The State of Western Australia v Quartermaine [No 2]

[2021] WASC 267

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- QUARTERMAINE [No 2] [2021] WASC 267

CORAM:   SMITH J

HEARD:   20 & 21 JULY 2021

DELIVERED          :   6 AUGUST 2021

PUBLISHED           :   9 AUGUST 2021

FILE NO/S:   SO 16 of 2020

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

LAWRENCE HENRY QUARTERMAINE

Respondent

Catchwords:

High risk serious offender - Whether the respondent is a high risk serious offender - Whether the risk of committing further serious offences can be managed on a supervision order or whether a continuing detention order is necessary

Legislation:

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

Category:    B

Representation:

Counsel:

Applicant	:	Mr B Meertens
Respondent	:	Mr C Astill

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Not applicable

Cases referred to in decision:

Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212

Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 297

The State of Western Australia v ACJ [2021] WASC 219

The State of Western Australia v ZSJ [2020] WASC 330

SMITH J:

The application

1. On 19 October 2020, the State of Western Australia applied for a restriction order under s 48 of the High Risk Serious Offenders Act 2020 (WA) (the HRSO Act) on the basis that the respondent is a high risk serious offender, which if a restriction order is made will require the court to make either:

   (a)a continuing detention order that the respondent be detained in custody for an indefinite term for control, care, or treatment; or

   (b)or a supervision order that he be subject to conditions when not in custody.

2. The respondent has a history of serious sexual offences, and offences of unlawful and indecent assaults against adult women and obscene acts in public.  He also has a history of convictions of offences involving violence including the assault of domestic partners.

3. At a preliminary hearing on 2 March 2021, pursuant to s 46(1), Hill J found there were reasonable grounds for believing that a court might find that the respondent is a high risk serious offender.  Her Honour made an interim order pursuant to s 46(2)(c)(i) that the respondent be detained in custody until the final determination of this application, and made programming orders under s 46(2)(a), s 46(2)(d) and s 74, that included fixing the date of this hearing, and requiring the respondent to undergo examinations by two qualified experts, namely a psychiatrist, Dr Gosia Wojnarowska, and a psychologist, Ms Julie Hasson, for the purposes of preparing reports. 

Statutory framework and legal principles

1. The objects of the HRSO Act are:[1]

   (a)to provide for the detention in custody or the supervision of high risk serious offenders to ensure adequate protection of the community and of victims of serious offences; and

   (b)to provide for continuing control, care or treatment of high risk serious offenders.

   [1] High Risk Serious Offenders Act 2020 (WA) s 8.

2. The court must determine whether the respondent is a high risk offender, and to do so the court is to determine if there is a risk that the respondent would commit a serious offence.

3. A serious offence is an offence that is specified in sch 1, div 1 of the HRSO Act, or specified in sch 1, div 2, and is committed in circumstances indicated in relation to that offence in div 2.[2]

   [2] High Risk Serious Offenders Act 2020 (WA) s 5(2).

4. Section 7(1) of the HRSO Act provides:

   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.

5. The State bears the onus of satisfying the court that an offender is a high risk serious offender.[3] The court, in considering whether it is satisfied of the matters in s 7(1), must have regard to the following matters listed in s 7(3) of the HRSO Act:

   [3] High Risk Serious Offenders Act 2020 (WA) s 7(2).

   (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.

6. In addition, the court must disregard the possibility that the person might temporarily be prevented from committing a serious offence by imprisonment, remand in custody, or the imposition of bail conditions.[4]

   [4] High Risk Serious Offenders Act 2020 (WA) s 7(4).

7. If the court is satisfied that there is a risk that the respondent would commit a serious offence, the court must then consider whether the risk would be unacceptable in the absence of a restriction order. 

8. In The State of Western Australia v ZSJ, Justice Fiannaca remarked shortly after the HRSO Act came into operation that the HRSO Act operates largely as the Dangerous Sexual Offenders Act 2006 (WA) did, and whereas previously the question was framed in terms of whether the respondent was a 'serious danger to the community', the question now is whether he is a 'high risk serious offender', but the matters about which the court must be satisfied are essentially the same.[5]

   [5] The State of Western Australia v ZSJ [2020] WASC 330 [5].

9. In The State of Western Australia v ACJ, Fiannaca J referred to the established meaning of unacceptable risk, and then set out how the court should in accordance with authority approach the statutory task of determining whether the risk a respondent would commit a serious offence would be unacceptable in the absence of a restriction order:[6]

   [6]The State of Western Australia v ACJ [2021] WASC 219 [27] ‑ [30] (footnotes omitted).

   In Director of Public Prosecutions (WA) v Williams, Wheeler JA elucidated what, in her Honour's view, was meant by 'unacceptable risk' under the DSO Act. Her Honour's elucidation of the meaning of that phrase, which was subsequently applied in cases under the DSO Act, also applies to the concept of 'unacceptable risk' under the HRSO Act. Her Honour said:

   In my view, an "unacceptable risk" in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.  (emphasis added)

   The meaning of 'unacceptable risk' under the DSO Act was considered further in Director of Public Prosecutions (WA)v GTR, where Steytler P and Buss JA said that the word 'unacceptable' connotes a balancing exercise that will take into account the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim), the likelihood of the risk being realised, and the serious consequences for an offender if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order). Again, those principles apply equally to the concept of 'unacceptable risk' as it relates to a 'serious offence' under the HRSO Act.

   The need for the court to be satisfied 'to a high degree of probability' is a standard that is greater than a finding on the balance of probabilities but less than a finding of beyond reasonable doubt, but is otherwise incapable of further definition.  This does not necessarily mean that the risk must be at some high percentage of probability.  A risk may be less than 50%, yet still be unacceptable.  However, the court must identify what it is that constitutes the risk and makes it unacceptable and then consider whether or not those matters have been proved to a high degree of probability by acceptable and cogent evidence. 

   Section 48 of the HRSO Act, which corresponds to s 17 of the DSO Act, provides:

   (1)If the court hearing a restriction order application finds that the offender is a high risk serious offender, the court must –

   (a)make a continuing detention order in relation to the offender; or

   (b)except as provided in section 29, make a supervision order in relation to the offender.

   (2)In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.

10. If the court is satisfied to the requisite standard that there is an unacceptable risk the offender would commit a serious offence if not subject to a restriction order, the court must then turn to a consideration whether a detention order or a supervision order should be made. 

11. The powers conferred by the HRSO Act like the now repealed DSO Act are not to be exercised for the purpose of imposing additional punishment on the offender, but rather, for the ultimate purpose of protecting the community, which requires the court to choose the order that is the least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community.[7] The approach of the court under the DSO Act was guided by the principle that the HRSO Act does not require that there be no risk of reoffending, the issue is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community.[8] In The State of Western Australia v ACJ, Fiannaca J pointed out that this principle also applies to the exercise of the court's power to make a continuing detention order or a supervision order under the HRSO Act:[9]

    The court should make the order that is least invasive of the respondent's right to liberty, while at the same time ensuring an adequate degree of protection of the community, having regard to the paramount consideration stipulated in s 48(2). As was decided in respect of s 17(2) of the DSO Act, that requirement does not exclude other considerations. Further, the use of the word 'adequate' indicates that a qualitative assessment is required. It cannot simply be assumed that the most assured preventative measure is detention and, therefore, the protection of the community will always favour such an order.

    [7] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 297 [97] (Murray AJA).

    [8] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33] (Beech J).

    [9] The State of Western Australia v ACJ [2021] WASC 219 [32] (footnotes omitted).

12. Consequently, when considering whether to make either an indefinite detention order or a supervision order the court is to be guided by the principle of risk minimisation, of minimising the risk of reoffending by committing a serious offence to a level that ensures adequate protection of the community as opposed to elimination of any risk of committing a serious offence by the respondent.

13. The court should not make a supervision order unless satisfied on the balance of probabilities that the respondent will comply with the standard conditions set out in s 30 of the HRSO Act. The respondent has the onus of proving that he will substantially comply.[10] In respect of this issue, in The State of Western Australia v ACJ, Fiannaca J relevantly pointed out:[11]

    In essence, I must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with, and will enable the attainment of, the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious offence.

    As I identified in Hart, some matters that will be of relevance are (a) the respondent's attitude to the conditions of the supervision order (in particular whether he is likely to deliberately flout the conditions); (b) his capacity to comply with the conditions; (c) what measures there are in place to ensure he would substantially comply; and (d) the relative importance of any breach that might occur, in terms of the impact it would have on the practical effect of the supervision order in achieving the objects of the HRSO Act. In particular, where engagement in counselling is to be a condition of the supervision order, the respondent's willingness to engage in a meaningful way, rather than just attend the counselling session, will be a relevant consideration, given the significance of counselling as a means of monitoring risk as well as assisting in the reduction of risk. The same may be said of engagement in supervision with the Community Corrections Officer (CCO) allocated to the respondent.

    Even where the court is satisfied that the respondent will substantially comply with the standard conditions of a supervision order, the court must make a CDO if it is not satisfied (which includes if it is simply left in doubt) that conditional release under a supervision order will ensure an adequate degree of protection to the community. 

    [10] High Risk Serious Offenders Act 2020 (WA) s 29(2).

    [11] The State of Western Australia v ACJ [2021] WASC 219 [36] ‑ [38] (footnotes omitted).

The evidence at the hearing of the application for a restriction order

1. At the hearing of this application, I received in evidence Volume 1 of a book of materials, dated 6 April 2021,[12] and Volume 2 of a book of materials, dated 29 June 2021.[13]

   [12] Exhibit 2.

   [13] Exhibit 3.

2. Volume 1 of the book of materials contains a copy of the respondent's Western Australian criminal record, a chronology of offending prepared by the Office of the Director of Public Prosecutions for Western Australia, Department of Justice prison records, including incident reports, a history of Parole Board decisions, and medical records.

3. Volume 2 contains copies of historical psychological assessment reports prepared in 2016 and 2018, and reports prepared for the purpose of the restriction order hearing by:

   (a)consultant forensic psychologist, Ms Julie Hasson, dated 9 June 2021;

   (b)forensic consultant psychiatrist, Dr Gosia Wojnarowska, dated 11 June 2021;

   (c)senior forensic psychologist, Ms Catherine Korda, dated 25 June 2021; and

   (d)senior community corrections officer, Ms Trudy Hill, dated 15 June 2021.

4. At the hearing Dr Wojnarowska, Ms Hasson, Ms Korda and Ms Hill gave oral evidence and their reports were received into evidence. 

5. The respondent elected not to give or adduce any evidence.

The respondent's antecedents and criminal history

Family and social history

1. The respondent is an Indigenous man, who is 40 years old.  He is the youngest of two children of his parents, and he has an older half‑sister.  His parents separated when he was a baby.  He went to live with his maternal aunt and uncle when he was very young because his mother could no longer care for him due to her issues with alcohol.  At that point in time it appears he lost contact with his mother. 

2. The respondent reports that he had been sexually abused by a family member on two occasions, the first being when he was 5 years old, and then again when he was 7 years old.  Despite this, he had a happy childhood living in the country until he was in late primary school and his aunt and uncle separated.  He then went to live in Perth with his aunt.  He described his aunt as a loving person who provided well for the children in her care. 

3. Unfortunately, the respondent's aunt died when he was 15 years old, and he left school without completing year 9.  Prior to ceasing school, he was persistently truanting and engaged increasingly in cannabis use and soon began engaging in criminal behaviour such as stealing. 

4. The respondent reconnected with his mother after his aunt died.  He then lived with his mother and his extended family, and was surrounded by alcohol and drug abuse.

5. The respondent has had difficulties in forming and maintaining stable and long‑term intimate relationships.  His last intimate relationship was in the period before he commenced a 10‑year sentence of imprisonment from 12 September 2007. 

6. He was released on 11 September 2017, and returned to custody on 23 May 2018.  During that period of time he did not form any prosocial relationships.

7. The respondent's personal network of supports appears to be restricted to his mother who is now in her seventies and his sister.  His brother died of a heroin overdose.  Whilst in prison the respondent has maintained his contact with his mother, who is supportive of him.

8. The respondent has two children, aged 25 and 13 years old.  His youngest child is under the care of the Department of Communities, Child Protection and Family Support.

9. Ms Hill reports that the respondent has indicated his main priority and focus was his mother, and establishing contact with his son with whom he had been exchanging letters, and that the Department of Communities, Child Protection and Family Support are open to the respondent having contact with his son in the community, and it would explore this by first holding a meeting with the respondent to further discuss the potential to make such arrangements.

Criminal history

1. The respondent has a lengthy criminal history which commenced in 1993 when he was 12 years old.

2. The respondent's first conviction for a sexual offence was in August 2009 for offences that occurred in 2003.  The respondent was charged with four counts of sexual penetration without consent and two counts of aggravated burglary.  The offences occurred at the same house on two separate occasions: one on 9 March 2003 and the second on 3 April 2003.  The first of these two offences occurred the day after he was released from prison.

3. On 9 March 2003, the respondent entered the victim's house when she was asleep in bed with her 8‑year‑old daughter.  Her four other children were also in the house.  The victim awoke to find the respondent kneeling over her.  He touched her on her underwear and under her underwear inserting his finger into her vagina.  He then penetrated her vagina with his penis before leaving the house.

4. On 3 April 2003, the respondent returned to the victim's home while she was asleep in bed with her daughter.  Once again, the respondent entered her bedroom, penetrated her vagina with his fingers and then penetrated her vagina with his penis.

5. The respondent initially pleaded not guilty to the offences but changed his plea to a plea of guilty after the first day of trial and after the victim had given evidence‑in‑chief.  On 4 August 2009, the respondent was sentenced to 10 years' imprisonment, which was backdated to 12 September 2007.  While the respondent was made eligible for parole, he served his full 10‑year sentence and was released from custody on 11 September 2017.

1. The next offences committed by the respondent commenced approximately two months after his release from prison.  Between 16 December 2017 and 26 February 2018, the respondent was charged with a series of offences for masturbating in public or in a police lock‑up.  One of these offences occurred in front of a woman who was with her toddler and infant daughters.  On 4 May 2018, the respondent was sentenced to a term of 7 months' imprisonment for these offences, which was suspended for a period of 12 months.

2. Between 21 and 22 May 2018, the respondent breached his conditionally suspended imprisonment order imposed on 4 May 2018 by committing three separate offences for masturbating in public (in the presence of women, one of which was in the presence of a woman and her two young children), and one charge of unlawful and indecent assault, which also involved exposing his penis to a female victim, masturbating and telling her to come over here and make me come.  As the victim walked off quickly he followed her whilst masturbating and attempted to grab her but she ran off.  In October 2018, he was sentenced to a term of 14 months' imprisonment (backdated to 23 May 2018) for these offences committed on 21 and 22 May 2018 and the breaches of the conditional suspended imprisonment order imposed in May 2018. 

3. The next offences occurred between November 2019 and January 2020.  On 27 November 2019, the respondent was in the carpark of the Thornlie train station and masturbated in front of a female driver who was then in her vehicle.  He was arrested and placed on bail, which included a condition not to be within 50 m of the Thornlie train station.  On 1 January 2020, the respondent in breach of his bail conditions attended the Thornlie train station and repeatedly followed a female as she moved on and off a train.  He sat down next to the victim on the train, put his arm around her and asked her for a kiss.  He then forced his hands between her legs and squeezed her vaginal area on the outside of her clothes.  As the victim left the train, he followed her.  As he watched he sniffed his hand, which he had used to touch the victim's vaginal area.  On 16 January 2020, the respondent was arrested for these offences, and taken to the Cannington police station lock‑up.  The respondent was charged with breaching his bail and aggravated indecent assault.  While at the lock‑up, he began to masturbate while staring at a woman who was at the police station with her child.  The respondent was then charged with the offence of an obscene act in a police station.  The respondent was sentenced to 15 months' imprisonment for one count of aggravated indecent assault (12 months), one count of committing an incident act in public (3 months cumulative), and one count of an indecent act in a police station (3 month concurrent) on 1 May 2020, backdated to 16 January 2020.[14]

   [14] Exhibit 1.

4. In the past, the respondent has been convicted of numerous offences involving violence, including being convicted of common assault, assault occasioning bodily harm, assault public officer (on three occasions), indecent assault of a nurse, and assaulting women with whom he was in a relationship with on three separate occasions.  The assaults on his partners resulted in him being convicted of one count of assault occasioning bodily harm, and one count of unlawful wounding in 2002, one count of aggravated common assault in 2007, and one count of aggravated assault occasioning bodily harm in 2008.  The offences committed in 2007 and 2008 occurred when his then partner refused his sexual advances. 

Relevant medical conditions of the respondent

1. The respondent suffers from a major mental illness, schizophrenia.[15] He also has been diagnosed with antisocial personality disorder.[16]

   [15] Exhibit 3, 514, par 93.

   [16] Exhibit 3, 516, par 107.

2. The respondent has a history of drug induced psychosis.  He was initially diagnosed with schizophreniform disorder in the context of cannabis abuse.  He was diagnosed as suffering from psychosis in 2002, 2007, and 2008.[17]

   [17] Exhibit 3, 500 ‑ 501, par 17.

3. When the respondent is unwell, he presents with symptoms of paranoia, somatic delusions and auditory hallucinations of a derogatory nature.[18]

   [18] Exhibit 3, 501, par 18.

4. He receives a monthly depot injection for his schizophrenia.[19]

   [19] Exhibit 3, 501, par 19.

5. Dr Wojnarowska reports that his current antipsychotic medications include Aripiprazole 400 mg powder (4/52 injection), Fluoxetine 20 g – one capsule mane (morning), and Quetiapine 200 mg modified release tablets – two tablets nocte (night).[20]  She also reports that he is also prescribed numerous medications for his medical conditions, he is reported to have heart problems and sleep apnoea.  He is awaiting a sleep apnoea machine to assist with his breathing during the night.[21]

   [20] Exhibit 3, 527, par 41.

   [21] Exhibit 3, 527, par 42.

6. More recent information subsequently provided to the court after Dr Wojnarowska gave her evidence indicates that the respondent has been prescribed an additional antidepressant SSRI medication, Escitalopram 20 mg mane.[22]

The respondent's recent history of compliance with his antipsychotic medication and other relevant notations made in his medical notes

[22] Exhibit 8.

1. Volume 1 of the book of materials contains a copy of the medical records and notes made by psychiatrists and mental health nurses who have treated the respondent during the period of his last sentence from 17 January 2020 until 1 March 2021.  After Dr Wojnarowska gave oral evidence the applicant produced additional medical records and notes for the period from 5 March 2021 to 9 June 2021.[23]

   [23] Exhibit 7.

2. Collectively, these medical records and notes record that in the period from 17 January 2020 until 9 June 2021 that the respondent refused prescribed antipsychotic depot injections over two periods of time.  Initially, the respondent was compliant from the time he was taken into custody in January 2020 until 27 May 2020.  On that date he attended a clinical nurse and received a depot injection of Zuclopenthixol.[24]

   [24] Exhibit 2, 131.

3. On 24 June 2020, in a consultation with a mental health nurse, he told the nurse he wanted to come off the present depot or change to a newer one.[25] On 8 July 2020, he declined a depot injection and requested to see a psychiatrist to discuss current medication.[26] However, when he saw a psychiatrist, Dr Kevin Smith, on 24 July 2020 he told the doctor he was hearing voices and he attributed this to refusing his last depot injection and wanted to have the injection that day.[27] When he next saw a psychiatrist, on 24 August 2021, he told Dr Edward Petch that the voices had got louder and more intrusive and persistent and he requested a change in depot.[28] Dr Petch changed his monthly antipsychotic depot injection to Aripiprazole.[29]

   [25] Exhibit 2, 128. 

   [26] Exhibit 2, 127.

   [27] Exhibit 2, 126.

   [28] Exhibit 2, 122.

   [29] Exhibit 2, 122, 120.

4. The respondent was then compliant with the monthly depot injections of Aripiprazole until 21 January 2021.  On that date he did not attend his nursing appointment for the injection that was due.[30] He saw a psychiatrist, Dr Natalia Bilyk, on 19 February 2021 and told her he would not take his depot and would prefer quetiapine (nocte).  Dr Bilyk made a note in the medical records that she would see how he goes on this dose as it will exacerbate his weight issue.[31]

   [30] Exhibit 2, 91.

   [31] Exhibit 2, 81.

5. On 5 March 2021, the respondent saw Dr Bilyk again who noted that he had his Supreme Court hearing earlier this week to ascertain his high risk serious offenders status.  By that date, the respondent had been non‑compliant with his depot injections for two months.  Dr Bilyk noted that on this occasion his cognitive impairments were prominent, that he had a poor comprehension of judicial process, and a patchy memory.  She also noted he displayed paranoid projections but no bizarre delusions other than a belief that prisoners other than him being sexually assaulted at night.  She also noted he was keen for any assistance.  He told her that if he got accommodation, he could get out of prison, but he cannot live with his mother.  He asked about his medication stating he did not want them as it caused bloating, breast tissue and weight gain, and then caused him to ask for twice as much.  She also noted he was not taking fluoxetine for the reason of bloating, but he was more open to taking a SSRI when she explained it helped with anxiety and binge eating.  Dr Bilyk made adjustments to the respondent's medication and prescribed the additional medication, Escitalopram.  Dr Bilyk recommended that a new NDIS access request be made when new evidence became available.[32]

   [32] Exhibit 7, 19.

6. On 19 April 2021, the respondent made a request to recommence his depot injection because he was feeling dizzy all the time.  Later that day a mental health nurse administered his depot medication.[33] On 30 April 2021, he saw Dr Bilyk and told her that he is now taking his depot and is feeling better for it.[34] On 17 May 2021, the respondent saw a mental health nurse, received a depot injection and reported that since he recommenced his depot medication, the voices he hears are now quieter and less disturbing.[35] On 20 May 2021, he requested to speak with a mental health nurse.  Later that day he spoke to a mental health nurse and reported he had been feeling dizzy and unbalanced, and told the nurse he wanted to stop his depot as he believed that it had caused his symptoms.[36] On 8 June 2021, he made a request to see Dr Bilyk and reported he was hearing voices and feeling paranoid, and would like to change his depot. 

Substance abuse

[33] Exhibit 7, 11.

[34] Exhibit 7, 7.

[35] Exhibit 7, 6.

[36] Exhibit 7, 5.

1. The respondent has an entrenched history of alcohol and substance abuse in the community from a young age.  He told Ms Hasson that once he ceased attending school, he and his cousins used to spend time in Northbridge drinking and smoking cannabis on a daily basis.  By the age of 15, he had progressed to intravenous use of amphetamines.  He also told her that using drugs made him forget about his stresses and worries, and that methylamphetamine helped him lose weight and made exercising easier to keep his body in shape.  He attributed smoking cannabis to making him paranoid.[37]

   [37] Exhibit 3, 500, par 16.

2. The respondent has also reported that methylamphetamine causes him to engage in offending behaviour.[38]

   [38] Exhibit 7, 19.

3. The respondent has been tested for illicit substances in prison since his last period of imprisonment.  None have been detected.

The respondent's participation in rehabilitation programs

1. From 2 December 2013 to 13 January 2014 the respondent participated in a cognitive skills program, Think First.  He attended all 30 scheduled sessions and was punctual to classes.  He was often quiet during the program, providing limited input to group discussions and exercises.  It was noted he had some issues with literacy which affected his comprehension of the program concepts.  He, however, demonstrated some understanding of the session contents, and at times required assistance from facilitators to understand exercises.  He completed all given exercises in an acceptable standard and participated in a limited manner in the role‑play sessions.[39]

   [39] Exhibit 2, 307 ‑ 308.

2. The Think First program report records that the respondent did not make notable gains in his post‑course cognitive behavioural rating scale, but he had some motivation to change.  In the final review session, he stated that his future goals were to gain employment when released from prison, to seek help for his drug use issues, stay away from unwanted influences and to support his family.  The authors of the report also recorded that:

   (a)the respondent was avoidant of reporting on his previous offending behaviours and was noted to have taken a minimal level of responsibility for his actions; and

   (b)he minimised his control over his use of alcohol stating that negative peer pressure lead him into excessive drinking.[40]

   [40] Exhibit 2, 309 ‑ 310.

3. On 11 February 2014, the respondent commenced an Intensive Sex Offender Treatment Program and attended 21/107 sessions between that date and 8 April 2014.  At the time he commenced the program there was no evidence he was suffering psychotic symptoms and he was included in the program on the basis his mental health was stable at the time.  However, issues around his mental health began to emerge in the third session of the program, with prison staff raising concerns about a letter written by the respondent which suggested some paranoia around the group process.  As a result of concern by prison staff, referrals were made to the mental health nurse and prison counselling services by the facilitators and during this period the respondent remained engaged in group treatment.  It emerged that he had been non‑compliant with his antipsychotic medication and was charged with passing contraband (cannabis) and threatening to assault staff.  As a result, he was relocated and unable to attend treatment because of the prison regime.  As a result of his removal from the program he made little if any treatment gains.[41]

   [41] Exhibit 2, 312 ‑ 313.

4. The respondent was re‑enrolled in the Intensive Sex Offender Treatment Program in 2015.  He commenced the program on 9 February 2015 and completed it on 26 October 2015.  In a report by the facilitators of the program they suggested that the respondent's sexual offending is an extension of his violent behaviour, his sense of entitlement generally but also sexually.  They noted that he appears to hold antisocial views and distorts his truth to gain compliance with what he wants.  They found he made no gains relating to his criminogenic treatment targets, but it was acknowledged that he had completed the program and maintained compliance with his medication regime and demonstrated an ability to self‑regulate during times of stress.  They formed the opinion that without considerable support in the community, the respondent would continue to offend.  They also formed the opinion that he was unsuitable to participate in a Pathways Program to address his substance abuse due to his cognitive deficits he had demonstrated in understanding and internalising content when participating in the Intensive Sex Offender Treatment Program.  The facilitators recommended that he undergo a specialist assessment with the department's specialist psychological service including assessment for a referral to the department's intellectual disability service.  [42]

Assessments of the respondent's intellectual ability carried out in 2016 and 2018

[42] Exhibit 2, 324.

1. In March 2016, the respondent was referred to a clinical and forensic psychologist, Jane Sampson, to identify outstanding treatment needs and conduct cognitive testing, with a referral to be initiated to the Disability Services Commission if appropriate.  The assessment took place after it was requested by the facilitators of the Intensive Sex Offender Treatment Program in 2015.  

2. Ms Sampson interviewed the respondent on 18 April 2016 and conducted psychometric testing.[43]

   [43] Exhibit 2, 464.

3. In her report, Ms Sampson described the results of her psychometric testing.  She administered the Wechsler Abbreviated Scale of Intelligence – 2nd Edition (WASI‑11), and noted that the test was developed to meet the demands for a short and reliable measure of intelligence in clinical settings, but that caution had been utilised in interpretation of the respondent because it is standardised on Western populations.[44]

   [44] Exhibit 2, 466.

4. The result of the respondent's overall performance on the (WASI‑11) placed him in the 'extremely low' range of intellectual capacity where 99% of others his age would be expected to perform higher.  His Verbal Comprehension score placed him in the extremely low range of intellectual capacity where 99.7% of others his age would be expected to perform higher in understanding verbal information, thinking with words, and expressing thoughts in words.  His Perceptual Reasoning scores were somewhat better as he scored in the 'borderline' range of intellectual capacity where 96% of others his age would be expected to perform higher in solving non‑verbal problems, sometimes using hand‑eye co-ordination and working quickly and efficiently with visual information.[45]

   [45] Exhibit 2, 466.

5. Ms Sampson formed the opinion that it is likely that these limitations have been longstanding as the respondent appears to have had learning difficulties at school.  She also noted that his substance use including sniffing of solvents is likely to have further compromised his verbal comprehension and left him ill‑equipped to communicate and address his problems.  She found that these results provide some understanding as to why the respondent had failed to benefit from any of the programs he had attended.[46]

   [46] Exhibit 2, 467.

6. Ms Sampson recommended that the respondent be referred to the Disability Services Commission for further assessment in relation to his eligibility for their services.[47]

   [47] Exhibit 2, 468.

7. In July 2018, a provisional psychologist, Ms Angie Marriner, from the Department of Communities and a senior psychologist, Dr Brenton Maxwell, assessed the respondent for his eligibility for diagnosis of intellectual disability.  Ms Marriner and Dr Maxwell found:

   (a)the respondent had overall intellectual and adaptive functioning in the extremely low range; but

   (b)the onset of this level of functioning could not be established within the developmental period so that a diagnosis of intellectual disability could not be made at that time. 

   The result of which was that the respondent was not eligible for services from the Department of Communities for a person with an intellectual disability. 

8. Ms Marriner and Dr Maxwell noted in their report that it was their clinical impression that the respondent's presentation was not consistent with an intellectual disability.  They noted that he has a long history of polysubstance drug use, and that he had reported an incident where he was hit in the back of the head and lost consciousness, resulting in him being taken to hospital.  Consequently, they found it was not possible to establish whether the respondent's current level of functioning was reflective of his functioning during the developmental period, or whether it represented a decline due to those factors.[48]

   [48] Exhibit 3, 484.

9. Ms Marriner and Dr Maxwell, however, indicated in the report that should more information become available regarding the respondent's level of functioning in the developmental period, his eligibility for services may be reconsidered.  They also recommended that as the respondent has a diagnosis of schizophrenia which is considered to be a permanent psychiatric impairment even when medicated, he may qualify for a psychosocial disability under the National Disability Insurance Scheme (NDIS) if he is able to demonstrate substantial functional impact of this condition.[49]

   [49] Exhibit 3, 484.

10. An application was subsequently made to the National Disability Insurance Agency (NDIA) for NDIS funding for the respondent, which application was refused in 2019.  However, the NDIA has indicated that if additional information becomes available that a further referral could be made for NDIS support.

Evidence of Dr Wojnarowska

1. In her report dated 11 June 2021, Dr Wojnarowska notes that the respondent has been diagnosed with schizophrenia with negative syndrome (avolition and amotivation) as well as cognitive impairment, most likely secondary to chronic schizophrenia and chronic substance use.  He also fulfils the criteria for antisocial personality disorder and polysubstance use disorder (in remission in custody).[50]

   [50] Exhibit 3, 530, par 59 ‑ 60.

2. Dr Wojnarowska undertook an assessment of the respondent's risk of future sexual violence utilising the STATIC‑99R, PCL‑R, 3‑Predictor Model, the RSVP structured professional guidelines and the HCR‑20 v3 instrument. 

1. Her analysis of the results of each of those tests is as follows:

   (1)The respondent's score on the STATIC‑99R places him in the Level IVb 'well above average risk' category.  In routine samples of offenders with the same score, the 5‑year recidivism rate is between 36% to 45%. 

   (2)The respondent's score on the PCL‑R was in the low range.  Therefore, his score does not meet the threshold for psychopathy.  However, on the antisocial behaviour facet his score was elevated due to various factors.  Persons in this range tend to lead persistent antisocial lifestyles with frequent and serious violations of social and legal expectations.  The elevation of this facet is consistent with a diagnosis of antisocial personality disorder.

   (3)The 3‑Predictor Model is an instrument to assess the risk of indigenous sexual recidivism which (as the name suggests) considers three significant factors distinguishing indigenous Australian sexual recidivists from non‑recidivists being: (a) maladaptive coping strategies, (b) unfeasible release plans; and (c) unrealistic long‑term goals.

   (4)Although the respondent has not used illicit substances whilst in prison, he continues to display limited insight, he has a tendency to project blame onto others and has difficulty with containing negative emotions, at times resorting to interpersonal violence.

   (5)He has no plans after release apart from wanting to reconnect with his family and he has no long‑term goals. 

   (6)Dr Wojnarowska identified the presence in the respondent of three of the significant risk factors under the 3‑Predictor Model.

   (7)Applying the RSVP structured clinical guide, Dr Wojnarowska identified the presence in the respondent, or partial presence, of four static risk factors – chronicity of violence, diversity of sexual violence, escalation of sexual violence and physical coercion in sexual violence.

   (8)Dr Wojnarowska also identified a number of dynamic risk factors present in the respondent including extreme minimisation or denial of sexual violence, problems with self‑awareness, problems with stress or coping, problems resulting from child abuse, major mental illness (schizophrenia), problems with intimate and non‑intimate relationships, problems with employment, non‑sexual criminal activity, problems with planning, problems with supervision and problems with treatment.

   (9)Dr Wojnarowska applied the HCR‑20 v3 to assess the respondent's risk of non‑sexual violence.  These factors are:

   (a)History of violent ideation (past and present) – There is not any evidence of preoccupation with violence in the respondent's offending.  His offences are not predatory in nature and appear to be more related to his impulsivity, unmet sexual needs and substance use.

   (b)Clinical factors: current problems – Dr Wojnarowska identified the presence in the respondent, problems with insight/self‑awareness, instability, treatment or supervision response, living situation, treatment or supervision response and stress or coping.  She could not identify any protective factors.

2. Dr Wojnarowska is of the opinion that the respondent's risk of committing offences is well above the average range of sexual reoffending according to STATIC‑99R.  He also has a history of frequent nonsexual offending which is of a less serious nature, except for assaults on his partners.

3. Based on the respondent's clinical presentation, his history and the outcomes of the risk assessment tools utilised, Dr Wojnarowska formed the opinion that the respondent is at high risk of engaging in sexual and non‑sexual violence if not subject to an order under the HRSO Act.

4. Dr Wojnarowska is of the opinion that there is no causal relationship between the respondent's offending and his schizophrenia.  However, she is of the opinion that there is a casual relationship between his offending and his schizophrenia.  When giving oral evidence she explained what she meant by the term 'casual relationship'.  She said that a person who has a major mental illness is immediately disadvantaged in terms of their ability to earn an income, be employed, to have connections with society or to have stable accommodation, which factors result in stress and leads to polysubstance abuse.[51]

   [51] ts 70 ‑ 71.

5. Dr Wojnarowska is of the opinion that if the respondent is not subject to a restriction order, his offending is likely to be imminent as he has previously offended within a short period of time after being released from custody.  She is also of the opinion that as evidenced by his non-contact sexual offending, his frequency of offending will increase drastically if he is not apprehended immediately.

6. Dr Wojnarowska is of the opinion that unless the respondent receives sufficient support and appropriate management in the community he is at risk of very quickly resorting to the use of amphetamines or methylamphetamine, which is likely to lead to an immediate increase in his libido, disinhibition, an immediate need for sexual gratification. Dr Wojnarowska stated in her report that his most likely scenario of offending would involve him wandering aimlessly, not engaging in any activities or receiving formal supervision and returning to substance abuse which would lead to his engaging in criminal activity such as burglaries. However, when she gave oral evidence it became clear that she did not regard this scenario as being the most likely scenario. It is her view that if he resorts to the use of amphetamines or methylamphetamine the most likely resulting scenario is that he is likely to commit indecent acts in public such as masturbation or touching a woman and grabbing her on her vagina area.[52] When giving oral evidence she agreed that this scenario was the most likely scenario.[53]

   [52] ts 71 ‑ 73.

   [53] ts 72, 79.

7. She is also of the opinion that given his historically high sexual drive and limited sexual outlets, he is also likely to commit a sexual offence, involving sexual penetration and physical assault against a female occupant of a home he has broken into, if a woman is alone in the house at the time of the burglary. Dr Wojnarowska also said that the respondent is also at risk of offending against an intimate partner in the context of denying him sex. If so, Dr Wojnarowska is of the opinion his violence could escalate to severe physical assault on the victim, which could result in severe psychological and physical harm to the victim and/or witnesses with a high chance of escalation to serious or life‑threatening violence. When cross‑examined, Dr Wojnarowska conceded that the risk of these scenarios occurring was low. She agreed the respondent has not committed a serious sexual offence of this kind since 2003, and that his most recent offending has largely been offences involving indecent behaviour, which offences are not serious offences under the HRSO Act. Dr Wojnarowska, however, did point out that one of his recent offences in January 2018 occurred on the train, which offence was an offence of aggravated indecent assault, (which is a serious offence under the HRSO Act) and this offence could be characterised as an escalation in the seriousness of his more recent offending (in 2017 and 2018), but not an escalation of his entire history of offending if you took into account the earlier serious sex offences he committed in 2003.[54]

   [54] ts 72, 73, 78.

8. Dr Wojnarowska is not of the opinion that the respondent is likely to commit a sexual offence against a child, only that children could be incidental victims of his offending if they were to witness him committing indecent acts such as masturbation in public.

9. Dr Wojnarowska expressed an opinion in her report that the respondent appears to have no insight into his cycle of offending and has demonstrated negative and hostile attitudes towards women and authority and has a history of breaching orders in the community.  However, when she gave oral evidence she conceded that he has some insight and that he knows that, no (from a woman for sex) means no (sex), and that although he vocalises his illicit drug use is an external blame factor he does demonstrate an appreciation of the relationship between his substance abuse and how that affects his offending.[55]

   [55] ts 62 ‑ 63.

10. To address why he made no gains from group programs in the past, she is of the opinion that he should undergo neuropsychological testing to ascertain his level of cognitive functioning before any recommendations regarding further programmatic treatments are made and that he should commence individual psychological counselling irrespective of whether a continuing detention order or a supervision order is made.  She is also of the opinion that the respondent should be tested for fetal alcohol syndrome disorder (FASD).  The Community Offender Monitoring Unit have made arrangements for the respondent to undergo neuropsychological testing, and an appointment has been made for this purpose in September 2021.

11. Dr Wojnarowska recommends that in order to mitigate his risk to the community, he requires intensive psychological treatment to address his outstanding needs.[56]

    [56] Exhibit 3, 538, par 123.

12. When Dr Wojnarowska gave oral evidence she made it clear that she is of the opinion that the respondent's substance abuse could be managed in the community if he were released on a supervision order, but that his risk could not be adequately managed in the community until his treatment needs were met by programmatic and individual treatment programs to address his criminogenic behaviour.[57]  

    [57] ts 61.

13. Dr Wojnarowska is of the opinion that the respondent requires individual intensive psychological treatment either weekly or at least fortnightly.  She concedes this could be provided either in prison or in the community.

14. Dr Wojnarowska is of the opinion that the respondent should not be released from custody without any form of support, which support was absent when he was released from custody in 2017.  This is because if he receives appropriate support his high risk factors can be monitored, and action taken by those who support him.  Dr Wojnarowska says that if released he should be referred to the State Forensic Community Mental Health Service, and co‑managed by the State Aboriginal Mental Health Service.  When giving oral evidence she said that if he is accepted into their service the State Forensic Community Mental Health Service would allocate him a mental health nurse, who would regularly visit him at home, including on a daily basis if required, and he would also be under the care of a psychiatrist. 

15. Dr Wojnarowska is concerned with the respondent's compliance with his depot medication for his schizophrenia.  She noted his present medical records indicate that he had refused depot injections on more than one occasion in prison.  She did, however, agree that when he is not appropriately medicated for his schizophrenia the voices return, and that prison medical records indicate when that has occurred he has sought to engage with the prison mental health services to restart his depot medication.  She also agreed that the medical records record that one of the reasons that he has refused the depot medication is because he has gained 20 to 30 kg of weight and he did not like the way that affected him physically.  She also said that that was a reason why his treating psychiatrist changed the form of the depot medication.[58]

    [58] ts 69 ‑ 70.

16. Dr Wojnarowska is also of the opinion that the most appropriate accommodation for the respondent if released would be to reside in a psychiatric hostel, who would ensure that he is compliant with his medication and identify any early signs of relapse or other concerns, which issues would be communicated to the State Forensic Community Mental Health Service treating team.  Dr Wojnarowska, however, conceded that placement at such facilities is difficult and that in the past only one high risk offender has been placed at a psychiatric hostel.  Despite the difficulties in the placement of a high risk offender in such hostels, Dr Wojnarowska is of the opinion that this accommodation option is worthy of consideration.[59]

    [59] ts 65 ‑ 66.

17. When giving evidence, Dr Wojnarowska said that she did not consider the home of the respondent's mother to be a viable accommodation option for the respondent, because it had been reported to her that his mother was not aware of his history of sexual offending and that it could not be ascertained whether there were a number of persons residing at his mother's home, or whether persons congregate at her place of residence, and engage in drinking alcohol and the use of drugs.[60]

    [60] ts 67.

18. Given his high levels of sexual drive and preoccupation, Dr Wojnarowska recommends that anti‑libidinal treatment should be considered by commencing the respondent on a trial of SSRI's as a libido reducing agent.[61] She explained that he first needs to be referred to a clinic run by Dr Wynn Owen, to be assessed whether he is suitable for such treatment, and that if such treatment does commence it would take 6 to 8 weeks to take effect.[62] She reported that the respondent told her at the time she interviewed him that his sex drive was non‑existent.  Dr Wojnarowska did not accept that to be the case, however, she agreed that his current medications do have an effect to reduce his sex drive.[63]

    [61] Exhibit 3; 538; par 125.

    [62] ts 77, 81.

    [63] ts 76 ‑ 77.

19. Dr Wojnarowska is also of the opinion that if the respondent is released on a supervision order, the order should include a condition restricting him from frequenting parks where he is likely to encounter children who could become unintentional victims of non‑contact sexual offending by him.

Evidence of Ms Julie Hasson

1. Ms Hasson also undertook an assessment of the respondent's risk of serious reoffending utilising the STATIC‑99R, PCL‑R and the RSVP structured professional approach to integrate all of the information from the risk tools to arrive at a clinical decision. Unlike Dr Wojnarowska, Ms Hasson did not utilise the 3‑Predictor Model or HCR‑20 v3. Ms Hasson did not utilise the HCR‑20 v3 because the respondent does not have a history of offences of violence that are defined as serious offences under the HRSO Act. She did not use the 3-Predictor Model because those factors are incorporated into the RSVP. [64]

   [64] ts 83.

2. Ms Hasson's assessment of the respondent's risk of serious offending was not substantially different to the assessment made by Dr Wojnarowska.  However, there were some differences in her approach.

3. Ms Hasson assessed the respondent's score to be 8 on the STATIC‑99R which was the same as Dr Wojnarowska's assessment. 

4. Ms Hasson, like Dr Wojnarowska, also found that the respondent does not fit the construct of psychopathy (cut off score is 30). 

5. Applying the RSVP structured professional guidelines, Ms Hasson identified the presence of 4 static risk factors in the respondent - chronicity of sexual violence, diversity of sexual violence, escalation of sexual violence and psychological coercion in sexual violence which manifested in his sexual offending.  Ms Hasson's opinion differed from Dr Wojnarowska in that Ms Hasson identified in the respondent a diversity of sexual violence was present whereas Dr Wojnarowska found it was partially present. 

6. When asked to explain why she formed this opinion she said that: (a) she considered the manual's definition of what is considered to be diverse; (b) the respondent has a history of both contact and non‑contact offences, and he also has offences that have involved violence and non‑violent offences; and (c) he has offended against partners where there has been an element of sexual motivation.  Having regard to these factors she said that victim selection in these types of offences are different, the nature and type of offences that he has committed are different, and he has committed some offences where children have been present when his offending has occurred.

7. Unlike Dr Wojnarowska she also found physical coercion in sexual violence is possibly present, and this was because the manual defines psychological coercion to include a breach of trust, which in the case of the respondent could be said to involve an intimate partner and that coercion to obtain sex represents a breach of trust within that relationship.[65]

   [65] ts 88 ‑ 89.

8. Ms Hasson also identified a number of dynamic risk factors present in the respondent including extreme minimisation or denial of sexual violence (partially present), problems with self‑awareness, problems with stress or coping, problems resulting from child abuse, sexual deviance, major mental illness (schizophrenia), problems with substance use, violent ideation, problems with intimate and non‑intimate relationships, problems with employment, non‑sexual criminal activity, problems with planning, problems with treatment and problems with supervision.  The only difference in her assessment of these factors to the assessment made by Dr Wojnarowska were she found that:

   (a)sexual deviance was present whereas Dr Wojnarowska found it was not.  Ms Hasson said that sexual deviance can be considered present if there are repeated behaviours of a sexual deviant nature.  It is her opinion that exposing oneself and masturbating in public is a sexual deviant act;[66] and

   (b)violent ideation was present whereas Dr Wojnarowska found it was not.  Ms Hasson explained that this was because she interviewed the respondent on a second occasion two weeks after he had seen Dr Wojnarowska and the day after the respondent had been involved in the incident in his unit where he had behaved in a threatening and aggressive manner.  Ms Hasson formed the opinion that violent ideation was present because of this incident.[67]

   [66] ts 89.

   [67] ts 90.

9. Taking into account the respondent's STATIC‑99R score and the risk factors identified under the RSVP, Ms Hasson formed the opinion the respondent presents as a high risk of sexually reoffending without the benefit of intervention, supervision, support and monitoring. 

10. Ms Hasson said in her report that the respondent was likely to engage in sexual offending in the following circumstances:

    (1)The most likely scenario for future sexual offending would involve the respondent returning to the community and relapsing into drug use and ceasing his medication.  He may experience heightened sexual drive and sexual preoccupation.  He has a history of poor impulse control and inability to delay gratification and he may act out sexually by exposing himself and masturbating in public similar to his index offending.  Alternatively, he may impulsively grab and touch women in public, in circumstances which constitute a serious offence, namely an aggravated indecent assault.[68]

    (2)The respondent may break into a house late at night possibly with the intention of stealing items to support his drug use and lifestyle.  He may opportunistically sexually offend against a woman especially if no adult male is present.  This offence is likely to involve penile penetration and some violence may be used to gain compliance.  However, in light of the fact that the respondent has not committed such an offence of this kind since 2003 Ms Hasson does not assess this scenario as imminent and agrees it is simply a possibility.[69]

    (3)Sexual violence may occur in the context of an intimate relationship with a partner.  His high libido, attitudes of entitlement to sexual contact, attachment and intimacy difficulties are likely to be some of the issues that precede such an attack.  Some violence may be involved if his partner resists his sexual overtures.  Ms Hasson also does not assess this scenario as imminent, but clarified her opinion by saying that if he was to meet someone and engage in an intimate relationship without first addressing his unmet treatment needs then this scenario could become imminent.[70]

    [68] ts 93.

    [69] ts 115.

    [70] ts 117 ‑ 118.

1. In her oral evidence Ms Hasson said that the respondent is likely to offend quite quickly after being released from prison and that the factors that will contribute to that are substance abuse and not being compliant with his mental health regime.  She also said there seems to be a very strong link between his use of methylamphetamine and his libido because he has commented that he has not been able to manage his sexual drive in the past so that if he relapsed back into using methylamphetamine in the community quite quickly it might be that he is not able to control any sort of sexual urges.[71] She agrees with Dr Wojnarowska's opinion that the respondent has reoffended very quickly after release in the past because he has not had any protective strategies or relapse prevention plan.[72]

   [71] ts 95.

   [72] ts 95.

2. She is also of the opinion that because he has very few protective factors he requires considerable professional and personal support.

3. In Ms Hasson's view the various risk assessment instruments used by her all indicate that the respondent presents as a high risk of serious reoffending if not subject to a restriction order.  He presents with complex treatment needs across several domains including mental health, cognitive impairment, substance abuse, violent and sexual offending.

4. It is Ms Hasson's opinion the respondent has significant outstanding treatment needs around sexual offending, intimate partner and general violence.  He has limited insight into his mental health, substance abuse and offending behaviour.  He requires significant assistance to develop appropriate strategies and skills to moderate or mitigate risk.

5. Whether the court makes a continuing detention order or a supervision order, Ms Hasson recommends that the respondent engage with a psychologist immediately to establish rapport, determine treatment readiness and to address or identify any treatment resistance or therapy interfering behaviours.  A focus on preparing for release would be beneficial. 

6. In the initial stages of individual counselling, it will be important to identify the respondent's main risk factors and provide him with concrete examples of how to manage these.  Once the obvious risk factors have been identified and clarified with him, the focus on his risk can be expanded to include less obvious risk factors such as intimacy needs, establishing relationships and communication etc.  Specialised counselling should focus on developing skills to manage and regulate his moods, emotions, and behaviours that over time he develops an internal locus of control for his feelings and actions.

7. Ms Hasson said that although the respondent did manage to complete the Intensive Sex Offender Treatment Program and gain some very basic knowledge it was not enough for him to make changes in his behaviour because the program focused on 12 participants.  Because of his cognitive impairments and his mental health issues he needs one on one counselling with a consistent counsellor with a lot of repetition, reducing concepts to simple propositions, and always checking that he understands propositions and backtracking to make sure he retains information, knowledge, and new insights.[73] Ms Hasson also said that although he has some really basic very rudimentary understanding of what consent is, what he needs is reinforcement in a very prescriptive way what is consent and what he needs to do to get it.  He first needs education about using drugs, and then to work with them on intimacy issues, resolving conflict and improving communication.[74]

   [73] ts 121 ‑ 122.

   [74] ts 119.

8. Ms Hasson is, however, of the opinion that the respondent could be adequately managed in the community on a supervision order as proposed by the Community Offender Monitoring Unit.[75]

   [75] ts 99.

9. Ms Hasson is of the opinion that although he can receive this counselling in the community, he needs to first establish a relationship with a counsellor in prison before his release. 

10. In the longer term, the focus of his engagement on an order should be to assist him with reintegration back into the community and help him to develop a positive relationship with those providing intervention and monitoring to enhance the likelihood of compliance with conditions.

11. Ms Hasson acknowledged that the respondent was very interested in engaging in treatment programs and that he had tried whilst he was in prison to take steps to engage in voluntary treatment.[76]

    [76] ts 120 ‑ 121.

12. In her report Ms Hasson said that it is her view that if the respondent is released on a supervision order the order should be at least five years in length.  Ms Hasson gave oral evidence after Dr Wojnarowska had given her evidence.  When Dr Wojnarowska gave evidence she said it was her opinion that if the respondent is released on a supervision order the order should be for a duration of 10 years.  In her oral evidence Ms Hasson said that the respondent in the long‑term will require a lot of support for 10 years if not a lifetime.  She then said in her opinion that if a supervision order is made it should be for a period of at least five years so that the respondent has the best chance of developing new skills and being monitored and supported in the community but that she would agree that a period of 10 years would be appropriate.[77]

    [77] ts 120.

13. Ms Hasson was unable to say whether she would assess the home of the respondent's mother to be suitable accommodation because she did not know enough about that home environment.  She said that to make a proper assessment she would want to know who else lives there and whether there is any drug or alcohol issues associated with persons present in the house.  She is of the opinion that he does not have the ability to live independently without support.[78]

    [78] ts 109.

14. Ms Hasson is of the opinion that suitable support could be given to the respondent by the State Forensic Community Mental Health Service, if arrangements could be made for that service to oversee the respondent's mental health by home visits by a mental health nurse to assess how he was coping and functioning in the home environment and assist him with his self‑care.  She was of this view because the respondent had made it very clear to her that he was very willing to have any professional support.[79]

    [79] ts 107.

15. Ms Hasson also thought it would be ideal if Uniting WA could be involved with assisting the respondent to reintegrate into the community from the commencement of his release, but noted that they could not do so until they had engaged with him for a period of six months prior to his release.[80]

Evidence of Ms Korda

[80] ts 111.

1. Although Ms Korda is a senior forensic psychologist with the Forensic Psychological Service/Specialist Psychological Service she did not interview the respondent.  Instead she reviewed all the materials before the court.  Her report summarises the respondent's offending behaviour, offence specific assessment and intervention history, the assessments and reports prepared by Dr Wojnarowska and Ms Hasson, and the respondent's identified treatment needs, intervention and risk management options. 

2. Ms Korda notes in her report that an assessment of the respondent's eligibility for services offered by the Department of Communities was made in 2018.  While at that time he was identified to have intellectual functioning and adaptive behaviour in the extremely low range, a diagnosis of intellectual disability was unable to be made as it was not possible to establish the onset of these difficulties.  As such, he was deemed ineligible for the services from this Department.

3. Ms Korda also notes in her report that due to his diagnosis of schizophrenia it was thought that the respondent may qualify for a psychosocial disability under the NDIS, but a referral to the NDIA in 2019 was unsuccessful due to a perceived lack of evidence of his substantially reduced functional capacity.

4. Ms Korda is also of the opinion that based upon historical reports and the current reports of Dr Wojnarowska and Ms Hasson the respondent presents with complex and extensive treatment needs associated with his history of sexual and violent offending, which remain largely unaddressed.  She also is of the opinion that the respondent's capacity to complete, and ability to gain from, traditional group‑based treatment is questionable due to his cognitive limitations and instability in his mental health.

5. Ms Korda also recognises that the respondent's responsivity issues to group treatment are likely to have contributed to his limited gains rather than a lack of motivation or willingness to address his offending behaviour.  In her report she states that the Department of Justice does offer the Sexual Offending Intellectually Disabilities Program in a custodial setting to which he is better suited, but this program will not be offered in 2021.  When giving oral evidence she explained that this was because there are currently insufficient numbers of persons in custody who are eligible to participate in the program.[81]

   [81] ts 137.

6. Ms Korda is of the opinion that if the respondent is released to the community, he will require significant structure, intervention and supervision to avoid a return to problematic behaviour through an approach which is supported and maximises his motivation to live a prosocial lifestyle as well as monitors his compliance and willingness to engage at a meaningful level.

7. Given the issues identified with the respondent's apparent inability to gain from group-based treatments, Ms Korda, like Dr Wojnarowska and Ms Hasson, recommends that the respondent engage in individual psychological counselling as a more appropriate treatment option as such individual treatment will allow a more individualised intervention that is specific to the treatment needs identified and responsive to his cognitive deficits and mental illness. 

8. Ms Korda concedes that unless a restriction order is made by the court individual counselling would not be made available to the respondent whilst he is in custody.  However, it is her evidence that if he is declared a high risk offender, a psychologist will be appointed as soon as practicable to commence individual treatment and that if he is released on a supervision order that the psychologist will continue his post-release treatment.[82] This counselling will be provided by the Forensic Psychological Service or the Specialist Psychological Service.[83]

   [82] ts 136, 140.

   [83] ts 131.

9. Ms Korda also said that if Uniting WA is engaged to assist the respondent post-release they would be able to assist the respondent to make arrangements for him to attend appointments with his psychologist.[84]

   [84] ts 138 ‑ 139.

10. If a restriction order is not made, then a post-sentence supervision order made by the Parole Board will take effect.  Ms Korda said that if this occurs any psychological intervention would be provided to the respondent through the Adult Community Psychological Service.  This service is also a Department of Justice service but is separate to the Forensic Psychological Service and the Specialist Psychological Service.[85]

    [85] ts 134.

11. Ms Korda also remarked like Ms Hasson that the respondent's lack of treatment gain is not due to his lack of motivation or willingness to address his offending.  She also conceded that during this last period of his sentence of imprisonment he was not offered any group or individual treatment because of the shortness of the period of his sentence.[86]

Evidence of Ms Hill

[86] ts 136.

1. Ms Hill is the respondent's senior community corrections officer.  Her report summarises his offending history, prison behaviour, programmatic intervention, previous response to supervision, proposed community supervision plan, accommodation, community support, employment, victim issues, reporting obligations under the Community Protection (Offender Reporting) Act 2004 (WA), his behaviours to be managed and strategies to manage offending behaviours.

2. In her report Ms Hill first dealt with the respondent's history of behaviour whilst in custody and his compliance with community‑based orders.

3. In her report Ms Hill records that the respondent has been involved in two incidents since he became an inmate at Acacia Prison since 25 November 2020, and a minor incident.  However, none of these incidents resulted in him being charged with any prison offence.

4. He has been subjected to urinalysis on one occasion in May 2021 which returned a negative result to all illicit substances. 

5. Ms Hill records in her report that between 1999 and 2018 the respondent has been subject to six periods of community supervision community‑based orders, parole, monitored bail, pre-sentence order and a conditional suspended imprisonment order with his overall compliance being less than satisfactory.  Of the six periods, all but two have been cancelled due to his reoffending or non‑compliance.

6. During his most recent period of community supervision (being a period of conditional suspended imprisonment), imposed on 4 May 2018, the respondent reoffended on 21 and 22 May 2018 (being within three weeks of the conditional suspended imprisonment order being imposed).  Additionally, after urinalysis on 10 May 2018 (being less than a week after his release) he tested positive to methylamphetamine.

7. Ms Hill undertook some enquiries about accommodation if the respondent was to be released on a supervision order.  The only accommodation option that Ms Hill made any enquiries about was the residence of the respondent's mother.  This was because the respondent informed Ms Hill that he proposes to reside with his mother in her Department of Communities home to assist her with looking after the property as it is difficult for his mother to maintain the property given her age and frailty. 

8. When Ms Hill gave oral evidence she said that the respondent's mother's accommodation had been assessed for a review by the Parole Board.  She produced a report of the assessment prepared by an officer who visited the respondent's mother's residence on 12 December 2018.[87] The author of the report commented:

   Given no insight to Mr Quartermaine's serious offending and it appears limited knowledge regarding his mental health and illicit substance issues, the home environment is not positive.  Given his ongoing serious offending and long stints in prison Mr Quartermaine will need a supportive environment where his behaviour will be monitored and any concerns raised.  Ms Quartermaine did not appear to have the capacity to identify concerns as they arise.  She further did not outline any rules and while she commented she never has any trouble with him at the home, she informed 'he comes and goes as he wants'. 

   The accommodation is considered  Unsuitable

   Mr Quartermaine requires a supportive and protective environment for Parole given his complex needs and history of offending.  It is apparent while his mother wishes to provide him with accommodation the address is unsuitable given the sponsors lack of insight regarding his offending and treatment needs.  It is unlikely his mother will put in place stringent rules or monitor his behaviour given her lack of knowledge of her son's criminogenic behaviours.  As such this does place herself, visitors to the home and other members of the community at risk.  Further she has not had any in person contact with him reportedly for the last three years.

   The address is deemed unsuitable.

   [87] Exhibit 5.

9. Ms Hill visited the respondent's mother at her home on 18 May 2021 with another officer at a prearranged time.  The respondent's mother was polite and engaging but did not allow Ms Hill to enter the house because she claimed the house was untidy.  Ms Hill informed the respondent's mother of the current proceedings and the purpose of the visit and while she acknowledge this, her level of comprehension seemed low and she appeared to have little knowledge of his prior offending other than she was aware of robbery offences.  The respondent's mother also indicated she was unaware of the respondent's history of use of illicit substances, noting that she would not recognise the indicators which would suggest a lapse or relapse, but she verbalised her disapproval regarding the use of illicit substances and said that this behaviour would not be tolerated within the home.  She also told Ms Hill that should she become aware of the use of any illicit substances she would not hesitate to contact the respondent's supervising officer.  Ms Hill asked the respondent's mother whether there was anyone else living at her property and she told Ms Hill that she was the only person who resided at the property and that the only person who attends her home frequently was her daughter.  She also said that her grandchildren who are over the age of 16 years of age visit on occasions.[88]

   [88] ts 162.

10. Ms Hill subsequently spoke to the respondent and he gave her permission to speak to his mother again and inform her fully about his history of offending.  Ms Hill spoke to the respondent's mother on the telephone on 11 June 2021.  After providing information about the respondent's sexual offending history the respondent's mother confirmed that she was still willing to accommodate and support the respondent should he be released. 

11. Ms Hill also made enquiries of the Department of Communities, Child Protection and Family Support as to whether they had any concerns about the respondent residing at his mother's residence.  In response they identified that there were vulnerable families with complex issues in the immediate environs of the home but stated it would be unjust to prevent the respondent from residing at the address due to these reasons.  In her report Ms Hill noted that the respondent had previously resided at this address and his most recent offences occurred whilst living at the residence.  This assumption, however, does not appear to be correct in light of what is stated by Dr Wojnarowska in a psychiatric report dated 13 September 2018 which was prepared for sentencing for the respondent's most recent offences.  In this report Dr Wojnarowska stated that: (a) the respondent initially lived with his mother after being released from prison on 11 September 2017 but he then became homeless, as his mother did not approve of his drug use; and (b) he was living on the streets and injecting drugs on a daily basis at the time when he committed the offences. 

12. Ms Hill also made enquiries of the WA Police who undertook a Desktop Spatial Analysis of the proposed residence and advised that there is illicit drug activity occurring in the immediate environs of the property, and identified five schools within a 2 km radius of the property.  Ms Hill noted that the school areas could be zoned as 'exclusion areas' to deter the respondent from entering the locations.  When Ms Hill gave oral evidence she said that if the police were aware of anyone else living at the property, they would have informed her of that.

13. Ms Hill also made enquiries of the Department of Communities housing division who did not indicate that they were aware of anyone other than the respondent's mother living at the property occupied by the respondent's mother.[89]

    [89] ts 179.

14. Ms Hill also made enquiries of the Victim‑Offender Mediation Unit who stated that the victims of the respondent's offending are not in the suburb where he proposes to live, although it is thought that they may be in nearby suburbs, but previous attempts to contact the victims have been unsuccessful.  They requested that if the respondent is released on a supervision order it be a condition that he have no direct or indirect contact with victims which is now reflected in the proposed supervision order conditions.

15. Although the enquiries made by Ms Hill about the respondent's mother's accommodation appear to address most of the issues of concern raised by the author of the December 2018 assessment of the suitability of this accommodation, Ms Hill offered no opinion to the court about whether the respondent's mother's accommodation can now be regarded as suitable.  She also made no enquiries about any other accommodation.  This is despite the fact that Dr Wojnarowska had recommended in her recent report dated 11 June 2021 that if the respondent were to be released suitable accommodation would be a psychiatric hostel, and in the December 2018 accommodation assessment report records that a psychiatrist had recommended on release the respondent be housed in psychiatric supportive/hostel type accommodation to ensure compliance with medication and adequate supports.[90] To her credit, however, Ms Hill said that she should have discussed with the respondent options for alternative accommodation (other than his mother's residence) if he were to be released on a supervision order.

    [90] Exhibit 5.

1. In her report, Ms Hill notes that in May 2021, the respondent was referred to and accepted into Uniting WA's Specialist Re‑Entry Services.  However, he will be required to engage for a minimum period of six months before Uniting WA is able to provide him post‑release support.  

2. After the hearing of this application, the Community Offender Monitoring Unit provided advice to the court that the six month mandatory period of engagement will be completed by 28 November 2021. 

3. The post-release support provided by Uniting WA is tailored to each individual participant but generally Uniting WA staff will spend approximately 10 ‑ 20 hours a week with a newly released person for the first two weeks, subject to availability.  This contact reduces as the participant becomes more reintegrated into the community.

4. The respondent will be dependent on Centrelink benefits if released but has indicated that he is motivated to obtain employment.  Given his limited employment record, Ms Hill is of the opinion that the reality of his obtaining and maintaining employment may be unrealistic.

5. The Sex Offender Registry advises that the respondent was made subject to an order under s 13 of the Community Protection (Offender Reporting) Act 2004.  Should he be released, he will be required to commence reporting to WA Police, which will continue for a period of 8 years.

6. Attached to Ms Hill's report is a proposed draft supervision order containing 46 conditions which have been prepared with the objective of enhancing the supervision, monitoring and management of the respondent in the community, including engagement in individual psychological counselling, imposition of a curfew and global positioning system (GPS) tracking, engaging with pro‑social supports and finding employment.

Is the respondent a high risk serious offender?

1. Having regard to the factors in s 7(3) of the HRSO Act, and by regard to all of the evidence before the court (by relying on cogent and acceptable evidence), I am satisfied to a high degree of probability that it is necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against an unacceptable risk that the respondent will commit a serious offence.

2. The reason why I have found that there is an unacceptable risk that the respondent will commit a serious offence is because I accept the evidence of both Dr Wojnarowska and Ms Hasson that if the respondent is not made subject to a restriction order there is an imminent risk that he would commit an indecent aggravated assault, that is an indecent assault of a woman that involves either bodily harm or an act which is likely seriously and substantially to degrade or humiliate the victim, which has the potential to cause psychological and physical harm to victims.

3. Counsel for the respondent argued that the court could not be satisfied to a high degree of probability that it is necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against an unacceptable risk that the respondent may commit a serious offence on grounds because if the court does not make a restriction order he will be released from custody on a post‑sentence supervision order and supervised by the Prisoners Review Board. 

4. On 14 April 2021, the Prisoners Review Board made a post‑sentence supervision order to start on 15 April 2021 and to expire on 14 April 2023.  The standard obligations of the order, are that he must:

   (a)report to a nominated address in East Perth, within 72 hours after being released, or as otherwise directed by a community corrections officer;

   (b)notify a community corrections officer of any change of address or place of employment within two clear working days after the change; and

   (c)comply with s 76 of the Sentence Administration Act 2003 (WA), which conditions include complying with the lawful orders or directions of any community corrections officer.

5. The additional requirements of the order are that he is:

   (a)not to have direct or indirect contact with the victim;

   (b)not to use or be in possession of any illicit drug including cannabis;

   (c)attend random urinalysis for all illicit substances as directed by the community corrections officer and provide a valid sample;

   (d)not to consume alcohol;

   (e)not to enter licensed premises except cafés, restaurants and sporting venues or grocery stores which may have a liquor licence, but no purchase of liquor permitted at any venue;

   (f)to submit to random breath testing as required by Police;

   (g)to comply with mental health treatment as directed by a medical practitioner; and

   (h)to advise your community corrections officer of your residential address and not to change that address without the prior approval of the community corrections officer.

6. I am not persuaded that the post‑sentence supervision order made by the Prisoners Review Board on 14 April 2021 would ensure adequate protection of the community.

7. The conditions of the post‑sentence supervision order issued by the Prisoners Review Board are substantially prohibitory in nature and are not sufficient to address the respondent's unmet criminogenic treatment needs.  Although the Prisoners Review Board formed the opinion in making the order that a period of community supervision will enable further work to be undertaken by Corrective Services to address the respondents outstanding treatment needs in respect of substance abuse, sexual offending and consequential thinking, the conditions make no express provision for day‑to‑day support of the respondent at his accommodation or counselling by a specialist forensic psychologist.  Even though the conditions are prohibitory in nature, there is no provision for electronic monitoring or a curfew.  Further, in light of the respondent's cognitive deficits the conditions do not provide sufficient support to the respondent to put in place strategies to reintegrate him into the community and prevent relapse into the use of illicit substances, and support him in suitable accommodation.  In addition, the length of the post‑sentence supervision order is too short.  This is because the supervision period will expire on 14 April 2023 and cannot be extended.[91] It is clear from the evidence of Dr Wojnarowska and Ms Hasson that the respondent will require support, treatment and supervision for a much longer period.

   [91] Pursuant to s 74E(2) of the Sentence Administration Act 2003 (WA) a post-sentence supervision order cannot be made for a period less than six months and not more than two years.

8. The respondent has been diagnosed with schizophrenia, antisocial personality disorder, polysubstance use disorder, and has cognitive deficits, which factors contribute to his significant outstanding treatment needs which can only be addressed by individual counselling treatment and significant support in the community for a substantial period.

A supervision order should be made

1. On the evidence, I am satisfied that a supervision order should be made.  This is because I am satisfied that the risk can be managed to an acceptable level in the community, if he is subject to the conditions in the proposed supervision order and provided with support and treatment in the community.  Both Dr Wojnarowska and Ms Hasson agree that providing the respondent can be released into accommodation that is suitable with appropriate supervision, support, monitoring and early intervention to prevent relapsing into illicit substance abuse, the respondent's unmet treatment needs can be addressed through a supervision order.

2. I am satisfied that the respondent's mother's home would be suitable accommodation for the respondent on his release from custody.  This is because it is clear that the only person who resides at the house in question is the respondent's mother, and no concerns about any person residing at that address have been raised by the Police or the Department of Communities.  Although the respondent recently made a comment to Dr Bilyk that this accommodation was unsuitable, at the time the respondent made that comment he was displaying psychotic symptoms.  For this reason, I give no weight to what the respondent said to Dr Bilyk on that occasion.  Further, for reasons that follow, I am satisfied that adequate support can be provided to the respondent at his mother's home, if sufficient time is allowed before his release to put in place post‑release support from Uniting WA, and by the State Forensic Community Mental Health Service and the State Aboriginal Mental Health Service.

3. I am also of the opinion that prior to a supervision order coming into effect appropriate enquiries should be made to ascertain whether it would be possible and practicable for the respondent to reside at a psychiatric hostel or other supported accommodation on his release from custody, (including supported accommodation through the Uniting WA program, in respect of which he has since the hearing of this application been accepted on the waitlist for this accommodation).

4. Dr Wojnarowska, Ms Hasson and Ms Korda are firmly of the opinion that individual psychological counselling should commence prior to the release of the respondent from custody.  Importantly, Dr Wojnarowska and Ms Hasson are also of the view that on release the respondent should receive treatment and assistance from State Forensic Community Mental Health Service. 

5. I am satisfied on the balance of probabilities that if the respondent is released on a supervision order he will substantially comply with the standard conditions of a supervision order.

6. All of the witnesses called on behalf of the applicant have made it clear that the respondent is willing to accept all and any assistance on his release, and that he is very willing to engage in counselling in a meaningful way.  Although from time to time the respondent has not been compliant with his antipsychotic depot medication, it is clear from the medical records and notes whilst he has been in custody in 2020 and 2021 that he has actively sought out the administration of his monthly depot injection when his symptoms of schizophrenia return.

7. The proposed conditions require the respondent to engage in treatment, both psychological and pharmacological.  These include attending all appointments and receiving visits from any medical practitioner, psychiatrist, nurse, social worker, psychologist, support service and/or support person as directed by a community corrections officer.  He will also be required to undertake any medication regime.  He must also fully comply with that treatment and any testing to monitor his compliance with treatment.  In addition, he will also be specifically required to comply with the instructions of his treating psychiatrist with regard to his mental health treatment and medications.  He will be subject to a curfew and electronic monitoring.

8. After the hearing of this application the court was informed that the respondent meets the criteria for management by the State Forensic Community Mental Health Service and if released on a supervision order, arrangements can be made to ensure there is no 'service gap' between the treatment of his mental illness in custody and in the community.  Consequently, I am satisfied that his compliance with his antipsychotic medication can be appropriately monitored on his release.

9. The supervision order will also put in place measures to prevent the respondent from engaging in high risk situations.  These measures include prohibiting the respondent from possessing, consuming or using any prohibited drugs, plants or other substances, unless those drugs are prescribed for him.  He will be required to attend to and submit urinalysis or other testing for alcohol or prohibited drugs and to provide a valid sample.  He will be prohibited from possessing, consuming, purchasing or using alcohol.  Part of these measures also include a requirement that he report to his community corrections officer the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship by him with any person.  If directed by his community corrections officer he will be required to make disclosure of his past offending and supervision order to anyone with whom he commences a friendship, domestic, romantic, sexual or otherwise intimate relationship.

10. Although the conditions that will be imposed are very stringent and may create stress on the respondent, the conditions provide for a more extensive and a closer degree of supervision and monitoring than the conditions provided for by the Prisoners Review Board in the post‑sentence supervision order.  These proposed conditions should allow the authorities to detect any non‑compliance and act quickly if necessary to deal with any risk of the respondent reoffending.

11. The conditions of the supervision order should also include a condition that the respondent not attend a park where that park contains children's play equipment.

12. I am also satisfied that there are other measures that can be put in place to assist the respondent to comply with the standard conditions and the other proposed conditions of the supervision order set out in the report of Ms Hill.  This is because I intend to make a supervision order that will not take effect until an adequate period of time has elapsed to enable:

    (a)the respondent to engage with Uniting WA for the period of six months to enable that service to provide the respondent with post‑release services;

    (b)the respondent to commence counselling with a forensic psychologist prior to his release, to enable not only for a rapport to be established between the counsellor and the respondent but to commence addressing the respondent's unmet criminogenic treatment needs;

    (c)the respondent to undergo a neuropsychological testing in September 2021 to ascertain his level of cognitive functioning;

    (d)the respondent be referred for an assessment of FASD;

    (e) if new information becomes available for a new NDIS referral, for that referral to be made to the NDIA;

    (f)the respondent to be referred to the anti‑libidinal clinic run by Dr Wynn Owen to assess whether he is suitable for treatment, and if so for the commencement of that treatment; and

    (g)the respondent to be referred to the State Forensic Community Mental Health Service and the State Aboriginal Mental Health Service for arrangements to be made for the immediate support and treatment by those agencies on his release.

13. It is my opinion that a sufficient period of time to put in place these measures will be approximately four months from the date of the delivery of these reasons.  However, I will hear further from counsel as to the specific date the respondent should be released.

14. Pursuant to s 27(2) of the HRSO Act a supervision order has effect in accordance with its terms from the date stated in the order; and for a period stated in the order, and pursuant to s 27(3) the date from which a supervision order has effect must not be earlier than 21 days after the date the order is made. Section 27(3) does not, however, prohibit the court stating the date (from which the supervision order has effect) as a date that exceeds 21 days.

15. It is clear to me that because of the respondent's complex treatment needs the period of the supervision order should be 10 years. 

16. I am also of the view that the address of the respondent's proposed accommodation should not be published.  I agree that if it were published it could put the safety of the respondent and his mother at risk and persons from agencies who visit the address at risk from potential vigilante action.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

RC

Associate to the Honourable Justice Smith

9 AUGUST 2021