The State of Western Australia v Pickett [No 2] - [2024] WASC 22

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- PICKETT [No 2] [2024] WASC 22
CORAM:   DERRICK J
HEARD:   18 OCTOBER, 6 DECEMBER 2023 & 30 JANUARY 2024
DELIVERED          :   7 FEBRUARY 2024
FILE NO/S:   SO 3 of 2019
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
KINGSLEY ARNOLD PICKETT
Respondent

Catchwords:

Dangerous sexual offender - High risk serious offender - Periodic review - Whether respondent remains a high risk serious offender - Whether continuing detention order should be affirmed or rescinded - Whether community would be adequately protected if respondent released on a supervision order

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)
High Risk Serious Offenders Act 2020 (WA)
Sentencing Act 1995 (WA)

Result:

Continuing detention order rescinded
Supervision order made

Category: B

Representation:

Counsel:

Applicant	:	F M Allen
Respondent	:	T Hager

Solicitors:

Applicant	:	State Solicitor's Office (WA)
Respondent	:	Tony 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 GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Hart [2019] WASC 4
Director of Public Prosecutions for Western Australia v Williams [2007] WASCA 206; (2007) 35 WAR 297
Garlett v The State of Western Australia [2022] HCA 30
GBT v The State of Western Australia [2019] WASCA 40
Italiano v The State of Western Australia [2009] WASCA 116
Pickett v The Queen [2019] WASCA 178
The State of Western Australia v ACJ [2021] WASC 219
The State of Western Australia v CA [No 3] [2023] WASC 144
The State of Western Australia v D'Rozario [No 3] [2021] WASC 412
The State of Western Australia v Jonsson [No 3] [2019] WASC 463
The State of Western Australia v JXK [No 3] [2023] WASC 23
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Narkle [2019] WASC 404
The State of Western Australia v Newland [2018] WASC 344
The State of Western Australia v Patrick [No 4] [2020] WASC 48
The State of Western Australia v Patrick [No 5] [2022] WASC 61
The State of Western Australia v Paul Douglas Allen also known as Paul Alan Francis Deverell [No 5] [2019] WASC 359
The State of Western Australia v Pickett [2020] WASC 96
The State of Western Australia v Rao [2019] WASC 93
The State of Western Australia v West [No 6] [2019] WASC 427
The State of Western Australia v ZSJ [2020] WASC 330

DERRICK J:

Introduction

On 13 March 2023 the State of Western Australia (State) applied, pursuant to s 64 of the High Risk Serious Offenders Act 2020 (WA) (Act), for the detention of Kingsley Arnold Pickett (respondent) under a continuing detention order made on 25 March 2020 to be reviewed as soon as practicable after 16 September 2023 (application).
The hearing of the application took place before me on 18 October 2023, 6 December 2023 and 30 January 2024. The explanation for the hearing occurring on three dates over an approximate four month period is that difficulties were encountered finding for the respondent accommodation that he would be able to live in if I ultimately found that he remained a high risk serious offender but could be released on a supervision order.
For the reasons set out below, I have decided that the respondent remains a high risk serious offender, that the continuing detention order should be rescinded and that a supervision order should be made in respect of the respondent.

Background to the application

Proceedings under the Dangerous Sexual Offenders Act 2006 (WA)

On 5 June 2019 the State applied under s 17 of the now repealed Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) for a div 2 order to be made in respect of the respondent (DSO Act application).
On 13 February 2020 Smith J heard the DSO Act application.
On 25 March 2020 Smith J found that the respondent was a serious danger to the community within the meaning of s 7(1) of the DSO Act; that is, found that there was an unacceptable risk that if the respondent was not subject to a continuing detention order or a supervision order he would commit further 'serious sexual offences'.[1] Smith J also found, on the basis of the evidence before her, that it was necessary to make a continuing detention order in respect of the respondent pursuant to s 17(1)(a) of the DSO Act (CDO). Smith J expressed her reasons for deciding that it was necessary to make the CDO in the following terms (footnotes omitted):[2]
[1] The State of Western Australia v Pickett [2020] WASC 96 [125], [127].
[2] The State of Western Australia v Pickett [133] - [138].
As counsel for the State points out, the paramount consideration in deciding between a continuing detention order and a supervision order, is the protection of the community, but this does not mean that there is a predisposition towards making a continuing detention order…
However, as Quinlan CJ recently pointed out, as s 17(2) requires the court to apply, as the paramount consideration, the need to ensure adequate protection of the community, matters personal to the person must necessarily be secondary considerations.
Further, the court is prohibited by the operation of s 17(3) and s 17(4) of the [DSO Act], from making a supervision order unless it is satisfied, on the balance of probabilities, that [the respondent] will substantially comply with the standard conditions of a supervision order, the onus of proof which is on [the respondent].
One of the standard conditions of a supervision order is that the person subject to the order will comply with any reasonable direction of the community corrections officer under whose supervision they are placed under. Another standard condition is that the person subject to the supervision order will report to a community corrections officer. In light of the evidence that:
(a) Mr Pickett has unmet treatment needs which need to be addressed prior to release from prison;
(b)Mr Pickett is on prescribed psychotropic medications (one of which is unlikely to be prescribed outside of prison) and methadone, all of which Dr Wynn Owen and Dr Wojnarowska agree should be gradually withdrawn prior to release from prison;
(c)Mr Pickett needs to show that he can self-manage his anxiety, emotions and negative moods, without psychotropic medications and illicit drugs, whilst in a regulated environment, to assist him to make a transition to the community;
(d)in the past Mr Pickett (albeit when he was significantly younger) has previously shown a disregard of supervision orders as he has been convicted of various breaches of probation, bail or conditional release orders, and at the time of his index offences, he was on home detention bail; and
(e)Mr Pickett's reluctance from time to time to attend appointments;
I am not satisfied, on the balance of probabilities, that Mr Pickett will substantially comply with the standard conditions of a supervision order, set out in s 18(1)(b) and s 18(1)(d) of the [DSO Act].
As Quinlan CJ also recently remarked, it is in the interests of the community, and its protection from offending, that an offender with known treatment needs have those treatment needs addressed, before consideration is given to their release under supervision not, as is the case, afterwards.
For these reasons, I am of the opinion that I must make an order that Mr Pickett be detained in custody for an indefinite term for control, care or treatment.
In relation to the respondent's future treatment needs Smith J said the following:[3]
Whilst Mr Pickett is detained, it is imperative that he should receive the treatment and assistance he requires to make the transition to the community. Mr Pickett has family support available to him in the community, and has the prospect of a protective relationship with a new partner. If Mr Pickett is prepared to properly engage with a forensic psychologist in prison to address all of his treatment needs, and to engage with appropriately qualified medical staff to reduce his psychotropic medication, and if possible his dependency on methadone, then it is my view that Mr Pickett should have good prospects in the future to be released on a supervision order.
In all of the documentary and evidentiary material before the court, there is in my view signs that Mr Pickett, with dedicated and appropriate assistance, is capable of gaining insight into the triggers that lead him into offending.
Now that Mr Pickett is no longer subject to an indefinite sentence, perhaps he can now see that there is some light in front of him if he is prepared to do the work to make the changes in his patterns of behaviour that are required of him.
It is also important, in providing the proper assistance to Mr Pickett in making the changes required of him, that the prison authorities consider whether it is possible to move him to a low security prison environment.

The coming into operation of the Act

[3] The State of Western Australia v Pickett [139] - [142].

On 9 July 2020 pt 1 of the Act came into operation.[4] On 26 August 2020 other parts of the Act relevant to the application came into operation (commencement day).[5] Upon the coming into operation of these other parts of the Act the DSO Act was repealed.[6]
[4] Act, s 2(1)(a).
[5] The term 'commencement day' is defined for the purposes of the provisions contained in pt 10 of the Act (s 122 - 125) to mean 'the day on which the section comes into operation'. The 'day on which this section comes into operation' is, by virtue of proclamation, 26 August 2020: Act s 2(1)(c).
[6] Act, s 123.
Under s 125 of the Act, if an order made, or direction given, under the DSO Act is in effect on the commencement day, the order or direction continues in effect and is taken to have been made or given under the corresponding provision of the Act. Accordingly, after 26 August 2020 the CDO continued in effect and was taken to have been made under the Act, and any application for the review of the CDO was required to be made pursuant to the provisions of the Act and be determined pursuant to the provisions of the Act.[7]

First review of the CDO

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

On 16 September 2021 Curthoys J conducted the first review of the CDO pursuant to s 64 and s 66 of the Act. On the same date his Honour affirmed the CDO pursuant to s 68(1)(b)(i) of the Act.[8] His Honour encapsulated his reasons for affirming the CDO in the following terms:[9]
At the present time, with substantial unmet treatment needs, in particularly [sic] those that relate to reengaging with the community after a long, long period of absence from participation in the community, the building of prosocial attitudes to life in the community and dealing with the criminogenic factors, as Dr Wojnarowska said, I have come to the conclusion reluctantly, because it's always unfortunate that someone should remain in detention once they've served their time, nevertheless the primary concern is that - it's the protection of the community and at the present time, due to the unmet supervision needs, which need to be addressed to release Mr Pickett on a supervision order, would not meet the test of the paramount consideration of protection of the community.
If Mr Pickett can demonstrate that he can attend and he does engage with the psychological counselling and the other factors that would meet his treatment needs, then, on a later occasion, then, hopefully he may be able to be the subject of a supervision order. However, that requires Mr Pickett to take steps, as I said, in the course of argument I can understand his frustrations. But he will need to work through that frustration and engage with the treatment - so his treatment needs can be met.
He is fortunate that if and when a supervision order is made, he has a partner who offers him support and it seems hopeful that ultimately he won't face the accommodation needs that people so often face. The position now is that really, Mr Pickett's eligibility for a supervision order depends very much on him and him engaging in the treatment needs, in particular those from engaging in the psychological counselling.
However, until he does that, the protection of the community requires a continuing detention order …
[8] Curthoys J delivered oral reasons for his decision. His Honour did not subsequently publish his oral reasons in written form.
[9] ts 223, 16 September 2021.

Length of time in custody

The respondent has been incarcerated since 4 December 1998 and has been detained under the provisions of the DSO Act and the Act since 25 July 2019.
In December 1998 the respondent was 21 years old. He is now 45 years old.

Evidence on the application

At the hearing of the application the State tendered without objection a Book of Materials comprising three volumes.[10] Volume 1 is dated 1 4 July 2023. Volume 2 is dated 28 September 2023. Volume 3 is dated 29 January 2024.
[10] Exhibit 1.
Volume 1 of the Book of Materials contains a variety of materials relating to the respondent. The materials include the respondent's criminal record, his prison records, documents relating to his prior offences and reports prepared for the purposes of the proceedings under the DSO Act heard by Smith J and the first review under the Act heard by Curthoys J.
Volume 2 of the Book of Materials contains the following reports prepared specifically for the purposes of the hearing of the application:
1.A psychiatric report prepared by Dr Gosia Wojnarowska, Forensic Consultant Psychiatrist, dated 7 September 2023;[11]
2.A Treatment Progress Report prepared by Mr David Summerton, a Senior Counselling Psychologist with the Department of Justice's (Department) Forensic Psychological Intervention Team (FPIT), dated 17 August 2023;[12]
3.A Treatment Progress Report prepared by Dr Katrine Turoy‑Smith, a Forensic Psychologist with the Department's Forensic Psychological Assessment Team, dated 11 September 2023;[13] and
4.A Community Supervision Assessment Report prepared by Ms Julie Dabala, a Senior Community Corrections Officer (CCO) within the Department's Community Offender Monitoring Unit (COMU), dated 27 September 2023.[14]
[11] Exhibit 1, vol 2, 412. Dr Wojnarowska is a 'qualified expert' as defined in s 3 of the Act. Her report was prepared and obtained pursuant to s 67(1) of the Act in accordance with s 74 of the Act.
[12] Exhibit 1, vol 2, 403.
[13] Exhibit 1, vol 2, 427.
[14] Exhibit 1, vol 2, 440.
Volume 3 of the Book of Materials also contains a number of reports prepared specifically for the purposes of the application. The reports are as follows:
1.An addendum report prepared by Dr Wojnarowska dated 29 November 2023;[15]
2.An updated Community Supervision Assessment Report prepared by Ms Dabala dated 28 November 2023;[16] and
3.An updated Community Supervision Assessment Report prepared by Ms Dabala dated 15 January 2024.[17]
[15] Exhibit 1, vol 3, 455.
[16] Exhibit 1, vol 3, 452.
[17] Exhibit 1, vol 3, 470.
At the hearing of the application the State also tendered without objection the Department's Substance Use Test Results for the respondent for the period 28 April 2023 - 17 October 2023.[18]
[18] Exhibit 2.
At the hearing of the application the State called Dr Wojnarowska and Ms Dabala to give supplementary oral evidence.
The respondent did not adduce any evidence on the application.
Dr Wojnarowska assessed the respondent for the purposes of, and provided evidence on, the proceedings under the DSO Act and the first review of the CDO.

Relevant statutory provisions and applicable legal principles

I turn now to dealing in more detail with the provisions of the Act by reference to which the application must be determined and the legal principles that are applicable to the determination of the application.
In relation to the applicable legal principles, in The State of Western Australia v ZSJ,[19] a case in which the State made an application under div 2 of the DSO Act but which, given the repeal of the DSO Act, fell to be decided under the provisions of the Act, Fiannaca J made the following observations (citations omitted):
As will emerge from the outline below of the statutory framework under the DSO Act and [the Act], the concepts and criteria with which the court is concerned in determining an application of this kind are substantially the same under both statutes. Although I have reached that view on the basis of the ordinary meaning of the provisions of both statutes, having regard to the context of the provisions within the statutes and the objects underlying the statutes, the construction is confirmed, in my opinion, by the second reading speech made to the Legislative Assembly in respect of the High Risk Offenders Bill 2019 by the Honourable Attorney General. The Attorney informed the House that the bill was intended to 'extend the Supreme Court's ability to make a continuing detention order or supervision order to serious violent offenders in the same manner as the provisions contained in the [DSO Act]'. He went on to say:
'In doing so, this bill fully preserves the provisions that apply in respect of dangerous sexual offenders in the [DSO Act].'
Whether or not that has been achieved remains to be seen upon analysis of the provisions. However, in my opinion, as the concepts and criteria in both statutes are substantially the same, the jurisprudence established in respect of the DSO Act remains relevant in construing and applying [the Act], with appropriate adaptation in cases involving non-sexual offences.
[19] The State of Western Australia v ZSJ [2020] WASC 330 [30] ‑ [31].
I respectfully agree with Fiannaca J's observations. In my opinion and having full regard to the recent decision of the High Court in Garlett v The State of Western Australia[20] which addressed the constitutional validity of aspects of the Act, the case law decided under the DSO Act in relation to applications for review of continuing detention orders remains (with appropriate adaptation in cases involving non-sexual offences) relevant to the determination of such applications under the provisions of the Act. Accordingly, the cases to which I will refer in dealing with the legal principles applicable to the determination of the application will include cases that have been concerned with proceedings under the DSO Act.
[20] Garlett v The State of Western Australia [2022] HCA 30 [55], [103], [104], [106].
Section 63 of the Act provides:
The purpose of this Part is to ensure that an offender's detention under a continuing detention order is regularly reviewed.[21]
[21] The respondent is an 'offender' for the purposes of the relevant provisions of the Act: Act, definition of 'offender' and 'serious offender under restriction' in s 3.
Section 64 of the Act provides for the making by the State of an application for an offender's detention under a continuing detention order to be reviewed.
Section 66 of the Act provides for the hearing by the court of an application by the State for the review of an offender's detention under a continuing detention order.
Section 68 of the Act provides:
Review of detention under continuing detention order
(1)On a review under section 66 of an offender's detention -
(a)if the court does not find that the offender remains a high risk serious offender it must rescind the continuing detention order; or
(b)if the court finds that the offender remains a high risk serious offender it must -
(i) affirm the continuing detention order; or
(ii)subject to section 29, rescind the continuing detention order and make a supervision order.
(2)In deciding whether to make an order under subsection (1)(b)(i) or (ii), the paramount consideration is to be the need to ensure the adequate protection of the community.

The definition of the term 'high risk serious offender' is contained in s 7(1) of the Act. Section 7(1) is in the following terms:
An offender is a high risk serious offender if the court dealing with an application under this Act finds that it is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.
The term 'restriction order' is defined in s 3 of the Act to mean 'a continuing detention order' or 'a supervision order'. A 'continuing detention order' is 'an order that the offender be detained in custody for an indefinite term for control, care or treatment'.[22] 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 s 30'.[23]
[22] Act, s 3 and s 26(1).
[23] Act, s 3 and s 27(1).
As to the term 'serious offence' used in s 7(1), s 3 and s 5(1) of the Act provide that a 'serious offence' is an offence that is 'specified in Schedule 1 Division 1' of the Act, or 'is specified in Schedule 1 Division 2 and is committed in the circumstances indicated in relation to that offence in that Division'. Section 5(2) of the Act provides that an offence is a 'serious offence' if it was 'an offence under a written law that has been repealed and the offender's acts or omissions that constituted the offence under the repealed provision would constitute a serious offence' under s 5(1). Section 5(3) of the Act provides that an offence is a 'serious offence' if it is an 'attempt…to commit an offence that is a serious offence' under s 5(1) or s 5(2).[24]
[24] Any further references to a 'serious offence' or to 'serious offences' should be read as references to a serious offence or serious offences as defined in the Act.
It follows from the definition of 'high risk serious offender' contained in s 7(1) that a finding under s 68(1)(b) that an offender 'remains a high risk serious offender', that is, a finding that it remains necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence, necessarily entails a finding that if the offender is not subject to a restriction order the community will not be adequately protected against an unacceptable risk that the offender will commit a serious offence.[25]
[25] The State of Western Australia v Rao [2019] WASC 93 [28] - [29]; The State of Western Australia v ZSJ [44].
If the court finds that an offender 'remains a high risk serious offender' it is not invested with a residual discretion to decline to make a restriction order.[26] In these circumstances the question for the court is whether a continuing detention order or a supervision order should be made.[27]
[26] Garlett v The State of Western Australia [72].
[27] Act, s 68(1)(b).
By reason of the definition of 'high risk serious offender' contained in s 7(1), before the court can find under s 68(1)(b) that the offender remains a high risk serious offender, it must be satisfied of the matters referred to in s 7(1) 'by acceptable and cogent evidence and to a high degree of probability'. The 'high degree of probability' standard is a higher standard than the standard of the balance of probabilities but is a lesser standard than the standard of beyond reasonable doubt. The standard is otherwise incapable of further definition.[28]
[28] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [28]; The State of Western Australia v West [No 6] [2019] WASC 427 [24]; The State of Western Australia v ZSJ [47].
The requirement is not that the risk that the offender will commit a serious offence must be at some high percentage of probability. A risk that the offender will commit a serious offence may be less than 50% yet still be an unacceptable risk.[29] It is the necessity to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence that must be proved by acceptable and cogent evidence and to a high degree of probability.
[29] The State of Western Australia v West [No 6] [24]; The State of Western Australia v ZSJ [47].
Whether or not a risk that the offender will commit a serious offence is 'unacceptable' is a question that requires the court's judgment as to the likelihood of the offender committing the serious offence and the nature and extent of the harm that will be caused if the offender commits the serious offence.[30] Further, whether a restriction order is 'necessary' to ensure adequate protection of the community against the 'unacceptable risk' requires consideration of what would otherwise be the offender's entitlement to be at liberty, an entitlement not lightly to be denied.[31] Accordingly, the court is required to perform an evaluative exercise by considering whether, having regard to the likelihood of the offender offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the offender has already been punished for the offences they have committed, it is necessary in the interests of the community to ensure that they are subject to further control or detention.[32] In addition, although the requirement of an evaluation under s 7(1) depends upon the offender having been convicted of a serious offence, s 7(1) and s 68 do not envisage the possibility that a finding that an offender remains a high risk serious offender might be made to prevent the commission of a serious offence, whether of the same kind or another kind, unless the risk of further offending involves a real threat of harm to the community.[33]
[30] Italiano v The State of Western Australia [2009] WASCA 116 [46]; The State of Western Australia v Newland [2018] WASC 344[12]; GBT v The State of Western Australia [2019] WASCA 40[21]; The State of Western Australia v West [No 6] [22]; The State of Western Australia v ZSJ [45]; Garlett v The State of Western Australia [73], [226].
[31] Garlett v The State of Western Australia [73], [227]. As Quinlan CJ recognised in The State of Western Australia v D'Rozario [No 3] [2021] WASC 412 [21] there may be rare situations in which a court will find that it is not necessary to make a restriction order notwithstanding a finding that the offender poses an 'unacceptable risk', for example, where other external restraints (such as a post-sentence supervision order under the Sentence Administration Act 2003 (WA)) are sufficient to ensure adequate protection of the community from the risk.
[32] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63]; GBT v The State of Western Australia [21]; The State of Western Australia v West [No 6] [22]; The State of Western Australia v ZSJ [45]; Garlett v The State of Western Australia [73], [226] - [228], [279]
[33] Garlett v The State of Western Australia [84].
By reason of s 68(2), if the court finds that the offender remains a high risk serious offender it is the need to ensure 'adequate' protection of the community that is to be the paramount consideration for the court in deciding whether to affirm the continuing detention order or to make a supervision order. The use of the word 'adequate' indicates that a qualitative assessment is required. It cannot be assumed that the most assured preventative action is detention and that therefore the protection of the community will always favour such an order.[34] In this regard I respectfully adopt the following statements of Beech J (as his Honour then was) in Director of Public Prosecutions (WA) v DAL [No 2] which, although made in relation to review proceedings under the DSO Act, are equally applicable to the operation of s 7(1) and s 68(2) of the Act:[35]
In choosing between an indefinite detention order or a supervision order, the fact that the paramount consideration is the need to ensure the adequate protection of the community does not exclude other considerations. The use of the word 'adequate' indicates that a qualitative assessment is required. In considering whether a supervision order would adequately protect the community, account must be taken of conditions which can be placed on a supervision order so as to ensure the adequate protection of the community, the rehabilitation of the respondent and his care and treatment. The [DSO Act] does not require that there be no risk of reoffending. Such a requirement could never be met and would mean no person to whom the [DSO Act] applies would ever be released. The question is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community. That requires a weighing of the nature and degree of risk in the context of methods for the management and reduction of that risk. If, after considering all the evidence, the court is left in doubt as to whether the conditions of a supervision order would adequately protect the community, because the paramount consideration is the need to ensure the adequate protection of the community, the court must expressly decline to rescind the continuing detention order.
[34] Director of Public Prosecutions for Western Australia v Williams [63] ‑ [64]; Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14]; The State of Western Australia v Newland [21]; The State of Western Australia v West [No 6] [26]; The State of Western Australia v ZSJ [51]; Garlett v The State of Western Australia [106].
[35] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33]. Also adopted in The State of Western Australia v Narkle [2019] WASC 404 [13] and The State of Western Australia v West [No 6] [26].
The scheme of the Act requires that the court do no more than is necessary to achieve an adequate degree of protection of the community.[36]
[36] The State of Western Australia v Latimer [2006] WASC 235 [24]; The State of Western Australia v Patrick [No 5] [2022] WASC 61 [56]; Garlett v The State of Western Australia [85], [229] - [230].
Section 7(2) of the Act provides that the State 'has the onus of satisfying the court as required by subsection (1)'.
Section 7(3) of the Act specifies the matters that the court must have regard to in deciding if an offender is a high risk serious offender for the purposes of s 7(1). The matters specified are substantially identical to the matters that the court was, by s 7(3) of the DSO Act, required to have regard to in deciding whether a person was a 'serious danger to the community' within the meaning of the DSO Act. The matters are as follows:
(a)any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section;
(b)any other medical, psychiatric, psychological, or other assessment relating to the offender;
(c)information indicating whether or not the offender has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by the offender;
(e)any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;
(f)whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;
(g)the offender's antecedents and criminal record;
(h)the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;
(i)the need to protect members of the community from that risk;
(j)any other relevant matter.
Although s 7(3)(g) provides that a court must have regard to the offender's criminal record in deciding whether the person is a high risk serious offender, the mere fact that a person has committed previous offences does not necessarily mean that there is an unacceptable risk that they will commit a serious offence in the future if they are not subject to a continuing detention order or a supervision order. The relevance of a prior criminal record depends on the nature of the offences committed, the number of them and the period of time over which they have been committed. Nonetheless, past behaviour is often a good indicator of future conduct.
By s 68(1)(b)(ii) of the Act, the power of the court to rescind the continuing detention order and make a supervision order is expressed to be subject to s 29. Section 29 relevantly provides:
(1)A court cannot make, affirm or amend a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made, affirmed or amended.
(2)The onus of proof as to the matter described in subsection (1) is on the offender.
The term 'standard conditions' in relation to a supervision order is defined in s 3 of the Act to mean a condition that under s 30(2) of the Act must be included in the order. Section 30(2) of the Act specifies seven conditions that must be included in any supervision order.
Therefore, the effect of s 29(1) and s 29(2) of the Act is that the offender must satisfy the court on the balance of probabilities that they will substantially comply with the standard conditions set out in s 30(2) of the Act before the court can make a supervision order in relation to them.[37]
[37] Garlett v The State of Western Australia [102], [231].
For the court to be satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions of the supervision order, it must be satisfied that the offender will comply with the standard conditions in a manner and to an extent that will ensure adequate protection of the community from the unacceptable risk of the respondent committing a serious offence.[38] Further, in determining if it is satisfied that the offender will substantially comply with each standard condition of the supervision order, the court must have regard not only to the constraints that will be imposed upon the offender by the other standard conditions, but also to the constraints that will be imposed upon the offender by all the other 'non-standard' conditions of the supervision order.[39]
[38] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52]; The State of Western Australia v West [No 6] [29]; The State of Western Australia v ZSJ [56] ‑ [58]; The State of Western Australia v Patrick [No 4] [2020] WASC 48 [109] - [111].
[39] The State of Western Australia v ACJ [2021] WASC 219 [416]; Garlett v The State of Western Australia [103] - [104], [233].
As to the purpose of a review hearing under the Act, the following statements made by Hall J in The State of Western Australia v Paul Douglas Allen also known as Paul Alan Francis Deverell [No 5][40] in relation to the review process provided for under the DSO Act are apposite (footnotes omitted):
The clear intention of the review process is to allow for the possibility of a change of circumstances. Detention under the DSO Act is not a punishment for past offending, rather it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised. If circumstances change such that the risk of reoffending reduces or can be better managed in the community, then the continuing need for detention must be considered.
The risk of reoffending may change over time. It may be affected by age, health or the successful completion of treatment. The availability of new technology or resources in the community may also affect whether the risk of reoffending can be managed on a supervision order.
The justification for making a detention order is the existence of an unacceptable risk of serious sexual offending that cannot be adequately controlled by conditional release. However, detention also serves the purpose of allowing treatment and care in a secure environment: s 17 DSO Act. This confirms an obligation on the part of the prison authorities to facilitate change by offering programs and access to counselling.
If the risk changes or resources improve to enable more efficacious conditions then the need for detention may dissipate. In these circumstances continuing detention may be unjust.
The review process is intended to ensure that detention only continues where necessary. It mitigates the otherwise potentially draconian effect of imprisoning people for crimes that they have not committed. Reviews are not, therefore, merely a welfare check, rather they are an exercise of judicial power to affirm, vary or rescind a detention order. Continuing detention should not be ordered unless that course is justified by the circumstances existing at the time of the review. The court should choose the order that is least invasive of the person's right to be at liberty, whilst ensuring an adequate degree of protection of the community.
[40] The State of Western Australia v Paul Douglas Allen also known as Paul Alan Francis Deverell [No 5] [2019] WASC 359 [7] ‑ [11].

Matters specified in s 7(3) of the Act

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

The respondent's history of offending - s 7(3)(g)

The respondent has a very lengthy juvenile and adult criminal record. He has spent more than half of his life in juvenile detention or prison. His offending has been associated with his use of illicit drugs.

Juvenile offending

In The State of Western Australia v Pickett[41] Smith J summarised the respondent's juvenile offending and periods in detention in the following terms which I adopt:
According to his criminal history, Mr Pickett incurred numerous convictions from 5 December 1988 onwards (after he had attained the age of criminal responsibility) until the time of his most recent imprisonment in 1998.
…
By 1991, Mr Pickett started committing offences of dishonesty, mainly breaking and entering offences, and more serious violent offences including robbery which escalated to sentences on 16 April 1992 to offences of manslaughter by motor vehicle, and being in detention again at the age of 14.
On 30 November 1992, Mr Pickett was convicted on his 15th birthday for a series of violent offences (including assault of a public officer, assault to prevent arrest, burglary, dangerous driving, escape from legal custody, failure to stop, resisting arrest, robbery in company and stealing) and sentenced to indefinite detention pursuant to the Crimes (Serious and Repeat Offenders) Sentencing Act 1992 (WA) (repealed).
Mr Pickett was released from indefinite detention on a Conditional Release Order (CRO) on 7 November 1994 (at the age of 16 years). He was returned to custody for a breach of a curfew condition on 6 December 1994 (at the age of 17 years). He had been out of custody for about one month.
Mr Pickett was next released from custody on a CRO on 6 May 1995 (still at the age of 17 years). He was returned to custody about one month later on 2 June 1995 (again at the age of 17 years). While on the CRO, he committed multiple offences, including assault occasioning bodily harm, assault of a public officer, damage, fraud, stealing a motor vehicle and reckless driving.
[41] The State of Western Australia v Pickett [24], [29] - [32].
I note that the respondent's juvenile offences of robbery and manslaughter, although they were not 'serious offences' as defined in the DSO Act, are serious offences as defined in s 5(1) of the Act.

Adult offending: July 1997 - September 1998

On 30 November 1995 the respondent turned 18 years old.
On 9 July 1997 the respondent was again released from custody on a conditional release order (CRO). He was 19 years old at the time. He remained in the community for approximately seven months.
On 24 February 1998 the respondent committed an offence of stealing a motor vehicle. He was 20 years old at the time of committing the offence. On 6 March 1998 he was remanded in custody for the offence. On 7 April 1998 he was convicted of the offence and sentenced to a term of imprisonment.
On 19 June 1998 the respondent was again released from custody.
On 23 September 1998 the respondent, after he had been in the community for approximately three months, committed an offence of aggravated burglary. On the next day, 24 September 1998, he committed an offence of attempted aggravated burglary. On 24 September 1998 he was arrested for the two offences and remanded in custody.
On 7 October 1998 the respondent was released on home detention bail in respect of the aggravated burglary and attempted aggravated burglary offences committed by him on 23 and 24 September 1998.
On 29 January 1999 the respondent was convicted after trial of the attempted aggravated burglary offence committed by him on 24 September 1998. He was sentenced to 2 years imprisonment for the offence. He was made eligible for parole. The commencement date of the sentence was backdated to 24 November 1998.
On 17 August 1999 the respondent was convicted on his plea of guilty of the aggravated burglary offence committed by him on 23 September 1998 and was sentenced to 2 years imprisonment for the offence. On the same date he was sentenced for a number of other offences to which I refer further below. The 2 year sentence was ordered to be served concurrently with the sentences imposed for these other offences.

Adult offending: 29 November 1998 - 3 December 1998

Over a period of five days from 29 November 1998 to 3 December 1998 the respondent committed a number of violent burglary offences against five different complainants. Thus he committed the offences while on home detention bail in respect of the aggravated burglary and attempted aggravated burglary offences committed by him on 23 and 24 September 1998. He was arrested for the offences on 4 December 1998 and was remanded in custody.
The facts of the offences and the sentences imposed for the offences were as follows.

Offences committed on 29 November 1998 - aggravated burglary, robbery, aggravated indecent assault and 2 x aggravated sexual penetration without consent whilst pretending to be armed with a knife (IND 198 of 1999) (index offences)

In the early hours of 29 November 1998 the victim was home alone at her residence in Cloverdale. The victim was a 27‑year‑old female. Her husband had gone to work.
The victim was woken up by the sound of the respondent and a co‑offender breaking a sliding glass door of her house. She called the police and hid in her bedroom.
The respondent entered the victim's bedroom and pretended that he was armed with a knife. He demanded money from the victim who gave him $55 cash.
It was the respondent's conduct in breaking into the victim's house in company with the co-offender and obtaining the cash while pretending to be armed with a knife that constituted his aggravated burglary and robbery offences (counts 1 and 2 on the indictment).
After obtaining the cash the respondent made the victim remove her nightdress so that she was naked. He made the victim sexually touch herself. It was this conduct of the respondent that constituted his aggravated indecent assault offence (count 3 on the indictment).
The respondent next forced the victim to walk naked outside to a shed, past a co-offender who was keeping watch. He then forced the victim to put his penis inside her mouth. He also penetrated the victim's vagina with his finger without her consent. It was this conduct of the respondent that constituted his two sexual penetration without consent offences (counts 5 and 6 on the indictment).
The co‑offender, who was keeping watch outside the shed, alerted the respondent to the arrival of the police. The respondent fled the scene.
On 23 May 2000 the respondent was convicted of the index offences after trial.[42]
[42] The appellant was acquitted of counts 4 and 7 on the indictment.
On 23 June 2000 the respondent was sentenced to 9 years imprisonment for the index offences. He was not made eligible for parole. The sentencing judge also made an order for indefinite imprisonment under s 98 of the Sentencing Act 1995 (WA).
At the time that the sentence was imposed for the index offences the respondent was already serving a total effective sentence of 10 years and 9 months imprisonment for other offences.
On 11 July 2018 the respondent appealed against the indefinite imprisonment order. On 12 November 2019 the Court of Appeal allowed the appeal and set aside the sentences imposed on 23 June 2000 including the order for indefinite imprisonment.[43] The Court of Appeal resentenced the respondent to 14 years and 7 months imprisonment for the index offences and backdated the commencement date of the sentence to 23 June 2000.[44]
[43] Pickett v The Queen [2019] WASCA 178.
[44] Pickett v The Queen [2019] WASCA 178 [96] - [99].
If it were not for the fact that the respondent was the subject of an interim detention order made on 25 July 2019 under s 14(2)(b)(i) of the DSO Act pending Smith J's determination of the DSO Act application the sentence imposed by the Court of Appeal would have resulted in the immediate release of the respondent from prison.
The respondent's aggravated indecent assault offence and two sexual penetration without consent offences are serious offences as defined in s 5 of the Act.

Offences committed on 30 November 1998 to 3 December 1998 - 3 x aggravated burglary, aggravated burglary with intent, attempted stealing with violence, assault occasioning bodily harm (IND 1176 of 1999)

At around 9.30 pm on 30 November 1998 the victims, who were husband and wife, returned to their home in Cloverdale to find that their house had been ransacked. The victims had begun to look through their house when the respondent confronted them, holding a star picket. The respondent raised the star picket at the victims which caused them to run from the house. The respondent ran into the bedroom and left through the window. The respondent stole credit cards and money from the house. The respondent's conduct constituted the first of the aggravated burglary offences (count 1 on the indictment).
At about 9.50 pm on 1 December 1998 the two victims were sitting in their lounge room in their house in Cloverdale. They heard a noise and when they looked up saw that the respondent had opened the curtain and sliding door and was standing watching them. The respondent was holding a brick which he raised up as he demanded that the victim's hand over their wallets. The victims refused. The respondent threw the brick at the victims and ran off. The respondent's conduct constituted the aggravated burglary with intent offence (count 2 on the indictment).
At about 11.55 pm on 2 December 1998 the victim was home alone reading in bed in Cloverdale. The victim was a 55‑year‑old woman. The victim heard a loud crashing noise which she went to investigate. The victim found a glass sliding door had been smashed. The victim returned to her bedroom to call the police and activated her duress alarm. The victim was at this point confronted by the respondent holding a garden stake. The respondent jabbed at the victim with the stake and demanded that she give him money. The respondent fled when the duress alarm began to sound. The respondent stole a black sports bag as he was fleeing that was later returned to the victim. The respondent's conduct constituted the second of his aggravated burglary offences and his attempted stealing with violence offence (counts 3 and 4 on the indictment).
At about 1.15 am on 3 December 1998 the victims were asleep at their residence in Cloverdale. The victims were husband and wife. The victims were woken by the sound of smashing glass and the husband went to investigate, arming himself with an axe handle. He saw the respondent standing on the rear patio. The wife retrieved the cordless phone from the kitchen and went to the bedroom to call the police. The respondent entered the house holding a brick in his right hand above his head. The respondent walked to the bedroom where the wife was waiting. The husband hit the respondent over the back of the head with the axe handle. In response the respondent punched the husband in the face and a struggle ensued. The husband punched the respondent in the right eye. The respondent managed to leave the premises. The respondent's conduct constituted the third of his aggravated burglary offences and his assault occasioning bodily harm offence (counts 5 and 6 on the indictment).
On 2 August 1999 the respondent was convicted of the offences on his pleas of guilty. On 17 August 1999 (that is, the date that he was also sentenced for the aggravated burglary offence that he committed on 23 September 1998) he was sentenced to a total effective sentence of 8 years imprisonment for the offences.

Adult offending: 25 December 1998 - 4 x wilful damage and 5 x unlawful assault of a public officer (IND 1686 of 1999)

On 25 December 1998 the respondent was a remand prisoner at Casuarina Prison. Unrest had arisen among a group of prisoners during the afternoon. The unrest escalated into a volatile riot situation which was not suppressed until the early hours of the following morning. During that period a large number of prisoners including the respondent defied, threatened and assaulted prison officers and police officers and caused damage to the prison.
On 11 October 1999 the respondent, as a result of his involvement in the riot, was convicted on his pleas of guilty of four offences of wilful damage and five offences of assaulting a public officer.
On 4 November 1999 the respondent was sentenced to a total of 2 years imprisonment for the offences to be served cumulatively on his existing terms of imprisonment.

The respondent's personal circumstances and antecedents - s 7(3)(g) and s 7(3)(j)[45]

[45] Treatment Progress Report prepared by Mr Summerton (exhibit 1, vol 2, 403); Treatment Progress Report prepared by Dr Turoy-Smith (exhibit 1, vol 2, 427); Medical Progress Notes 3 October 2023 - 23 November 2023 (exhibit 1, vol 3, 462); Medical Record Notes 23 November 2023 - 16 January 2024 (exhibit 1, vol 3, 480).

In The State of Western Australia v Pickett[46] Smith J described the respondent's personal circumstances up until around the time that he committed the index offences in the following terms which I adopt:
Mr Pickett attended numerous primary schools. He struggled to cope with schoolwork. He was often in trouble for fighting and frequent truancy. He was expelled from primary school.
Mr Pickett commenced sniffing glue prior to the age of 13, as the friends that he associated with did this. His glue use became problematic and often occurred on a daily basis, and resulted in him breaking into hardware stores and stealing tins of glue. He then used solvents, and associated with this peer group for about a year. Just after he ceased sniffing solvents and glue, he started using cannabis and first tried alcohol.
Mr Pickett's relationships with his siblings deteriorated and behavioural problems commenced in the last year of primary school, when he began running away from home, lying to his parents, truanting from school, stealing money and shoplifting to fit in with his peer group. His offending behaviour eventually led to his being sentenced to juvenile detention at 12 years of age in 1990 as a result of a large number of convictions for stealing motor vehicles and joyriding.
Mr Pickett had difficulties with reading and writing during his primary school years and was held back a year of school at some point. After being released from detention, he attended high school in Fremantle for two days before leaving school for good.
…
In July 1997, (at the age of 19 years old) he engaged in the only paid employment he has had, which involved working in a factory in Myaree that made conveyor belt parts. He quit the job after two months as he claimed that the foreman was giving him jobs that he was not supposed to do and he did not want to get into a fight with him.
At about this time, Mr Pickett met a woman who became his long term girlfriend and they began to cohabit. They used amphetamines and cannabis together and argued over his engagement in criminal activities. The relationship ended after 12 to 18 months due to his offending and periods of incarceration.
[46] The State of Western Australia v Pickett [25] - [28], [35] - [36].
In 2008 the respondent married SP. He married SP at Albany Regional Prison after meeting her while she was visiting another prisoner.
SP visited the respondent regularly until January 2019 when their relationship came to an end. However, they remain married.
In late 2023 the respondent resumed contact with SP after she sent a letter to him. The respondent and SP, who lives in a regional town in the south of the State, are now in regular contact by telephone. The respondent reports that SP remains supportive of him and is a stabilising influence. The respondent further reports that SP has expressed her intention to travel to Perth if he is released from prison.
Since around the time that the respondent and SP's relationship ended and up until relatively recently the respondent was in a relationship with RJ. RJ is 48 years old and has four adult children and grandchildren. She has a criminal record, has her own problems with substance use, has changed residences on numerous occasions and has endured some periods of homelessness.
The respondent has recently decided to end his relationship with RJ because he is aware that by being in a relationship with her in the community he would be placing himself in a high risk and stressful situation. He has removed RJ from the list of people that can contact him in prison. It is not clear on the evidence before me if the respondent has actually informed RJ that he no longer wishes to be in a relationship with her.
The respondent reports that SP is aware of his past relationship with RJ.
The respondent does not have any children.
The respondent has maintained connections with immediate family throughout his time in prison.
The respondent's father passed away in recent years. The respondent's mother, who was a prominent figure in his life, passed away in November 2023. Prior to their passing the respondent's parents were an ongoing source of support for him.
The respondent has three brothers and three sisters who live in Western Australia and are reportedly supportive of him and prosocial (save for one brother who is also incarcerated).
There are a significant number of extended family members that the respondent is yet to meet given that they were born after he was imprisoned.
The respondent's drug of preference has always been methylamphetamine.
In mid-2017 the respondent requested to be prescribed Methadone to assist him to deal with his drug cravings and associated high levels of stress. At the time he presented with depressed mood, anxiety and sleep disturbance. He was prescribed Mirtazapine, Quetiapine and Methadone.
Up until the first review of the CDO the respondent was heavily reliant on the medications referred to in the previous paragraph to cope in the prison environment. However, after the first review and in light of some of the evidence adduced at the first review the respondent ceased taking Methadone and Quetiapine in 2021 and 2022 respectively.
The respondent is currently prescribed the mood stabiliser Sodium Valproate (Epilim), Desvenlafaxine for his depression and medication for his Type 2 Diabetes.
Since some time prior to 5 October 2023 the respondent has been prescribed gradually increasing doses of Buvidal which is an injectable form of Buprenorphine. The doses have been administered by depot injection. Since 17 November 2023 the respondent has been receiving monthly doses of 96 mg of Buvidal.

The respondent's prison behaviour since the first review - s 7(3)(j)[47]

[47] Psychiatric report (exhibit 1, vol 2, 417; Progress Treatment Report (exhibit 1, vol 2, 429 - 430; Community Supervision Assessment Report (exhibit 1, vol 2, 441 - 443); Medical Progress Notes 3 October 2023 - 23 November 2023 (exhibit 1, vol 3, 462); Medical Record Notes 23 November 2023 - 16 January 2024 (exhibit 1, vol 3, 480); exhibit 2.

The respondent is currently imprisoned at Casuarina Prison.
Throughout his time in prison up until the first review the respondent continued to use drugs.[48]
[48] The State of Western Australia v Pickett [48] - [53]; Curthoys J's oral reasons for decision: ts 222, 16 September 2021.
Since the first review the respondent has tested positive to substances on three occasions. In October 2021 he tested positive to Buprenorphine and cannabis. In July 2022 he tested positive to Buprenorphine. In May 2023 he tested positive to Buprenorphine.
The respondent was subjected to random urinalysis testing on 26 September 2023. He produced a negative result for all illicit substances.
It is apparent from the respondent's recent medical records that he has on his own admission, since around October 2023 and at least up until his monthly prescribed dose of Buvidal was increased to 96 mg, been illegally using Buprenorphine in the prison environment between his prescribed doses of Buvidal.
Since the first review the respondent has incurred several incident reports predominantly associated with use of substances.Two of the incident reports relate to the respondent misusing the telephone system to discuss the transfer of money through PayID (alleged to be for illicit substances). Another of the incident reports concerns an attempt by the respondent to secrete medication.
A further incident report relates to RJ, on 1 March 2022, attempting to provide cannabis and Chronic (a synthetic cannabinoid) to the respondent during a prison visit. RJ was charged with, and convicted of, an offence as a result of her conduct.
On 4 April 2023 the respondent was involved in an incident where he damaged a toaster by throwing it at a door due to feeling frustrated with other prisoners' lack of cleanliness. As a consequence he was removed from his unit employment as a cleaner and moved to another wing of the unit.
On 11 May 2022 the respondent engaged in self-harming behaviour. He cut his forearms using razor blades that he subsequently handed to prison staff.
On 9 August 2022 the respondent made a serious attempt at suicide by hanging himself in his cell. He was placed in the crisis care unit. Days later he ascended the roof and jumped off in order to make his way back to his living unit. His stated reason for doing so was to be reunited with family members who he identified as his primary source of support at the time. He injured his back (fractures) in the process of jumping off the roof.
The respondent does not currently have any employment within the prison environment.

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

Participation in programmes and counselling prior to first review

The respondent has over the years undertaken numerous prison based intervention programmes targeting his offending behaviour including the following:[49]
[49] Pickett v The State of Western Australia [118].
1.Intensive Substance Use Programme in mid-1996;
2.Skills Training for Aggression Control Programme (STAC Programme) completed in December 1996;
3.Violent Offender Treatment Programme (VOT Programme) in November 2005;
4.Individual counselling in 2006 and 2007;
5.Moving on from Dependencies Programme (MOFD Programme) in April 2007;
6.Think First Programme in September 2007;
7.Pathways Programme in September 2011;
8.Break your Cycle of Offending Programme in 2013;
9.Think First Programme from October 2015 to January 2016; and
10.Cognitive Skills Programme in 2017.

During the period between the making of the CDO and the first review, the respondent attended a total of eight intermittent counselling sessions with his treating psychologist Mr Summerton. He did not attend the sessions on a consistent basis. He chose not to attend eight scheduled sessions. He subsequently asserted that he did not want to participate in further counselling or any assessment or engagement associated with being detained under the Act as a high risk serious offender.[50]

Individual psychological counselling with Mr Summerton since first review

Treatment Progress Report[51]

[50] Treatment Progress Report prepared by Dr Dylan Galloghy of the Department's Forensic Psychological Service dated 31 March 2021 (exhibit 1, vol 1, 372).

[51] Exhibit 1, vol 2, 403.

Mr Summerton's Treatment Progress Report reveals the following about the respondent's engagement in psychological counselling since the first review and the progress he has made as a result of his engagement.
After the first review counselling with the respondent was suspended because he again refused to attend counselling. However, in February 2022 the FPIT received a message from the Prison Health Service to the effect that the respondent had requested contact with Mr Summerton and his senior CCO. Following this request Mr Summerton ultimately resumed counselling with the respondent in March 2022.
The respondent has attended in excess of 30 counselling sessions since the first review. Some of the sessions have been brief due to the respondent's perceived incapacity to sustain attention. On other occasions the sessions have essentially involved a welfare check.
Mr Summerton's continuity of contact with the respondent has been affected by a range of issues including COVID-19, prison staffing issues, and the respondent's suicide attempt and subsequent back injury due to him jumping off a roof in order to make his way back to his living unit. Further, for prison operational reasons some of Mr Summerton's sessions with the respondent have taken place in the prison's official visits area which is not conducive to healthy and meaningful therapeutic engagement.
Throughout his involvement in counselling the respondent has been consistently reliant on external prompting and guidance in addressing relevant treatment targets. In Mr Summerton's view the respondent is an individual who is not psychologically minded and who has an underdeveloped reflective capacity.
In Mr Summerton's view there is evidence of psychological dependence within his therapeutic relationship with the respondent which seems to be consistent with a broader tendency on the part of the respondent to submit to the guidance or influence of others (including peers).
The respondent experiences difficulty substantially regenerating what has been addressed in prior sessions although he has been able to do so with prompting. In Mr Summerton's view the respondent's reticence in this respect appears to relate in part to self-consciousness and his fear of getting things wrong.
In addition to an ongoing motivational framework, the focus of counselling has been on the respondent's current and future coping and self-management in anticipation of his potential release to the community. An overarching approach to counselling has involved a motivational/support type intervention in terms of keeping the respondent orientated to the possibility of release.
Around the time of counselling resumption the respondent was charged in relation to his role in having drugs trafficked to him during visits by RJ. He incurred a further charge for drug use (Buprenorphine).
The respondent acknowledged to Mr Summerton that drug use was an ongoing challenge for him. He attributed his drug use in part to the cessation of his Methadone prescription and psychotropic treatment that had functioned to stabilise his moods.
In Mr Summerton's view the respondent's suicide attempt in August 2022 reflects the fragility of his coping mechanisms and also his emotional dependence on others. In Mr Summerton's contact with the respondent soon after the suicide attempt, the respondent was immediately self-condemning and referred to his behaviour as stupid. The respondent emphasised that he wanted to live and to be released from prison.
In Mr Summerton's view the respondent's contact with his immediate and extended family will be important to him as he transitions to life in the community.
The respondent has identified his oldest sister and younger brother as the primary individuals to whom he would look for support in the community.
The respondent has expressed fears surrounding release and adapting to life in the community. He has often commented to the effect, 'It stresses me out; it's going to be hard, I've never been in the community'.
During counselling and with reference to his sexual offending the respondent commented to the effect, 'I've done what I've done, I can't change that'. Over subsequent sessions this concession by the respondent led to an increased consideration of his sexual offences.
In Mr Summerton's view the respondent does not have substantial insight into his sexual offending 'beyond it having occurred [in] the context of significant and sustained dysregulation in the process of supporting his drug use that involved a number of interpersonal confrontations in the process of carrying out burglaries'. In Mr Summerton's view in the absence of any pattern of sexual aggression it is likely that the respondent's sexual offending was opportunistic and occurred in the context of disinhibition and a broader disregard for others, as was the case with his violence.
According to Mr Summerton, in accepting responsibility for his sexual offences the respondent's demeanour noticeably lifted and he described a sense of relief at his disclosure. In Mr Summerton's view the respondent 'has achieved relative comfort and a sense of acceptance in associating with a range of others who have an awareness of his offending, which will hopefully promote a positive engagement with future supervision'.
The respondent attributed his enduring lifestyle instability to sexual abuse that he experienced prior to the age of 10 which purportedly led to acting out, gradual exposure to antisocial peers and sustained engagement in criminal activity.
Following the respondent's acknowledgement of responsibility for his sexual offences Mr Summerton addressed with the respondent concepts such as informed consent. The respondent demonstrated a reasonably robust understanding in this regard centering on overt negotiation and awareness of non‑verbal cues. The respondent further volunteered that individuals affected by substance use are unable to give consent. The respondent's knowledge was supplemented with further information around age, mental health, cognitive capacity and relevance of sexually transmitted diseases.
Mr Summerton wove into his sessions with the respondent emotional regulation and development of coping skills. Despite regular repetition of skills (not aided by the irregularity of sessions) the respondent had trouble establishing skills such as mindfulness other than in 'some hybridised form'.
According to Mr Summerton the respondent has gravitated to practical coping skills typically in the form of seeking external support and talking through problems with others. He has also identified involvement in painting and exercise as positive pursuits and ways of managing stress. In Mr Summerton's view, overall, the respondent's coping has a marked avoidance component that involves him either walking away from perceived conflict or avoiding parties who he perceives as hostile or otherwise likely to impact on him negatively.
Mr Summerton has routinely addressed drug refusal skills with the respondent during sessions. However, in Mr Summerton's view the evidence would suggest only varying success in this respect.
In terms of potential for drug use, the respondent has maintained a resolute position that drug use would not be an option for him in the community setting given an anticipated regime of regular urinalysis and his understanding of the serious consequences for him of drug use. In addition to stating that he will avoid negative influences, the respondent has adamantly stated that he has the capacity to refuse offers to purchase and/or use drugs and that he would impress upon others the serious consequences for him in this regard. The respondent identified that he would appeal to specific family members to play a role in shielding him from negative influences.
Mr Summerton has reintroduced assertive communication with the respondent. However, in Mr Summerton's view any skills in this regard are likely to be acquired in debriefing after actual situations with the respondent as they arise in the community.
The respondent has consistently experienced difficulty envisaging life in the community and this prospect has been anxiety‑provoking for him. At no stage has the respondent downplayed the challenge that this might present for him. The respondent has expressed motivation to obtain employment although in Mr Summerton's view this would be considered a medium‑term goal as opposed to something that requires immediate attention.
In Mr Summerton's view notwithstanding the anguish and defeat that he experienced when he was initially designated a dangerous sexual offender, the respondent appears 'to have adjusted his position in acknowledging that his capacity to effect long‑term adjustment [in] the community would best be served through structure and support'.
Mr Summerton has addressed with the respondent the likely conditions of any supervision order including GPS tracking, a curfew and urinalysis. The respondent has consistently expressed a willingness and capacity to adhere to such conditions.
In Mr Summerton's view perhaps one of the most significant changes for the respondent is his belief that people within the wider justice area and other support structures, in addition to community protection, are working towards his best interests. In Mr Summerton's view it seems inevitable that the respondent will be dependent on external supports at least over the medium term.
Mr Summerton summarises the position by saying that the respondent has made some progress since the first review, although there are obviously aspects of his behaviour and functioning that remain concerning. He is of the view that aspects of the respondent's maladaptive coping are a function of his institutionalisation and an associated level of hopelessness and difficulty conceiving of a life beyond the prison environment.
In Mr Summerton's view a central factor in the respondent's attitudinal change has been a reorientation to accepting support from official sources. He considers that the respondent's increased acceptance of support is related to him having more openly addressed aspects of his offending and antisocial behaviour which has seemingly had the effect of him feeling relatively less likely to be negatively judged and thus less inclined to withdraw. He considers that 'in a community setting the balance of prosocial versus antisocial influences will obviously be more amenable to shift in a positive direction'.
If the respondent is released into the community on a supervision order he will attend weekly counselling. The focus of the counselling will be largely aimed at adjustment and risk management. There will be the potential to more substantially address adverse childhood events and process grief issues that have not been amenable to substantial input within the prison setting.
In Mr Summerton's view, although the respondent is not psychologically minded and will not benefit from a primarily insight‑based approach, he has demonstrated some capacity for new learning. Mr Summerton considers that the most appropriate overall framework to assist the respondent to adjust to the community would be one of support, monitoring and guidance from sources largely beyond the counselling context. He considers that counselling is unlikely to promote any further substantial change within the custodial setting and that it seems likely that the respondent will 'again retreat' if he is detained on a continuing detention order.

Reports prepared under s 74 and extent to which respondent cooperated in examination - s 7(3)(a)

Dr Wojnarowska's evidence

Report dated 7 September 2023[52]

[52] Exhibit 1, vol 2, 412.

Dr Wojnarowska's report reveals the following.
In preparing her report Dr Wojnarowska reviewed Mr Summerton's Treatment Progress Report. She also spoke to Mr Summerton.
Dr Wojnarowska interviewed the respondent on 8 August 2023.
The respondent engaged well during the interview. However, he did not want to discuss his offences other than saying that 'they were horrible things'.
The respondent told Dr Wojnarowska that he had 'changed a lot' since she had last interviewed him.
The respondent stated that he liked attending his sessions with Mr Summerton. He said he found them helpful.
The respondent expressed no objections or anxieties in relation to possible supervision order conditions.
When Dr Wojnarowska asked the respondent why RJ had brought drugs to him in prison, he took responsibility saying he had 'really forced her', although he did not explain how he had forced her.
The respondent stated that he was no longer taking illicit substances and that his last 'dirty' urine was last year when he tested positive for Buprenorphine. He stated that Epilim (Sodium Valproate) which he has been taking for a few years assists him to stay 'stable and less angry' and helps him with 'not getting involved in any incidents'. The respondent acknowledged being 'stressed about getting out'. He stated that he would 'need a lot of support'.
When Dr Wojnarowska questioned the respondent about his sexual offences, he stated that he did not wish to discuss the details. He said that he agreed with 'everything that was said in the reports, statement of material facts and court hearings'. He stated that he committed the offences because 'it happened to me at that time I wanted someone to feel pain'. He stated what he had done was not right and he felt really sorry. He further acknowledged he had not owned up to his offending for years but that he had now done so due to his counselling. He stated, 'I accept what I have done, I'm a man and I'm sorry for it'. He further stated that he had never offended against children or his intimate partner.
The respondent attributed his offending history to being sexually abused by a family member. He stated that since that time he was 'very angry…running away, suspended, expelled, stealing and getting into lots of trouble'. He stated that he did not tell his parents about the abuse until he was an adult.
The respondent reported two suicide attempts since 2022. He attributed his suicidal ideation to stress from other prisoners who targeted him and made fun of him, to thoughts of being on an order and how he would cope, and to grief in relation to his father's death and his mother's illness. He stated that at the time of his suicide attempts he was no longer taking Methadone and Quetiapine which had in the past helped him to deal with stressors. He stated that he now deals with difficult situations by redirecting his thoughts to more positive thoughts, going for a run or painting. He also stated that since commencing Epilim he has stabilised.
The respondent stated that his goal was to live in the community with his partner RJ (at the time the respondent was still in a relationship with RJ) and 'maybe have a family one day'. He stated that he did not want to spend any more time in prison. He was able to identify the warning signs of him relapsing into substance use as being associating with people who use drugs and missing appointments. He reported that he enjoyed working on cars and said that this was a possible employment option for him as was working in the mines. He stated that in the future he would like to attend TAFE and complete his art degree.
The respondent revealed a good understanding of what would be expected of him under the conditions of a supervision order.
Dr Wojnarowska detected in the respondent no evidence of depressive cognitions, suicidal thoughts or other psychiatric symptoms.
In Dr Wojnarowska's opinion the respondent meets the criteria for the following psychiatric diagnoses:
1.Social Personality Disorder; and
2.Substance Use Disorder currently in remission while in custody.
Dr Wojnarowska found no evidence of psychopathy or sexual deviance in the respondent.
In Dr Wojnarowska's opinion the results of Dr Mandy Vidovich's neuropsychological assessment of the respondent (see below) indicate that he is cognitively capable of engaging in psychological treatment.
Dr Wojnarowska assessed the respondent's risk of future offending by using the Static-99R risk assessment tool, the Hare Psychopathy Check‑list-Revised (Hare 1991 and 2022) (PCL-R) and the HCR-20 risk assessment tool.
The respondent's Static-99R score was 1. This score places the respondent in the 'Average Risk' range for risk of reoffending. This means that the respondent's overall risk of reoffending within five years is 4.6%. In routine samples of sexual offenders the average five-year recidivism rate is between 5% and 15%. This means that out of 100 sexual offenders of mixed risk levels, between 5 and 15 will be charged or convicted of a new sexual offence after 5 years in the community.
Dr Wojnarowska makes the point that Static-99R does not measure all relevant risk factors and that a person's recidivism risk may be higher or lower than indicated by a Static-99R score.
The PCL-R assesses the extent to which an individual's personality structure conforms to the clinical construct of psychopathy. The score obtained is an important component of other risk assessments tools including Structured Clinical Guides which use both static and dynamic risk factors.
The respondent's score on the PCL-R was in the moderate range, below the threshold usually required to confirm a diagnosis of psychopathy. The respondent scored in the low range in the aspects of the instrument that measure Interpersonal and Affective Functioning and in the high range of the aspect measuring Social Deviance. Persons with high scores on the social deviance scale tend to be impulsive and unstable, possess a varied and persistent antisocial lifestyle with frequent and serious violations of social and legal expectations and standards from a young age.
The respondent's high score on the Social Deviance aspect of the PCL‑R reflects the respondent's tendency to impulsivity, poor behavioural control, early behavioural problems, juvenile delinquency and revocation of conditional release. Research suggests that impulsivity improves with age and that for most individuals it can also improve with appropriate treatment. Dr Wojnarowska notes that the Social Deviance aspect of the PCL-R predominantly captures the diagnostic criteria for antisocial personality disorder.
The HCR-20 is a broad band violence risk assessment with potential applicability to a variety of settings. The HCR-20 aligns markers into past, present and future. The HCR-20's 10 historical factors obviously concern the past. However, the HCR-20 contains five clinical items that are meant to reflect current dynamic (changeable) correlates of violence. The future is recognised in the five risk management items which focus attention on situational post-assessment factors that may aggravate or mitigate risks.
In relation to the HCR‑20 clinical factors Dr Wojnarowska makes the following observations:
1.Emotional Coping Ability: There has been an improvement in the respondent's mental state and in his attitude to treatment and to professional supports. In addition, the respondent has developed some skills and emotional regulation by choosing to walk away from conflict situations, going for a run, painting and seeking supports. He has also developed some insight into his difficulties and shortcomings. He still lacks confidence, relies on others to shield him at times of stress and has a tendency to regress to avoidant behaviours;
2.Impulsivity: The respondent is highly impulsive. His current treatment with Sodium Valproate and engagement with counselling can mitigate his impulsivity to some degree but this factor will always be highly relevant to his management in the community; and
3.Mental Health: The respondent's mental state is currently stable. There is a low risk of him ceasing his medications in the community and therefore he will require follow up by his general practitioner. He remains vulnerable to psychosocial stressors which may lead to a deterioration of his mental state or result in substance use and offending.

Risk of committing serious offences if not subject to a restriction order - s 7(3)(h)

Dr Wojnarowska is of the opinion that the respondent is at high risk of committing violent offences and sexual offences that are serious offences as defined in the Act if he is not subject to a restriction order; that is, to a continuing detention order or a supervision order.
In her evidence Dr Wojnarowska clearly explained her reasons for arriving at her conclusion in relation to the respondent's risk of reoffending. There were no flaws in her reasoning process. Further, her evidence in this regard was not challenged.
I accept Dr Wojnarowska's evidence as to the respondent's risk of committing violent offences and sexual offences that are serious offences as defined in the Act if he is not subject to a restriction order.
On the basis of Dr Wojnarowska's evidence, and having regard to the offences that the respondent has in the past committed and my above stated finding in relation to his propensity to commit offences, I am satisfied of the following matters:
1.The respondent is at high risk of committing further violent offences and further sexual offences that are serious offences as defined in the Act if he is not subject to a continuing detention order or a supervision order;
2.The serious offences that the respondent is at high risk of committing if he is not subject to a continuing detention order or a supervision order include, but are not limited to, robbery and armed robbery contrary to s 392 of the Criminal Code (WA) (Code) and sexual offences contrary to s 324 - s 326 of the Code; and
3.The actual violence that the respondent is at high risk of inflicting while committing an offence contrary to s 392 of the Code includes violence capable of causing physical injury.

The need to protect the community - s 7(3)(i)

There is an obvious need to protect the community from the risk that the respondent presents. The type of serious offences that the respondent is at risk of committing are obviously of such a nature as to likely cause significant physical, and also psychological, harm to victims.

Any other relevant matter - s 7(3)(j)

There are no matters relevant to the determination of the application to which I have not already referred.

Analysis and decision

The relevant questions

Given the terms of s 68(1) of the Act, the questions that I must answer in order to determine the outcome of the application are as follows:
1.Does the respondent remain a high risk serious offender within the meaning of s 7(1) of the Act? and
2.If the respondent does remain a high risk serious offender, should the continuing detention order be affirmed or should the continuing detention order be rescinded and a supervision order made?

The parties' submissions - summary

The State submits that I should find that the respondent remains a high risk serious offender.[63]
[63] Applicant's Outline of Submissions dated 16 October 2023 (Applicant's Submissions), par 1 and 187.
The State does not submit that if I find that the respondent remains a high risk serious offender I should make a continuing detention order. Rather, the position taken by the State is that it does not oppose the respondent being made the subject of a supervision order containing the conditions proposed for my consideration by Ms Dabala with his accommodation being the proposed residence.[64] In arriving at this position the State recognises that the respondent has, through counselling, made some positive progress with respect to his treatment needs and accepts that this fact supports the conclusion that his risk can be managed in the community under a supervision order.[65] In arriving at this position the State has also taken into account the availability to the respondent of the proposed residence and the urinalysis testing that the respondent will be subjected to under the conditions of a supervision order.[66]
[64] Applicant's Submissions, par 2 and 189; ts 227, 18 October 2023; ts 275, 30 January 2024.
[65] Applicant's Submissions, par 188.
[66] ts 275, 30 January 2024.
The respondent does not attempt to argue that I should not find that he does not remain a high risk serious offender. The respondent concedes that the available evidence is sufficient to establish that he remains a high risk serious offender.[67] Of course, the fact that the respondent takes this position does not absolve me from the responsibility of determining the question for myself on the basis of the evidence before me.
[67] ts 230, 18 October 2023.
The respondent submits that he has discharged his burden of proving that he will substantially comply with the standard conditions of a supervision order.[68] He submits that I should, on the evidence, find that the community will be adequately protected from the risk that he poses by releasing him on a supervision order containing the conditions proposed for my consideration by Ms Dabala with his accommodation being the proposed residence.[69]

Does the respondent remain a high risk serious offender?

[68] ts 230, 18 October 2023; ts 277, 30 January 2024.

[69] ts 277, 30 January 2024.

I have already stated my finding that the respondent is at high risk of committing further violent offences amounting to serious offences and further sexual offences amounting to serious offences if he is not subject to a continuing detention order or a supervision order. On the basis of this finding and having regard to all other matters specified in s 7(3) of the Act to which I have referred, and notwithstanding that the respondent has already been punished for the offences he has committed, I am satisfied to a high degree of probability that the risk that the respondent will commit serious offences of the type that I have identified is unacceptable and that it is necessary to make a continuing detention order or a supervision order in relation to the respondent to ensure adequate protection of the community against the risk. It follows that I find that the respondent remains a high risk serious offender.

Continuing detention order or supervision order?

The question that remains for my determination is whether the respondent should be detained pursuant to a continuing detention order, or whether he should be released into the community on a supervision order. In determining this question it is, I think, important to bear in mind the following observations of the plurality in Garlett v The State of Western Australia[70] as to the purpose of the Act (citations omitted):
The purpose of a legislative regime, such as the [DSO Act] or the [Act], is discernibly distinct from the imposition of retribution or deterrence pursued by the criminal law. To the extent that detention or supervised release is part of the legislative regime, the character of the curtailment of the liberty of the individual offender under the regime can be seen to be protective rather than punitive because any curtailment of liberty must be supported by the risk evaluation contemplated by s 7 of the [Act]. In that evaluation, considerations of retribution and deterrence, central to sentencing by way of punishment under the common law, have no part to play. In addition, any curtailment of liberty must be no greater than is necessary adequately to protect the community from the demonstrated unacceptable risk of harm to the community…
[70] Garlett v The State of Western Australia [65].
As I have previously indicated, by s 29(1) and s 29(2) of the Act I cannot make a supervision order unless the respondent has satisfied me on the balance of probabilities that he will substantially comply with the standard conditions of the order.
The respondent is now 45 years old. He has been in prison for the past 23 years. He is institutionalised.
The respondent is an emotionally dependant man who is susceptible to negative influences from others. He is impulsive. He is vulnerable to psychosocial stressors. His coping skills are limited. He has a chronic illicit drug addiction problem that he is likely to continue to struggle with for some time. If he is released into the community there will be a risk of him relapsing into illicit drug use. These factors can be said to weigh against the conclusion that he will substantially comply with the standard conditions of a supervision order.
There are, however, significant countervailing considerations.
The respondent has since the first review of the CDO admitted and accepted responsibility for his offences. His acceptance of responsibility in this respect is significant because it has led to him becoming open to receiving supervision and support from external sources including the COMU.
The respondent has for some time now done his best, considering his cognitive and psychological limitations, to fully engage in psychological counselling with Mr Summerton. He has developed a trusting and beneficial therapeutic relationship with Mr Summerton as evidenced by his recent recourse to Mr Summerton on being told about his mother's passing.
The respondent has made some gains as a result of his counselling with Mr Summerton. He is able to identify his main risk factors for offending. He has some insight into the factors that led to his offending. He has demonstrated an understanding of informed consent. He has also demonstrated a basic understanding of perspective taking, assertive communication, peer refusal skills and relationship issues.
If the respondent is released on a supervision order he will inevitably be required to continue with psychological counselling. His treating psychologist will continue to be Mr Summerton.
It is apparent from Mr Summerton's evidence that if the respondent is released on a supervision order psychological counselling will play a somewhat subsidiary role in assisting the respondent to adjust to life in the community under the conditions of the order. Such assistance will in the main be provided by those responsible for the day-to-day supervision and management of the respondent under the conditions of the order. Nonetheless, the respondent's ongoing engagement with Mr Summerton will still play an important role in helping the respondent to adjust to life in the community. The respondent's ongoing engagement with Mr Summerton will also play an important role in the management of the respondent's risk in the sense that engagement will inevitably facilitate and contribute to the early identification, monitoring and addressing of any problems being experienced by the respondent that could lead him to resort to maladaptive coping behaviours such as illicit substance use and consequently to being at an increased risk of reoffending. In addition, over time counselling is likely to provide the respondent with the opportunity to address some of his treatments needs.
The respondent is cognisant of the difficulties and challenges that he will face if he is released into the community. He realises that he will need considerable ongoing support to adjust to life in the community. He is willing to accept such support.
The respondent recognises his illicit drug addiction issues. He has reasonable insight into the direct causal relationship between his illicit drug use and his offending. He appreciates what the consequences for him will be if he is released into the community but relapses into substance use. He has some, albeit relatively rudimentary, strategies (avoidance) for abstaining from illicit drug use. He has expressed determination not to relapse into illicit drug use if he is released into the community.
The respondent's mental health under his current mental health medication regime (Sodium Valproate and Desvenlafaxine) is stable. There is no reason why he will not be able to remain on his mental health medication regime if he is released into the community. Nor is there any reason why he will not be able to continue to be prescribed Buvidal as part of assisting him to deal with his cravings for illicit drugs.
The respondent has available to him supported accommodation in the community under the Uniting WA SAP in the form of the proposed residence. I recognise, given the results of the Desktop Spatial Analysis, that the proposed residence is not ideal accommodation for the respondent. However, accommodation for high risk serious offenders is in my experience almost never ideal and in my view it is highly unlikely that any more suitable supported accommodation will be able to be found for the respondent. Further, Dr Wojnarowska is of the view that the proposed residence is suitable for the respondent taking into account the support that will be provided to him by Uniting WA as part of the SAP and the stringent supervision order conditions proposed for my consideration by Ms Dabala.
I am satisfied that the proposed residence is a suitable place for the respondent to live at least in the short term and until he, with the assistance of the COMU and others responsible for his supervision and management in the community, is able to find other stable and suitable long term accommodation. Consistently with the opinion expressed by Dr Wojnarowska, I am satisfied that permitting the respondent to live at the proposed residence will not prevent his risk of reoffending being properly managed. I am so satisfied bearing in mind the support that the respondent will receive from Uniting WA while he lives at the proposed residence.
The respondent, if he is released on a supervision order, will be subject to a high level of supervision and control. The conditions proposed for my consideration by Ms Dabala are stringent and extensive. They directly address the respondent's risk factors as disclosed by the evidence to which I have referred. The conditions are such that they will, in my opinion, enable those responsible for the supervision and management of the respondent to detect at an early stage anything that may signal an increase in the risk of him reoffending (for example, alcohol and/or illicit substance use). More specifically, I am satisfied that there are adequate safeguards contained in the proposed conditions to ensure that if the respondent begins to exhibit signs that his level of risk is increasing or begins to engage in risk associated behaviours this will be quickly detected and dealt with by those responsible for his supervision and management in the community. The conditions will also, in my opinion, enable those responsible for supervising and managing the respondent to facilitate his reintegration into the community.
The respondent has indicated a strong commitment to complying with the conditions of a supervision order. In Dr Wojnarowska's assessment the statements that the respondent made to her to this effect were earnest and genuine. Dr Wojnarowska did not detect any impression management on the part of the respondent.
Dr Wojnarowska is of the opinion that the respondent's risk of committing a serious offence can be managed in the community provided he lives in the proposed residence and is subject to the 44 conditions proposed for my consideration by Ms Dabala. This expression of expert opinion is obviously not determinative of the question whether the respondent should be released into the community on a supervision order, this being a question that it is ultimately my responsibility alone to determine. Nonetheless, Dr Wojnarowska's expert opinion on this point is obviously deserving of some weight.[71]
[71] Director of Public Prosecutions (WA) v GTR [62].
The State does not oppose the respondent being made the subject of a supervision order containing the conditions proposed for my consideration by Ms Dabala with his accommodation being the proposed residence.[72] Although I am obviously not bound to make a supervision order because the State does not oppose me doing so, clearly the position adopted by the State is a significant factor in favour of the respondent being released on a supervision order.
[72] Applicant's Submissions, par 2 and 189; ts 227, 18 October 2023.
Finally, it is clear that the respondent is unlikely to make any further gains if he remains in custody. To the contrary, there is a real possibility that he will disengage from all current supports if the CDO is affirmed.
Ultimately, taking into account the matters to which I have referred in par 282 - 296 above I am, consistently with the submissions made by both the State and the respondent, satisfied on the balance of probabilities that if the respondent is released on a supervision order containing the 39 'non-standard' conditions proposed for my consideration by Ms Dabala he will substantially comply with the five standard conditions specified in s 30(2) of the Act. That is, I am satisfied that the respondent will comply with the standard conditions in a manner and to an extent that will ensure adequate protection of the community from the unacceptable risk of him committing a serious offence.
I am also, in light of the matters to which I have referred, satisfied that the need to ensure adequate protection of the community can be met by releasing the respondent on a supervision order containing the 44 conditions proposed by Ms Dabala. I am satisfied that the proposed conditions, which of course include the standard conditions, are sufficiently extensive and stringent to enable the adequate management of the risk that the respondent currently presents to the community.
In relation to the period of the supervision order, Dr Wojnarowska's evidence was, as I have already indicated, that the order should be for a period of five years. Dr Wojnarowska explained her reasons for holding this view. I accept Dr Wojnarowska's evidence on this issue. I am therefore satisfied that the supervision order should be for a period of five years.

Suppression order

During the hearing of the application the State applied for an order suppressing the publication of the address of the proposed residence. The application for the suppression order was made, in essence, on the ground that if I found that the respondent remained a high risk serious offender but could be released on a supervision order containing a condition requiring him to live at the proposed residence, disclosure of the address might expose the respondent and the proposed residence itself to vigilante action. A further ground for the application was to ensure the safety of COMU staff and other persons who might attend the proposed residence to supervise the respondent.
A suppression order should only be made if the making of the order is really necessary to secure the proper administration of justice in proceedings before the court. There must be some material before the court upon which the court can reasonably reach the conclusion that it is necessary to make the order prohibiting publication.[73]
[73] The State of Western Australia v Jonsson [No 3] [2019] WASC 463 [147].
As a general proposition it can be accepted that members of the community have a legitimate interest in being aware of the identity and presence of offenders in their community. However, this interest must be balanced against the potential subversion of the viability of a supervision order.[74]
[74] The State of Western Australia v Jonsson [No 3] [148] - [149]; The State of Western Australia v JXK [No 3] [2023] WASC 23 [184].
I accept that publication of the address of the proposed residence might lead to the outcomes identified by the State. Further, if this does occur it will be likely that the proposed residence will not be able to continue to be used to house the respondent with the result, given the current absence of other viable accommodation options for him, that the supervision order will become unviable. Indeed, if the outcomes identified by the State were to eventuate it would be likely that the proposed residence would not be able to continue to be used as accommodation for any high risk serious offenders which, given the paucity of available supported accommodation for such individuals, would be a highly undesirable result. I am therefore satisfied that it is necessary to make an order suppressing the publication of the address of the proposed residence. I consider that the making of such an order is necessary to ensure the viability of the supervision order that I am intending to make.

Order

For the reasons I have stated I rescind the CDO and make a supervision order in respect of the respondent pursuant to s 68(1)(b)(ii) of the Act containing the 44 proposed conditions set out in Annexure A. The period of the supervision order will be five years.
In her evidence Ms Dabala also requested that any supervision order include prior to the signature block of the order the following clause as an accompaniment to the conditions regarding electronic device monitoring:
I authorise police officers from the Western Australian Police Force (WA Police Force) to access any cloud-based platforms or services associated with the devices I use, and examine the internet accounts at any time for the purposes of monitoring my online behaviour (absent any investigation for any offence). I understand and acknowledge WA Police Force will use passwords or tokens located within my devices to access any cloud-based platforms and services and that a password may not be required. By authorising this I understand and acknowledge a Police Officer from the WA Police Force may change the password(s) to these accounts so I will no longer have access for as long as is required for legitimate evidentiary or law enforcement purposes only.
The State supported the inclusion of the above authorisation and acknowledgment in any supervision order that I may make. The respondent did not oppose the inclusion of the authorisation and acknowledgment in any supervision order.
I am aware that in a number of cases in which supervision orders have been made under the Act, the above authorisation and acknowledgement has been included in the orders as a clause appearing above the signature block rather than as a condition of the orders. However, in my view if it is appropriate to include the authorisation and acknowledgment in a supervision order there is no obvious reason why it should not be included as a condition of the order pursuant to s 30(5) of the Act. I am aware that a similar view has been taken by at least one other judge of this court in making a supervision order in respect of a high risk serious offender.[75]
[75] The State of Western Australia v CA [No 3] [2023] WASC 144 [199], [212], [234] (Fiannaca J).
When I raised this issue with counsel neither raised any objection to the authorisation and acknowledgment being included as a condition of the supervision order to be made in respect of the respondent.
I am satisfied that the acknowledgment and authorisation should be included in the supervision order to be made in respect of the respondent. I am also satisfied, in the absence of any objection from the parties, that the acknowledgment and authorisation should be included as a condition of the supervision order. Accordingly, it will be included as condition 45 of the order (with appropriate grammatical and other minor amendments to the precise wording).

ANNEXURE A

PROPOSED SUPERVISION ORDER CONDITIONS

STANDARD CONDITIONS REQUIRED BY THE ACT

Report to a Community Corrections Officer (CCO) at the East Perth Adult Community Corrections Centre 30 Moore Street, East Perth, Western Australia (WA), 6004, within 48 hours of this order being issued 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 business days before the change happens;

Be under the supervision of a CCO, which includes, comply with any reasonable direction of the officer (including direction for the purposes of section 31 or 32);

Not leave, or stay out of the State of Western Australia without the permission of a CCO;

Not commit a serious offence during the period of the Order;

Be subject to electronic monitoring under section 31;

ADDITIONAL CONDITIONS

The following conditions are proposed for the Court's consideration, to assist in monitoring and addressing Mr Pickett's risk factors in the event that he is considered suitable for release subject to a High Risk Serious Offender Supervision Order.

Residence

Take up residence at [the proposed residence] 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 a CCO at your approved release address within normal business hours on the day of release from custody under this order;

Report to, and receive visits from (therefore being under their supervision), a CCO at times and at places as directed by the CCO, such arrangements having regard to any employment commitments you have;

Not commence or change paid or unpaid employment, volunteer work, education, or training without the prior approval of the CCO;

Attendance at programs or treatment

Consult, engage, attend all appointments with any medical practitioner, psychiatrist, psychologist, mentor, support service, counsellor and/or support person nominated by a CCO, as directed by a CCO;

Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious re-offending, as directed by a CCO;

Reporting to WA Police

Report to the Officer-in-Charge of the High Risk Serious Offender team of the Serious Offender Management Squad of the Western Australia Police Force (WA Police) at the Hatch Building, 144 Stirling Street, Perth WA 6000 within 48 hours of your release from custody, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the High Risk Serious Offender team or his/her delegate;

I5.If requested, permit Police Officers to enter and search your residence and/or vehicle, and/or search your person for the purpose of monitoring your compliance with your obligations under this Order and allow the seizure of any such items that the Police Officer/s believe/s to contravene the conditions of the Order;

Remain at your premises and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the provisions of the High Risk Serious Offenders Act 2020;

Disclosure/Exchange of Information

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

Restrictions on contact with Victims

Have no contact, directly or indirectly, with the victims of your sexual and violent offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-offender Mediation Unit of the Department of Justice;

Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual or violent offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victims at all times;

Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997;

Criminal conduct

Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either sexual offences, violence, threats of violence, or the possession of weapons or offensive instruments;

Not commit an offence under s 202, s 203, s 204 Criminal Code 1913 (WA) or s 17(1) Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021;

Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996;

Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014, and your use is in accordance with the instructions of the prescriber;

You must not assault or threaten any member of the departmental staff or an agent providing a service on behalf of the Department of Justice;

Curfew

Be subject to a curfew, pursuant to section 32 of the High Risk Serious Offenders Act 2020, such that you are to remain at and not leave your approved address as directed by a CCO from time to time;

When subject to a curfew under this order, present yourself for inspection at the front door or front yard of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew;

When subject to a curfew under this Order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew,

Prevention of high-risk situations

Maintain a daily diary of your movements, activities and associations, if and as directed, by the CCO and present this diary to your CCO and Police Officer/s upon request;

Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO;

Not to possess, or 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 33;

Not go or remain at any licensed premises unless permitted or required to do so for the following reasons:

a)For the purpose of averting or 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 Police Officer.

Not to remain in the presence of any person who you know, or ought to know, to be affected by alcohol, unless the identity of such person is approved in advance by a CCO;

Not to remain in the presence of any person who you know, or ought to know, to be affected by prohibited drug/s, unless the identity of such person is approved in advance by a CCO;

Not remain in any place where prohibited drugs are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place, or remove the persons consuming prohibited drugs from your residence;

Report at your next contact with your CCO, the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship by you with any person;

As directed by your CCO, make full or partial disclosure regarding your past offending and/or the current order to anyone with whom you commence a friendship, domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer;

Advise a CCO of every telecommunication device in your possession and upon request, permit a CCO or WA Police to access your telecommunication devices, at any location nominated by the CCO or WA Police for the purpose of ascertaining your activities and associations;

Not to delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised, by another person, any data on your telecommunication devices, including but not limited to calls, Short Message Service (SMS), or logs capable of identifying your activities and associations;

Medications/Mental Health

Undertake any medication regime in accordance with a medical practitioner's direction, and to comply with all testing to monitor your compliance with that treatment as directed by a CCO and/or the medical practitioner; and

Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of reoffending and compliance with treatment to the Department of Justice.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick
7 FEBRUARY 2024