - [2023] WASC 404

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- PAS [No 4] [2023] WASC 404
CORAM:   WHITBY J
HEARD:   19 SEPTEMBER 2023
DELIVERED          :   19 SEPTEMBER 2023
PUBLISHED           :   25 OCTOBER 2023
FILE NO/S:   SO 13 of 2020 (formerly HRSO 4 of 2020)
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
PAS
Respondent

Catchwords:

Criminal Law - High risk serious offender - First review - Whether respondent remains a high risk serious offender - Whether continuing detention order should be affirmed or rescinded - Whether community would be adequately protected if the respondent released on supervision order

Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

Continuing detention order affirmed

Category: B

Representation:

Counsel:

Applicant	:	D McDonnell
Respondent	:	T Hager

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	T Hager

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 Hart [2019] WASC 4
PAS v The State of Western Australia [2009] WASCA 210
The State of Western Australia v ACW [No 3] [2022] WASC 41
The State of Western Australia v Corbett [No 5] [2017] WASC 115
The State of Western Australia v MAR [No 3] [2022] WASC 371
The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v PAS [No 2] [2021] WASC 59
The State of Western Australia v PAS [No 3] [2021] WASC 117

WHITBY J:

Overview and summary

On 15 June 2022, the Acting State Solicitor for the State of Western Australia applied in the name of the State of Western Australia (State) under s 64 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act), for the first review of a continuing detention order in relation to the respondent made by Hall J on 20 April 2021 (the CDO) as soon as practicable after 20 December 2022 (review application).
The hearing of the review application took place before me on 19 September 2023 (review hearing).
At the conclusion of the review hearing, I determined that the respondent continued to be a high risk serious offender (HRSO) because I was satisfied:
(1)by acceptable and cogent evidence, to a high degree of probability, that there is an unacceptable risk that the respondent may commit a serious sexual offence of the kind that he has committed previously; and
(2)that it was necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against that risk.
I also determined that the respondent had not satisfied the court, on the balance of probabilities, that he would comply with the standard conditions of a supervision order.
In those circumstances, I determined that the respondent's CDO must be affirmed. I indicated that I would publish detailed reasons. Those reasons follow.

Issues

The issues that are required to be determined in the review application are:
(1)Is the respondent a HRSO as defined in s 7(1) of the HRSO Act, having regard to the factors in s 7(3) of the HRSO Act? If the answer to this question is 'no', I must rescind the CDO.
(2)If the respondent is a HRSO, am I satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of a supervision order? If the answer to this question is 'no', I must affirm the CDO.
(3)If I am satisfied the respondent will substantially comply with the standard conditions of a supervision order, I must consider whether I should either affirm the CDO or rescind the CDO and make a supervision order (and in the latter case, also consider the appropriate conditions which should be imposed as part of that supervision order).

History of these proceedings

On 18 September 2020, the State applied for a restriction order pursuant to the HRSO Act in relation to the respondent.
On 10 November 2020, at a preliminary hearing, Allanson J, being satisfied that there were reasonable grounds for believing that the court might find that the respondent is a HRSO, made an interim supervision order (the ISO) pending the determination of the application.[1]
[1] The State of Western Australia v PAS [2020] WASC 405.
In the three months following his release on the ISO, the respondent breached the conditions of the ISO by using illicit drugs on a number of occasions. The State commenced contravention proceedings against the respondent pursuant to div 5 of the HRSO Act. On 4 March 2021, Quinlan CJ found that the contraventions had been proven and affirmed the ISO.[2]
[2] The State of Western Australia v PAS [No 2] [2021] WASC 59.
On 17 March 2021, the respondent was sentenced to a suspended imprisonment order in relation to three offences of contravening the ISO.
Following the contravention proceedings, the respondent further breached the ISO by use of illicit drugs. Those breaches led to charges against the respondent. The respondent was remanded in custody on those charges.
On 20 April 2021, Hall J declared the respondent to be a HRSO pursuant to the HRSO Act and determined that the respondent be detained in custody for an indefinite term for care, control and treatment.[3]
[3] The State of Western Australia v PAS [No 3][2021] WASC 117.
Also on 20 April 2021, the respondent was sentenced to a total effective sentence of 8 months' imprisonment in relation to six new offences of contravening the ISO and for breaching his suspended imprisonment order imposed on 17 March 2021.
On 15 June 2022, the State made the review application under s 64 of the HRSO Act. The respondent was initially listed to appear for the first statutory review in February 2023, although as a result of serving a term of 8 months imprisonment for contravention charges of the ISO, there were delays with the respondent's completion of the Intensive Sex Offender Treatment Program (ISOTP).
The respondent commenced the ISOTP in prison in December 2021.
The hearing of the review application was administratively vacated and relisted on 5 May 2023. Due to delays with completion of the ISOTP and provision of the completion report, the review application was administratively vacated and relisted again on 19 September 2023.

Factual background

Hall J detailed the facts relating to the respondent's personal history and offending in The State of Western Australia v PAS [No 3][2021] WASC 117 at [27] - [48]. A summary of the respondent's offending is as follows:
(1)Between 14 and 17 November 2006 the respondent committed a series of offences against his then de facto partner, the victim. At the time of these offences, the respondent had been using cannabis and methylamphetamines. He had become suspicious that the victim was being unfaithful.
(2)On 14 November 2006 the respondent restrained the victim and stabbed her with a metal dart in the upper left thigh area, left forearm and left wrist. The respondent dragged the dart across the victim's left breast. He carved initials and a derogatory phrase into the victim's skin. The respondent threatened to break the victim's jaw. The respondent punched the victim's nose with a closed fist causing facial numbness and loss of movement in the left arm. The respondent then penetrated the victim's vagina with his penis.
(3)On 15 November 2006 the respondent told the victim to suck his penis or he would 'cave her head in'. The respondent forced his penis into the victim's mouth. The victim was too scared to refuse. The respondent then told the victim to remove her pants and sit on his penis. She complied because she was frightened.
(4)On 16 November 2006 the respondent grabbed the victim's throat with two hands and strangled her, causing sever bruising. Later that day the respondent forcibly penetrated the victim's vagina with his penis.
(5)On 17 November 2006 the respondent forcibly penetrated the victim's vagina with his penis. The respondent behaved in a threatening manner and the victim was too scared to say no or resist. Over the course of the day he pushed, punched and kicked the victim, and on one occasion pushed material into her mouth preventing her from screaming.
(6)The respondent was charged with five counts of assault occasioning bodily harm and five counts of sexual penetration without consent. He was also charged with offences relating to other incidents, including three counts of common assault, one of breach of bail. The respondent pleaded guilty to the assaults and not guilty to the sexual offences. He was convicted of the sexual offences after a three-day trial and was sentenced to a total effective sentence of 12 years. His appeals against conviction and sentence were dismissed.
(7)The respondent was also convicted of the offence of aggravated common assault against the victim. Ten days before the above offending conduct, the respondent punched the victim in the head and threw a rock at her.
(8)The respondent was also convicted of the serious offence of armed robbery for offending on 24 February 2006. The respondent had gone to Woolworths and put some items into his backpack. As he tried to leave the store a security guard pinned him against the wall. The respondent sprayed pepper spray into the security guard's face. The respondent was sentenced a term of imprisonment of 3 years and 4 months backdated to commence on 13 December 2006.
(9)On 19 March 2002, the respondent was convicted of indecent assault. The victim (not the same victim as in the other offences) was 29 years old and the respondent was 26 years old. They were at the respondent's grandparents' home and the respondent pinned the victim down on a bed, pulled her underwear aside and rubbed his penis against her vagina until he ejaculated. The respondent threatened to hurt the victim if she resisted or if she told anyone.
(10)The respondent also has convictions for violent offences including assault occasioning bodily harm, common assault, aggravated common assault to prevent arrest, unlawful wounding and weapons offences. Some of the offences occurred when the respondent was on parole, supervision and while subject to a violence restraining order.

Findings on the restriction order application

Hall J was satisfied that the respondent was a HRSO and was not satisfied, on the balance of probabilities, that the respondent would substantially comply with the standard conditions of a supervision order. His Honour was not so satisfied for the following reasons:
This is principally because I am not satisfied that it is likely that he would comply with the standard supervision condition (given that supervision would inevitably include directions to abstain from drug use). In any event I am not satisfied that a supervision order would provide adequate protection for the community from the risk that respondent would commit further serious offences. There is a high likelihood that he would not comply with conditions regarding drug use, curfews and exclusion zones. It is also likely that he would fail to be frank and honest about any drug use. Such non-compliance would raise the risk of further offending. The likely nature of such further offending would be of the types the respondent has previously committed. That risk includes serious sexual offending. The degree and nature of the risk is such that there are currently no conditions that would adequately protect the community.[4]
[4] The State of Western Australia v PAS [No 2] [2021] WASC 59 [105].
His Honour stated that every effort should be made to ensure that the respondent obtained the following treatment:
1.Individual counselling at least weekly of one hour's duration with a psychologist with whom he is able to build up a rapport and who will ensure that the treatment needs identified in the reports are addressed in a systematic way.
2.Consideration be given to transferring the respondent to a prison at which he can undertake the ITSOP.
3.Consideration be given to transferring the respondent to Casuarina Prison so that he can take part in the [Solid Steps] program at the Mallee Rehabilitation Centre.[5]
[5] The State of Western Australia v PAS [No 2] [2021] WASC 59 [112].

First review of the CDO

Pursuant to s 64 of the HRSO Act, when an offender is subject to a CDO, the State must apply for the offender's detention under the order to be reviewed to ensure that reviews are carried out at the times specified in s 64(2). In this case, the first annual review is required to be carried out as soon as practicable after 20 December 2022.
For reasons outlined above, 19 September 2023 was the earliest date practicable to conduct the review hearing in this case.

Legal principles and statutory framework

The object of the review process was articulated by Hall J in The State of Western Australia v Corbett [No 5]:
The clear intention of the review process is to allow for the possibility of a change of circumstances. Detention under the [Dangerous Sexual Offenders Act 2006] DSO Act is not a punishment for a past offending: 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 adequately managed in the community, then the continuing need for detention must be considered … It does not follow from this that a court conducting an annual review is bound by the factual findings made at previous hearings. In practice, however, there is usually little prospect that expert evidence on a review will call into question the previous finding that the respondent was a serious danger to the community ...
It is a significant thing to deprive a person of his liberty, not for something he has done but for something that he might do in the future. In order to justify detention on these grounds the evidence must be acceptable and cogent and establish the existence of a serious danger to the community to a high degree of probability: s 7(2) DSO Act. Such a finding requires satisfaction that there is an unacceptable risk that the person would commit a serious sexual offence if not placed under a supervision order or detained.
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 by a supervision order. There is also the possibility that the risk may increase because of a failure of treatment or a relapse into deviant thinking.
The justification for making a continuing 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 prison authorities to facilitate change by offering programmes 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 draconian effect of imprisoning people for crimes that they have not committed. Reviews are not, therefore, a mere welfare check: 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 ... (citations omitted).[6]
[6] The State of Western Australia v Corbett [No 5][2017] WASC 115 [8] - [13].
On review:
(1)the court must determine whether an offender remains a HRSO; that is, whether 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.[7] The State has the onus of satisfying the court that an offender remains a HRSO;[8]
(2)if the court is not so satisfied, the CDO must be rescinded;
(3)if the court determines that the offender is a HRSO, it must either affirm the CDO, or, subject to s 29, rescind the CDO and make a supervision order;[9]
(4)the court must make its own independent assessment of whether the offender is a HRSO and if so, whether the CDO should be affirmed, however the court is entitled to have regard to and given weight to the decision in the original application;[10]
(5)in deciding whether to affirm the CDO or rescind it and make a supervision order, the paramount consideration is the need to ensure adequate protection of the community;[11]
(6)the court must assess whether the risk of offending is reduced to a reasonably acceptable level that ensures adequate protection of the community;[12]
(7)in order to make a supervision order the court must be satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order. The offender bears the onus of establishing this to the requisite standard.[13] Fiannaca J in Director of Public Prosecutions (WA) v Hart[14] at [39] - [52] set out the approach to be taken in determining whether an offender 'will substantially comply' with the standard conditions of the order. I adopt that approach.
[7] HRSO Act s 68, s 7(1).
[8] HRSO Act s 7(2).
[9] HRSO Act s 68.
[10] The State of Western Australia v ACW [No 3] [2022] WASC 41 [27]; The State of Western Australia v MAR [No 3] [2022] WASC 371 [27].
[11] HRSO Act s 68(2).
[12] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33].
[13] HRSO Act s 29.
[14] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 (Hart).
On a review under s 66 of the HRSO Act, the court is required to consider whether the offender 'remains a HRSO'. If the court does not find that the offender remains a HRSO, then it must rescind the CDO. Conversely, if the court does find that the offender remains a HRSO it must either affirm the CDO or rescind the CDO and make a supervision order.
The definition of the term 'HRSO' is contained in s 7(1) of the Act, which 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.
A 'restriction order' is a 'continuing detention order' or a 'supervision order'.[15] A 'continuing detention order' is 'an order that the offender be detained in custody for an indefinite term for control, care or treatment'.[16] A 'supervision order' 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'.[17] The standard conditions of a supervision order include the requirement that the offender not commit a serious offence during the period of the order.[18]
[15] HRSO Act s 3.
[16] HRSO Act s 26.
[17] HRSO Act s 27.
[18] HRSO Act s 30(2)(f).
Section 7(3) of the HRSO Act specifies the matters that the court must have regard to in deciding if an offender is a HRSO for the purposes of s 7(1). The matters are as follows:
(1)any report prepared under s 74 of the HRSO Act for the hearing of the application, and the extent to which the offender cooperated in the examination required by that section;
(2)any other medical, psychiatric, psychological, or other assessment relating to the offender;
(3)information indicating whether or not the offender has a propensity to commit serious offences in the future;
(4)whether or not there is any pattern of offending behaviour by the offender;
(5)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;
(6)whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;
(7)the offender's antecedents and criminal record;
(8)the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;
(9)the need to protect members of the community from that risk; and
(10)any other relevant matter.

Evidence on the application

Pursuant to s 67 of the HRSO Act, the Chief Executive Officer of the relevant Department (the Department of Justice) must engage one or more qualified experts to prepare reports in accordance with s 74 to be used on the review.
Pursuant to s 84(5) of the HRSO Act, in this review hearing the court may receive into evidence:
(a)any document relevant to the antecedents or criminal record of the offender; or
(b)anything relevant contained in the official transcript of any relevant proceeding against the offender; or
(c)any relevant material that was tendered to the court, or that informed the court, in a relevant proceeding against the offender; or
(d)any relevant material of the kind mentioned in section 7(3) relating to the offender.
At the review hearing, the State tendered a book of materials comprising of four volumes - three dated 5 December 2022 and the fourth dated 7 September 2023. They are exhibits 1.1 - 1.4.
The first three volumes of materials consisted of background material which had been prepared for the purposes of earlier applications. The material included the respondent's criminal record, transcript and records relating to the respondent's previous offences and criminal hearings, prison records and medical reports.
The final volume included material specifically prepared for this application. This material included:
(1)ISOTP Completion Report dated 4 May 2023;
(2)Treatment Progress Report of Caris Hamlett-Waller dated 1 June 2023;
(3)Desktop Spatial Analysis dated 7 September 2023;
(4)Treatment Progress Report of Dr Katrine Turoy-Smith dated 8 August 2023;
(5)Psychiatric Report of Dr Peter Wynn Owen dated 3 September 2023; and
(6)Community Supervision Assessment of Katrina Czechowski.
The State called Dr Wynn Owen, Dr Turoy-Smith and Ms Czechowski to give oral evidence at the hearing of the review application.
The respondent elected not to give or call any evidence.
I will now consider the various matters specified in s 7(3) of the HRSO Act.

Matters to be considered pursuant to s 7(3) HRSO Act

Any report prepared under s 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section - s 7(3)(a) HRSO Act

Evidence of Dr Peter Wynn Owen (Forensic Psychiatrist)

Dr Wynn Owen is a qualified expert within the meaning of the HRSO Act.[19] Dr Wynn Owen previously interviewed and assessed the respondent for the purposes of the final hearing. For the purposes of this application, Dr Wynn Owen interviewed the respondent on 15 August 2023 and prepared a report dated 3 September 2023.[20]
[19] HRSO Act s 3; Book of Materials vol 4, page 1315 [2].
[20] Book of Materials vol 4, page 1315 - 1330.
Dr Wynn Owen is a medical practitioner registered with the Medical Board of Australia as a generalist and a medical specialist (Psychiatrist). He is a Fellow of the Royal Australian and New Zealand College of Psychiatrists (RANZCP) and an accredited member of the RANZCP Faculty of Forensic Psychiatry. Dr Wynn Owen, as a consultant forensic psychiatrist, has regularly provided numerous reports and expert testimony in courts for more than 19 years.[21]
[21] Book of Materials vol 4, page 1315 [2].
Dr Wynn Owen expressed the opinion that the respondent was cooperative at the interview, appeared relaxed and had normal eye contact. Dr Wynn Owen said that the respondent's mood was stable and his speech was of normal rate, volume and syntax and he also appeared alert and his attention and concentration was normal. Dr Wynn Owen expressed the opinion that the respondent showed no indications of cognitive impairment.[22]
[22] Book of Materials vol 4, page 1323 - 1324 [119] - [121].
Dr Wynn Owen reported that the respondent said at the interview that 'he had learned, through participation in ISOTP, that the victim of [the] index offending did not consent to their sexual contact, although she did not tell him at the time, and therefore he now accepted that he was guilty of sexual penetration without consent'.[23]
[23] Book of Materials vol 4, page 1322 [94].
Dr Wynn Owen is of the opinion that the respondent did not, however, express remorse for the violent or sexually violent index offences,[24] although he did acknowledge that his intoxication may have contributed to the offences and that he now understands that this 'affects your desires'.[25]
[24] Book of Materials vol 4, page 1322 [94]. Dr Owen did note that the respondent was not specifically questioned about remorse at the interview.
[25] Book of Materials vol 4, page 1322 [95].
Dr Wynn Owen reported that the respondent said that he had learned through ISOTP, through listening to feedback, that his posture, vocal tone and facial expressions may affect others. Dr Wynn Owen reported that the respondent said that he had often been perceived by others as angry and intimidating and that, in his opinion, his interactions have improved.[26]
[26] Book of Materials vol 4, page 1322 [97].
Dr Wynn Owen reported that the respondent told him that he hoped to return to live with his mother and that his mother has arthritis in her hands and she would need help. Dr Wynn Owen reported that the respondent is also hopeful on becoming eligible for Homeswest, having been on the waiting list for approximately 11 years. Dr Wynn Owen reported that the respondent said he intended to participate in activities at a local community cultural centre run by his uncle.[27]
[27] Book of Materials vol 4, page 1323 [105] - [107].
Dr Wynn Owen reported that the respondent told him he had no recent thoughts of self-harm or suicide although the respondent did acknowledge that this had occurred occasionally over the past 2 years.[28]
[28] Book of Materials vol 4, page 1323 [111].
Dr Wynn Owen notes that the respondent has returned four positive drug tests (two for cannabis and two for buprenorphine) in July 2023 and the respondent acknowledged use of buprenorphine (confirmed by positive result) on at least one occasion since.[29]
[29] Book of Materials vol 4, page 1318 [39] - [44].
Dr Wynn Owen noted that the respondent reported normal levels of sexual function and masturbation and that the respondent said he would like to find someone when released, but that he would not actively seek out a relationship. Dr Wynn Owen noted that the respondent indicated if he had an urge for sexual contact he would 'maybe see a sex worker'.[30]
[30] Book of Materials vol 4, page 1323 [113] - [114].
Dr Wynn Owen stated the respondent indicated that he would continue with psychological treatment whether in the community or in detention.[31]
[31] Book of Materials vol 4, page 1323 [116].
Dr Wynn Owen diagnosed the respondent with:
(1)substance abuse disorder (methamphetamine; cannabis; opiates); and
(2)antisocial personality disorder.[32]
[32] Book of Materials vol 4, page 1324 [122].
Dr Wynn Owen undertook an assessment of the respondent's risk of serious re-offending using the Static-99 and VRAG-R assessment tools. Static-99 is an actuarial tool that is intended to position offenders in terms of their relative degree of risk of sexual recidivism.[33] The VRAG-R is an actuarial tool designed to assess the likelihood of violent or sexual offending. Dr Wynn Owen assessed the respondent's score on the Static- 99 as 'Above Average Risk'[34] and on the VRAG-R as being in the high risk category.[35]
[33] Book of Materials vol 4, page 1324 [125].
[34] Book of Materials vol 4, page 1324 [127].
[35] Book of Materials vol 4, page 1324 [130] - [131].
Dr Wynn Owen undertook a review of the respondent utilising the Risk for Sexual Violence Protocol (RSVP) and found that the following risk factors are present in the respondent:
(1)chronicity of sexual violence;
(2)diversity of sexual violence;
(3)escalation of sexual violence;
(4)physical coercion in sexual violence;
(5)psychological coercion in sexual violence;
(6)extreme minimisation or denial of sexual violence;
(7)attitudes that support or condone sexual violence;
(8)problems with self-awareness
(9)problems with stress or coping;
(10)problems resulting from child abuse (probably/partially present);
(11)psychopathic personality disorder;
(12)problems with substance abuse;
(13)problems with intimate relationships;
(14)problems with non-intimate relationships;
(15)problems with employment;
(16)non-sexual criminality;
(17)problems with planning;
(18)problems with treatment; and
(19)problems with supervision.
Dr Wynn Owen summarised the respondents RSVP as follows:
The respondent presents a high risk of future serious offending of a sexual nature if released unsupervised. His risk of future sexual offending is particularly associated with the presence of psychopathic personality characteristics and the dynamic risk factors of lack of self-awareness and substance use. There is a history of escalation of sexual violence in his sexual offending such that in my opinion the most likely repeat offence would parallel index offending rather than the 2001 Indecent Assault offence.[36]
[36] Book of Materials vol 4, page 1328 [173].
Dr Wynn Owen's opinion is that the respondent, if not subject to a restriction order, continues to present a high risk of serious sexual offending. This is reflected in his results of the risk assessment tools described above.
Dr Wynn Owen expresses the opinion that the respondent's personality, lack of self-awareness, problems with stress and coping and cognitive distortions (in particular, those relating to women) are relevant to his risk of future offending. Dr Wynn Owen is of the opinion that this underlying ongoing risk is elevated significantly by methylamphetamine use, which is likely to exaggerate existing personality characteristics, increase impulsivity and aggressiveness and reduce capacity to manage emotion and basic drives.[37]
[37] Book of Materials vol 4, page 1329 [185].
Dr Wynn Owen recommends the respondent continues individual treatment, together with what he has learnt in the ISOTP, to help improve his self-awareness and self-management and skills in relation to communication and relationships.[38]
[38] Book of Materials vol 4, page 1330 [188(i)].
If the respondent is to remain in detention, Dr Wynn Owen recommends he participate in the Mallee Unit 'Solid Steps' drug rehabilitation program at Casuarina Prison.[39]
[39] Book of Materials vol 4, page 1330 [188(ii)].
In the event the respondent is released to community supervision, Dr Wynn Owen recommends the order should include a supervision condition with reflects high risk scenarios situations - substance abuse, association with criminal peers and intimate relationships and that it should also be constructed to recognise the respondent's unreliability to self-report. Dr Wynn Owen recommended an order with a period of six years.[40]
[40] Book of Materials vol 4, page 1330 [188(iii) & (iv)].
At the hearing, Dr Wynn Owen gave evidence that he had the following concerns in relation to the respondent's cannabis and opiate use:
I have a great deal of concern because I believe that the pattern of his use, from his earliest use of those substances, has been to manage stress, and it would demonstrate that he is not coping with stressful situations. And it's in the context of those stresses that he has offended, and it's in the context of those stresses and that difficulty with stress management that he has also gone on to use methamphetamine, which has elevated his risk of offending.[41]
[41] ts 165.

Dr Wynn Owen was asked whether the respondent was aware of the importance of abstaining from drug use in the lead up to the hearing. Dr Wynn Owen said:
I think [the respondent] is aware of the significance. However, at times of stress he's unable to manage the stress itself, and in that moment is unable, notwithstanding the consequences, to prevent himself from using. And that probably reflects not having other skills at his command to deal with the stress or the problems that he's dealing with. And it's quite notable that, if anything, his substance use has increased in the last short period of time running up to this hearing - clearly a time of extreme stress for anyone.[42]
[42] ts 166.
Dr Wynn Owen gave evidence that the respondent's likelihood of substance use in the community, if placed on a supervision order, would be high due to his substance use in prison and the stress of adjusting to the onerous conditions of a supervision order.[43]
[43] ts 167.
When asked for his opinion of the likelihood of the respondent being able to comply with supervision order conditions, Dr Wynn Owen expressed the opinion that the respondent would struggle to comply with such conditions due to his 'antisocial traits and tendencies' and his antisocial lifestyle. Dr Wynn Owen noted that during, the short period of time the respondent was released on the ISO, the respondent had difficulty adjusting and that the respondent, even when 'breached for substance use early on and then returned to the community, he breached again using substances'.[44]
[44] ts 168 - 169.
Dr Wynn Owen gave evidence during cross examination that 'treatment gains can be lost quite quickly if not reinforced'. Dr Wynn Owen was of the view that it was important for the respondent to continue to engage in counselling with a forensic psychologist as this would give the respondent the best opportunity to make sustained gains from the ISOTP which he had completed.[45]
[45] ts 172 - 173.
Dr Wynn Owen also identified that the respondent's relationship with his mother and with other members of his family is a protective factor.[46] When asked whether the spatial analysis provided in relation to the respondent's mother's address was of concern, Dr Wynn Owen stated that there needed to be 'a balance of the risks and the protective factors' associated with living with his mother.[47]

Evidence of Dr Katrine Turoy-Smith (Forensic Psychologist)

[46] ts 171

[47] ts 179.

Dr Turoy-Smith is a forensic psychologist with the Forensic Psychological Assessment Team at the Department of Justice. She has completed a Doctor of Psychology (Forensic).[48] Dr Turoy-Smith interviewed the respondent on 28 June 2023 and 26 July 2023, for a total of 2 hours and 40 minutes.[49]
[48] Book of Materials vol 4, page 1310.
[49] Book of Materials vol 4, page 1297 [5].
Dr Turoy-Smith reported that the respondent presented as polite and cooperative and engaged well in the assessment process. Dr Turoy‑Smith reported that the respondent presented in a stable mood and responded well to questions and that he was insightful and appeared to engage in a genuine manner.[50]
[50] Book of Materials vol 4, page 1303 [24].
During the initial assessment interview, Dr Turoy-Smith questioned the respondent regarding his use of cannabis after completing the ISOTP. The respondent reported to Dr Turoy-Smith that his use of cannabis was related to the anniversary of his father's death and that he felt isolated and was struggling with grief. He reported his use of buprenorphine was as a result of antisocial attitudes and frustration at being detained on the CDO.[51]
[51] Book of Materials vol 4, page 1299 [10].
Following the initial interview and before the second interview, the respondent again tested positive to buprenorphine. He told Dr Turoy‑Smith this was due to increased external stressors and was an attempt to manage his emotions.[52]
[52] Book of Materials vol 4, page 1299 [11].
When questioned by Dr Turoy-Smith about his substance use while in custody and on the ISO, the respondent reported that his, use whilst subject to the ISO, was widely due to boredom and that he also felt overwhelmed in the community and resentful about potential designation as a HRSO. Further, the respondent disclosed to Dr Turoy‑Smith that his swift return to custody had served as a warning for him and highlighted the importance of complying with his order, communicating difficulties, and maintaining a focus on prosocial goals.[53]
[53] Book of Materials vol 4, page 1306 [34].
Dr Turoy-Smith reported that the respondent indicated he would be open to participating in the Solid Steps program at the Mallee Rehabilitation Centre and that the respondent also disclosed he would be willing to attend drug counselling and other services if required.[54]
[54] Book of Materials vol 4, page 1306 - 1307 [37].
Dr Turoy-Smith said that the respondent told her that, if released to a supervision order, he would live with his mother, who is his primary community support, until he obtained employment and had the resources to live independently. The respondent told Dr Turoy-Smith that his sister is also a support and that he has a connection with one of his sons and four grandchildren, having contact with them through his mother.[55]
[55] Book of Materials vol 4, page 1307 [38].
In relation to employment, the respondent informed Dr Turoy‑Smith that he would seek assistance from Uniting Care West to secure employment. The respondent reported he has worked in gardening/landscaping, bakery and undertaken cultural studies and obtained a Certificate I and II in Hospitality whilst in custody.[56]
[56] Book of Materials vol 4, page 1307 [39].
When questioned about challenges he may face in the community, the respondent identified boredom and reintegrating into society generally as potential challenges. Dr Turoy-Smith states that the respondent acknowledges he did not take the ISO seriously and that he does not want to return to prison, it is a deterrent/motivation for him. In addition, he stated that, other than the substance use, he found the other conditions of the ISO manageable.[57]
[57] Book of Materials vol 4, page 1307 [40].
Dr Turoy-Smith notes that, although the respondent has completed the ISOTP and attended over 50 individual psychological intervention sessions, his skills and self-awareness are newly emerging and variable. He continues to present with ongoing treatment needs associated with substance use, emotional regulation, consent, intimacy, attitudes toward women, hostile attributions, and interpersonal relationships.[58]
[58] Book of Materials vol 4, page 1307 [41].
During both assessment interviews, Dr Turoy-Smith expressed the opinion that the respondent demonstrated a robust understanding of his risk factors, high-risk scenarios, and the strategies he has learned to try manage these. Dr Turoy-Smith notes that there has been a significant shift in the respondent's presentation and an improvement in his understanding of the index offences. There has also been a change in relation to the respondent's attitude toward violence and women. Dr Turoy-Smith is of the opinion that, whilst participating in ISOTP, there was some evidence of abstinence by the respondent from substance use, but that the respondent did, however, resort to substance use on at least six occasions.[59]
[59] Book of Materials vol 4, page 1308 [42].
Dr Turoy-Smith identified that the respondent presents with longstanding substance use issues, which have featured in his offending behaviour, prison charges and the contravention of his ISO.[60]
[60] Book of Materials vol 4, page 1308 [43].
Dr Turoy-Smith also notes that the respondent continues to present with treatment needs in relation to relationship issues and core beliefs that influence his interpersonal interactions.[61]
[61] Book of Materials vol 4, page 1308 [44].
Overall, Dr Turoy-Smith considers that the respondent has learned the skills to think differently but that he struggles with the implementation of these new skills, particularly when under stress/distress.[62] His susceptibility to substance use and relationship issues remain the principal risk factors for future offending, due to his overreliance on illicit substances for coping with distress and his entrenched beliefs related to mistrust and abandonment.[63] He continues to present with an array of further outstanding treatment needs, and requires ongoing access to consistent psychological intervention to adequately address these needs.[64]
[62] Book of Materials vol 4, page 1309 [45].
[63] Book of Materials vol 4, page 1309 [46].
[64] Book of Materials vol 4, page 1303 [23].

Dr Turoy-Smith noted that the respondent may be eligible for the Mallee Rehabilitation Centre program given that he has completed the ISOTP. However, for prisoners to be considered for the program, they are required to have a minimum of nine months remaining on their sentence as the program length is approximately nine to twelve months. Therefore, the respondent cannot not be assessed for suitability until after the first review hearing.[65] Dr Turoy-Smith also noted that the respondent may have 'some ambivalence about entry into a residential rehabilitation program both in custody and the community'.[66]
[65] Book of Materials vol 4, page 1309 [46].
[66] Book of Materials vol 4, page 1309 [46].
Dr Turoy-Smith noted that whilst a residential substance use rehabilitation program would likely provide the respondent with the best opportunity to continue to address his substance use treatment needs within a supportive, controlled, environment, there are probable barriers to acceptance into such a program, including his offending history and supervision order conditions. If a residential rehabilitation program is not available, Dr Turoy-Smith recommended that the respondent engage in individual and/or group alcohol and drug counselling with an appropriate organisation (e.g. Wungening Aboriginal Corporation, Holyoake, Cyrenian House), along with continued individual psychological intervention with Ms Hamlett‑Waller.[67]
[67] Book of Materials vol 4, page 1309 [47].
Dr Turoy-Smith gave oral evidence at the hearing. Dr Turoy‑Smith informed the court that, to the best of her knowledge, Mallee Rehabilitation Centre has an intake which occurs around the middle of every month.[68] The program runs for a minimum of nine months with the potential for it to continue to 12 months.[69]
[68] ts 180.
[69] ts 182.
When asked whether the respondent could continue to engage in individual counselling whilst in the Mallee Rehabilitation Centre, Dr Turoy-Smith said:
My understanding is that in engaging in that therapeutic community that it's contraindicative therapeutically to then be engaged in additional treatment besides that. And it's certainly my understanding from consultation with his treating clinician that it wouldn't be her intention to continue during that time. Whether that shifts and whether she decides that she would continue some sort of maintenance, whether that's just once every couple of months or something like that, as a check-in, I - I couldn't say.[70]
[70] ts 181.
Dr Turoy-Smith indicated that once the respondent had completed the Solid Steps program at Mallee Rehabilitation Centre, there is potential for him to engage in a pathways program. Dr Turoy-Smith also said that the respondent's security rating could be reviewed and that he may be moved to a minimum-security prison.[71]

Evidence of Ms Caris Hamlett-Waller (Counselling Psychologist)

[71] ts 182

Ms Hamlett-Waller is the respondent's treating psychologist.
The respondent, as at 10 August 2023, had completed a total of 52 sessions with Ms Hamlett-Waller.[72]
[72] Book of Materials vol 4, page 1311.
Ms Hamlett-Waller prepared a report dated 1 June 2023 (which covered 9 sessions between 8 November 2022 and 24 May 2023, two of which occurred after the completion of the ISOTP) (June Report) and a report dated 10 August 2023 (which covered seven further sessions between 14 June 2023 and 27 July 2023) (August Report).
In the June Report, Ms Hamlett-Waller describes the respondent's ongoing treatment plan and recommendations as follows:
Treatment Plan and Recommendations
16.[The respondent] has now completed his ISOTP. During this time, he engaged in concurrent individual intervention via video link however issues with the technology were experienced on occasion. Despite gains reported during his engagement, [the respondent] appeared to regress to entrenched beliefs related to persecution, mistrust and injustice after learning his Court date have been adjourned, which precipitated his lapse to substance use to cope with his dysphoric emotions. With an opportunity to reflect after the fact, he appeared to demonstrate some insight into this pattern of behaviour. However, he experienced destabilisation and was unable to implement discussed strategies shortly after the completion of his ISOTP. This highlights the difficulties he experienced, common for people with personality disorders like [the respondent]'s, in being able to implement cognitively based strategies (such as problem solving, reality testing and perspective taking) when in a heightened state of arousal. [The respondent]'s ability to reduce his emotional arousal during heightened distress is an ongoing target, to facilitate his ability to utilise learned strategies when they are most required.
17. Despite his lapse, [the respondent] informed he continues to strive for abstinence from all substances and he believed this was an achievable goal. His abstinence and relapse prevention plan continues to be an active treatment target and ongoing urinalysis would assist in monitoring and supporting such.
18. Ongoing treatment is required in the areas of emotional regulation, drug use, consent, intimacy, hostile attributions and interpersonal relationships. The ISOTP completion report documented several areas where gains are emerging however further exploration and consolidation would be of use. These outstanding areas will be discussed with [the respondent] to assist in developing future intervention targets once he is relocated to a metropolitan prison and face to face intervention can resume. Other areas as outlined in the expert reports not yet addressed will be discussed to determine priorities areas in the months remaining until his next appearance before the Perth Supreme Court, 19/09/2023. It is acknowledged intervention it likely to be protracted given [the respondent]'s risks, needs and responsivity factors related to personality.[73]
[73] Book of Materials vol 4, page 1294 [16] - [18].
Since the June Report, the respondent returned a positive result to buprenorphine. In the August Report, Ms Hamlett-Waller notes:
He denied using the substance until after he was charged and sessions again focussed on relapse prevention. He apportioned blame to his “trust issues” with the author including persecutory and suspicious beliefs (discussed further below) as well as feeling “stressed” in relation to session content and an assessment interview. He recalled how he minimised and justified his use and further disclosed he attempted avoid detection through dilution.[74]
[74] Book of Materials vol 4, page 1312 [1].
On another occasion, the respondent self-reported use of illicit substances. The respondent indicated to Ms Hamlett-Waller that on one occasion he saw others in the unit using it and that he 'was out for good time' and wanted to 'be on their level'. He said he was unable to abstain as 'the cravings got a hold of me'.[75]
[75] Book of Materials vol 1, page 186 [9].
Ms Hamlett-Waller noted the respondent fluctuated in his opinion in relation to his substance use whilst in custody. He would deny his use was an issue and then acknowledge it was an issue, yet not make any changes, or active steps to change.[76]
[76] Book of Materials vol 4, page 1312 [2].
It is noted within the August Report that the respondent's substance use is entrenched. Lapses are considered common, and changes require time and rehearsal.[77]
[77] Book of Materials vol 4, page 1312 [3].
During the respondent's engagement in the ISOTP, Ms Hamlett-Waller reported that the respondent 'refused to acknowledge or engage in any discussion about his previous sexual offences' and that the respondent maintains his past offences were not relevant.[78] Ms Hamlett-Waller also reported that the respondent's acceptance of the index offending fluctuated to include denial which appeared to be a regression from his level of acceptance as indicated in the ISOTP Completion Report.[79]
[78] Book of Materials vol 4, page 1313 [10].
[79] Book of Materials vol 4, page 1314 [13].
In the August Report, Ms Hamlett-Waller expressed the opinion that the respondent may continue to fluctuate between denying his use as an issue, acknowledging it as an issue, however yet to make changes and actively taking steps to make changes.[80]
[80] Book of Materials vol 4, page 1312 [2].
In the August Report, Ms Hamlett-Waller expressed the opinion that the respondent's substance misuse is an on-going treatment need and that the respondent's interpersonal interactions continued to be influenced by his persecutory beliefs and attitudes, consistent with his anti-social personality disorder diagnosis.[81] Ms Hamlett-Waller expressed the view that the respondent may benefit from group intervention for his entrenched substance misuse (such as Mallee Rehabilitation Centre if in custody).[82]

Community Supervision Assessment dated 5 September 2023 (Ms Katrina Czechowski (Senior Community Corrections Officer))

[81] Book of Materials vol 4, page 1313 [14].

[82] Book of Materials vol 4, page 1313 [15].

Ms Czechowski is a Senior Community Corrections Officer and produced a report dated 5 September 2023 which summarises the respondent's treatment intervention in custody, recent prison behaviour, his circumstances relating to accommodation and support, behaviours to be managed, and strategies to manage offending behaviours.
Ms Czechowski reported that at his interview with her, the respondent minimized responsibility for his offending.[83]
[83] Book of Materials vol 4, page 1333.
The report concludes with 41 proposed conditions of a supervision order should the court consider the respondent suitable for one.[84]
[84] Book of Materials vol 4, page 1339 - 1343.
At the hearing, Ms Czechowski confirmed the Mallee Rehabilitation Centre is a voluntary program. A participant must consent to participate in the program.[85]
[85] ts 156.
At the hearing, Ms Czechowski confirmed that the respondent has an open and active application with the Department of Housing and that he was up to date with his annual review.[86]

Any other medical, psychiatric, psychological or other assessment relating to the offender (s 7(3)(b) HRSO Act)

ISOTP Completion Report dated 4 May 2023

[86] ts 157.

The following dynamic criminogenic targets were identified for the respondent to address in the ISOTP[87]:
Self-Regulation: Develop his capacity to express and regulate his emotions, reduce impulsivity, improve communication and problem solving, understand his maladaptive coping strategies and replace with new pro-social coping strategies.
Relationships: Increase capacity for building emotionally intimate relationships and personal support networks.
Sexual Issues: Develop knowledge of consent and challenge hostile views of women.
Cooperation with supervision: Challenge distorted thinking about authority and replace with prosocial beliefs and attitudes.
[87] Book of Materials vol 4, page 1281.
The facilitators of ISOTP Completion Report make the following observations:
(1)the respondent initially presented as argumentative, defensive, domineering and at times aggressive. However, after receiving feedback about this behaviour, he was able to self-reflect and shift his communication and demeanour in group and grow in self-awareness. He presented as more assertive by engaging in perspective taking, having a softer tone, sitting back in his chair and slowing down;[88]
(2)Over the course of the program the respondent made a significant shift in his engagement and motivation as well as demonstrating treatment gains through an improved ability to receive feedback and self-reflect. This resulted in visible changes in behaviour in group as well as increased self-awareness around treatment areas related to beliefs, communication, relationship issues and self-regulation;[89]
(3)In relation to self-regulation, the respondent was still at the early stages of developing self-awareness. He had a reasonable understanding of different coping strategies and was open to the problem-solving model presented;[90]
(4)In relation to relationship issues, the respondent gained awareness of his relationship deficits, particularly around his aggressive communication style, and acknowledged that reputation is important to him and linked this to his offending. He demonstrated an emerging skill to perspective take and show empathy about how others experience his behaviour. After feedback, he dramatically changed his interactions with others to be calmer, measured, and assertive rather than aggressive in his communication, and gained awareness and skills in managing conflict with other group members. He recognised that beliefs about women played a role in his offending and how his insecurity and fear of rejection are linked to his use of control, intimidation, and violence in relationships. He also identified a need to challenge some of his negative core beliefs and demonstrated an emerging understanding of the strategies to do so;[91]
(5)in relation to sexual issues, the respondent exhibited an emerging understanding of the victim's experiences and started to consider how his sex offending was non-consensual. He also began to acknowledge how his beliefs regarding entitlement to sex in a relationship were related to his offending;[92]
(6)in relation to cooperation with supervision, the respondent 'regularly demonstrated behaviours and attitudes consistent with a disregard for authority and rules often violating boundaries', and 'was observed regularly to push boundaries and break rules, facilitators commenting that these behaviours are consistent with his behaviours in the community'. The respondent denied or minimised such issues when raised with him during the program. Facilitators recommend that his 'unhelpful thinking and beliefs about authority … would benefit from further work';[93]
(7)although the respondent is said to have made significant treatment gains, he did struggle with comprehension of concepts introduced in group and required time to come to understand these concepts. He will need ongoing therapeutic intervention and supervision to ensure that his gains are maintained outside of the supportive environment of the group.[94]

Desktop Spatial Analysis returned 6 September 2023

[88] Book of Materials vol 4, page 1289.

[89] Book of Materials vol 4, page 1288.

[90] Book of Materials vol 4, page 1282 - 1283.

[91] Book of Materials vol 4, page 1283 - 1285.

[92] Book of Materials vol 4, page 1285 - 1286.

[93] Book of Materials vol 4, page 1286 - 1287.

[94] Book of Materials vol 4 page 1289.

If considered suitable for a supervision order, the respondent intends to live with his mother in Mirrabooka. His mother has confirmed her support for the respondent to live with her.[95]
[95] Book of Materials vol 4, page 1335.
The Desktop Spatial Analysis conducted by the Western Australia Police Force establishes that two of the respondent's victims live within 2kms of the respondent's proposed accommodation. In addition, a regular visitor to the house is noted as a 'known prohibited drug user'.[96] Further, the respondent's mother has previously been the protected person in a violence restraining order against the respondent and the respondent breached that violence restraining order.[97]

Information indicating whether or not the offender has a propensity to commit serious offences in the future (s 7(3)(c) HRSO Act) and whether or not there is any pattern of offending behaviour by the offender (s 7(3)(d) HRSO Act)

[96] Book of Materials vol 4, page 1295.

[97] Book of Materials vol 4, page 1295.

The respondent's offending history is extensive and sustained. His first offence occurred when he was 17 years old and the only significant gaps in his offending history are when he was in custody. He has been convicted of eight 'serious offences' as defined in the Act. As noted by Hall J, the respondent's offending history:
… shows that the respondent has a propensity to act violently. In particular, he has a tendency to use violence in intimate relationships and in the context of sexual offending. The period of time over which the offences have occurred suggests that the tendency is well-established. As to whether there is a pattern of offending, there are a number of recurring features in the offending conduct. They include, the use of violence generally and in the context of intimate relationships, the use of weapons and offending whilst under the influence of illicit drugs.[98]
[98] The State of Western Australia v PAS [No 3] [2021] WASC 117 [41].
I am satisfied, based on the antecedents of the respondent, that he does have a propensity to commit serious offences in the future, particularly if he is under the influence of illicit substances.
The respondent's offending behaviour followed a pattern, involving use of illicit substances and non-consensual sexual advances with women he was in a relationship with or at least knew. Those sexual advances were accompanied by violence and/or threats of violence.

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 (s 7(3)(e) HRSO Act); and

Whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender (s 7(3)(f) HRSO Act)

The respondent has completed the following rehabilitative programs:
(1)Exploring Change Workshop (2000);
(2)Cognitive Skills Program (2003);
(3)Violent Offender Treatment Origram (VOTP; 2013);
(4)Stopping Family Violence Program (SFV; 2013);
(5)Think First (Cognitive Skill) Program (2014);
(6)Pathways Program (2018); and
(7)ISOTP (2023).[99]
[99] Book of Materials vol 4, page 1298 [8].
The respondent completed the ISOTP on 18 April 2023. However, he declined to discuss any sexual offences other than the index offending as he was of the view that they were not relevant.
The respondent has made significant gains as a result of the ISOTP. He has stated to Dr Turoy-Smith that he learned to recognise his anger and violence and how to control it. The ISOTP program completion report notes that his self-awareness and skills were newly‑emerging and he would need ongoing therapeutic intervention to continue to practice and integrate these skills into his life. The report also notes that the respondent has outstanding treatment needs in the areas of consent, objectification of women, intimacy and challenging beliefs about women[100].
[100] Book of Materials vol 4, page 1302.
However, Ms Hamlett-Waller reports that, since completing the ISOTP, the respondent has displayed periods of regression in that he has begun to display ambivalence towards the index offending and lapsed into illicit drug use as a coping mechanism.[101]

The offender's antecedents and criminal record (s 7(3)(g) HRSO Act)

[101] Book of materials vol 4, page 1301.

The respondent criminal history is summarised by Hall J in The State of Western Australia v PAS [No 3] [2021] WASC 117 [27] - [41] and I incorporate that summary without repeating it.

The risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence (s 7(3)(h) HRSO Act)

I accept the evidence of Dr Wynn Owen that the respondent presents a high risk of committing a future serious offence (within the meaning of the HRSO Act) if not subject to a restriction order.

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

Dr Wynn Owen expresses the opinion that the respondent is most likely to re-offend within an intimate relationship. Although this could take time to develop, the respondent did form an intimate relationship with the victim of index offences within one week of meeting her and the violence against her started within two to three weeks of their relationship commencing. That violence quickly escalated and the index offending involved a combination of sexual and violent offending. In Dr Wynn Owen's opinion, the most likely further serious offending would parallel the index offending and would likely occur within six months of forming an intimate relationship.[102] I accept the evidence of Dr Wynn Owen as to the most likely manner in which the respondent would offend in the future.
[102] Book of Material vol 4, page 1328.

The index offending was extremely serious - the offending occurred over a four-day period and the victim suffered physical pain and emotional trauma. The victim was disfigured with a metal dart.[103]
[103] PAS v The State of Western Australia [2009] WASCA 210 [65].
In all of these circumstances, the need for protection of the community is very high.

Any other relevant matter (s 7(3)(j) HRSO Act)

The State and the respondent did not identify any other relevant matter.

Is the respondent a high risk serious offender?

In order to determine whether the respondent is a HRSO, I must be satisfied that it is necessary to make a restriction order against him in order to ensure the adequate protection of the community against the unacceptable risk that he will commit a serious offence.
I have found that the risk of the respondent committing a serious offence, of a sexual and violent nature, is high. I also accept the evidence of Dr Wynn Owen that it is likely that such offending would occur in the context of the respondent being in an intimate relationship with the victim. The potential impact of the type of serious offence which the respondent is at risk of committing involves severe physical and/or psychological harm to a section of the community, namely women with whom he forms a relationship.
Against that, I must balance the likely consequences to the respondent of finding that he constitutes an unacceptable risk, those consequences being considerable limits on his liberty regardless of the type of restriction order imposed, without having committed a serious offence.
Having carried out that balancing exercise, I am satisfied to a high degree of probability, on the basis of acceptable and cogent evidence, that the risk that the respondent will commit a serious offence unless subject to restriction is an unacceptable one.

Is it necessary to make a restriction order to ensure adequate community protection against the unacceptable risk that the respondent will commit a serious offence?

In my view, based on the evidence adduced, it is necessary to make a restriction order to ensure adequate protection of the community against the risk I have outlined.
Dr Wynn Owen is of the opinion that the respondent still remains a high risk of serious offending and that his offending is most likely to be committed as a result of his ongoing use of illicit substances. I have reached the same view based upon all the evidence. I am satisfied, to a high degree of probability, that the risk of offending by the respondent is so unacceptable that it is necessary to make a restriction order to ensure the adequate protection of the community.

Continuing detention order or supervision order?

Having found that the respondent is a HRSO and that it is necessary to make a restriction order to ensure adequate community protection against the unacceptable risk that the respondent will commit a serious offence, I must decide whether to affirm the CDO or whether to rescind it and make a supervision order.
In so deciding, the paramount consideration is the need to ensure the adequate protection of the community. The need to ensure the adequate protection of the community does not exclude other considerations.[104] I cannot make a supervision order unless I am satisfied, on the balance of probabilities, that the respondent will substantially comply with the standard conditions of such an order.[105]
[104] Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14].
[105] HRSO Act s 29(1).
The standard conditions are set out in s 30(2) of the HRSO Act. They include reporting, supervision and electronic monitoring and relevantly:
…
(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
…
(f)not commit a serious offence during the period of the order …
The respondent has the onus of proving, on the balance of probabilities, that he will substantially comply with the standard conditions.[106]
[106] HRSO Act s 29(2).
In order to be satisfied, on the balance of probabilities, that the respondent will substantially comply with the standard conditions of the supervision order, I must be satisfied that the respondent will comply with the standard conditions so as to ensure the adequate protection of the community from the unacceptable risk of the respondent committing a serious offence.[107]
[107] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52].
In Hart,[108] Fiannaca J considered the construction of the phrase 'substantially comply with', as it appeared in s 23(1B) of the DSO Act. His Honour determined that those words should be given their ordinary meaning consistent with the purposes of the legislation and the general conditions of a supervision order, the overall objectives of which are to adequately protect the community and mitigate the unacceptable risk that the offender with commit a serious sexual offence. As these words are identical to the words of the HRSO Act (and are contained within an identical section of the HRSO Act), this construction is equally applicable to s 29(1) and (2) of the HRSO Act.

Has the respondent satisfied the court on the balance of probabilities that he will substantially comply with the standard conditions?

[108] Hart [52].

The applicant submits that in light of all the evidence, the respondent has not discharged his burden of proving on the balance of probabilities that he will substantially comply with the standard conditions of a supervision order, most specifically the standard condition specified in s 30(2)(d) that he comply with any reasonable direction of a CCO, the standard condition specified in s 30(2)(f) that he not commit a serious offence, specifically a sexual offence that falls within the definition of 'serious offence' during the period of the order.
The respondent did not give or adduce evidence at the hearing. However, there is evidence on the State case which enables me to determine this issue.
The respondent contravened the ISO on a number of occasions by using illicit substances. Despite the respondent engaging in a significant amount of psychological counselling whilst in custody, the respondent has continued to use illicit substances. This conduct, supported by the evidence of Dr Wynn Owen, Dr Turoy-Smith and Ms Hamlett-Waller, demonstrates to me that the respondent is likely to contravene the conditions of a supervision order by using illicit substances within the community.
I am therefore, satisfied that if the respondent was to be released into the community, even on the stringent conditions of a supervision order, he would not be able to abstain for any appreciable period of time from using illicit substances. I am further satisfied, on the basis of the evidence given by Dr Wynn Owen, that the inevitable result of the respondent relapsing into illicit substance use while on a supervision order would be that the respondent would be at significant risk of committing serious sexual offences in the context of an intimate relationship.
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 HRSO Act. For this reason alone, I am of the view that the respondent should not be released on a supervision order.
Even if the respondent had (contrary to my view) proved on the balance of probabilities that he would substantially comply with the standard conditions of a supervision order, I am not, having regard to the paramount consideration being the need to ensure adequate protection of the community, satisfied that the community can be adequately protected by releasing the respondent on a supervision order. On the basis of the evidence adduced, there is an elevated risk of the respondent committing a serious offence if he is using methylamphetamine. On the basis of the evidence of Dr Wynn Owen, which I accept, the respondent's use of cannabis and opiates is an indication that he is not coping with stress which in turn increases his risk of using methylamphetamine.
As I have already indicated and for the reasons I have already stated, I am satisfied that the respondent, if released into the community on a supervision order, will not be able to abstain from illicit substance use which means there is a significant risk that he will commit serious sexual offences in the context of an intimate relationship. In these circumstances, I am not satisfied that the community will be adequately protected is the respondent is released on a supervision order. In my view, releasing the respondent on a supervision order on stringent conditions will not 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.

Summary

I am satisfied, to a high degree of probability, that it is necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence. Accordingly, I am satisfied that the respondent remains a HRSO within the meaning of the HRSO Act.
I am not satisfied that the respondent has established, on the balance of probabilities, that he will substantially comply with the standard conditions of a supervision order.
Further, I am not satisfied that the positive changes in circumstances since the last review are sufficient to indicate that the respondent's risk of re-offending has reduced to a level that the protection of the community can be adequately ensured by the respondent's release on a supervision order.
In all of these circumstances, therefore, I am satisfied that the respondent remains a HRSO and that the appropriate order to make is to affirm the CDO.

Recommendations for ongoing treatment and management

As I have found, the respondent's most significant risk factor for future offending is his illicit substance use. In my view, 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.
The respondent has been accepted to commence the Solid Steps program which commences in October 2023. It is nine-month intensive substance use program. It is also recommended that, upon completion of the Solid Steps program, the respondent complete the Pathways program.
Given the evidence of Dr Wynn Owen that the respondent would benefit from continuing with individual counselling during the Solid Steps program, I also recommend that the respondent should 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 Wynn Owen, Dr Turoy-Smith and Ms Hamlett-Waller.
I remind those who are responsible for his day-to-day detention that the respondent is being detained in prison for control, care and treatment, and not for punishment.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to the Hon Justice Whitby
25 OCTOBER 2023