The State of Western Australia v Rodd [No 2] - [2024] WASC 432

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- RODD [No 2] [2024] WASC 432
CORAM:   STRK J
HEARD:   29 OCTOBER 2024
DELIVERED          :   29 OCTOBER 2024
PUBLISHED           :   20 NOVEMBER 2024
FILE NO/S:   SO 14 of 2023
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
TERRENCE RUDOLPH RODD
Respondent

Catchwords:

Criminal law - High Risk Serious Offenders Act 2020 (WA) - Application for a restriction order - Whether it is necessary to make a restriction order to ensure adequate protection of the community against the unacceptable risk that the respondent will commit a serious offence - Whether the risk of reoffending may be adequately managed in the community by the imposition of a supervision order - Turns on own facts

Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

Restriction order made
Continuing detention order made

Category: B

Representation:

Counsel:

Applicant	:	T Hollaway
Respondent	:	D J McKenzie

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	David McKenzie Legal

Case(s) referred to in decision(s):

Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38
Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212
Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Hart [2019] WASC 4
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Garlett v The State of Western Australia [2022] HCA 30; (2022) 277 CLR 1
Italiano v The State of Western Australia [2009] WASCA 116
The State of Western Australia v ACJ [2021] WASC 219
The State of Western Australia v Bellamy [2013] WASC 467
The State of Western Australia v Corbett [No 5] [2017] WASC 115
The State of Western Australia v D'Rozario [No 3] [2021] WASC 412
The State of Western Australia v Garlett [2021] WASC 387
The State of Western Australia v Hill [No 2] [2024] WASC 70
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v MacKay [No 2] [2020] WASC 474
The State of Western Australia v MAM [2022] WASC 100
The State of Western Australia v Narrier [No 2] [2022] WASC 49
The State of Western Australia v Nelson [2021] WASC 460
The State of Western Australia v Patrick [No 4] [2020] WASC 48
The State of Western Australia v Ryan [No 2] [2021] WASC 38
The State of Western Australia v West [No 6] [2019] WASC 427
The State of Western Australia v ZSJ [2020] WASC 330
Vella v Commissioner of Police (NSW) (2019) 269 CLR 219
Woods v The Director of Public Prosecutions (WA) (2008) 38 WAR 217

Table of Contents

Introduction

Statutory framework and legal principles

Two evaluative judgments

Evidence

Antecedents and criminal history - s 7(3)(g)

Childhood

Education and employment

Relationships

Alcohol and substance abuse

Criminal record - serious offences and other relevant offences

Prison behaviour

Responses to supervision

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

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

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

Expert reports and extent to which the respondent cooperated with examinations - s 7(3)(a)

Dr Petch's psychiatric report and evidence

Family history and personal history

Educational history and employment history

Relationship history

Drug and alcohol history

Forensic history

Intervention programs

Supervision history

Diagnosis

Risk assessment

Risk formulation

Risk scenarios

Conclusion

Recommendations

Dr Galloghly's psychological report and evidence

History of community supervision and parole issues

Background information

Prison behaviour

Offending history

Psychological assessment and treatment history

Understanding of violence and treatment needs

Future treatment and supervision issues

Diagnostic opinion

Offending formulation

Current assessment of risk

Treatment and community supervision issues

Summary and recommendations

Overall assessment of expert evidence

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

Mr Carmichael's proposed treatment options report

Ms Swadkins' community supervision assessment

Proposed community supervision plan

Strategies to manage offending behaviours

Past reports

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

Post-sentence supervision order

Accommodation

Analysis and findings

The risk that, if the offender were not be made subject to a restriction order, the offender would commit a serious offence

Is the risk that the respondent will commit a serious offence unacceptable?

The nature of the risk posed to the community

The likelihood of the respondent offending

The consequences to the respondent of making a finding that an unacceptable risk exists

Disposition

If the risk is found to be unacceptable, is it necessary to make a restriction order to ensure adequate community protection against a risk that the offender will commit a serious offence?

Continuing detention order or supervision order?

Conclusion and recommendations

STRK J:

Introduction

On 19 December 2023 the State of Western Australia applied pursuant to s 35 for a restriction order under s 48 of the High Risk Serious Offenders Act 2020 (WA) in relation to the respondent. It was the State's position that the making of a restriction order under the High Risk Serious Offenders Act in relation to the respondent was necessary to ensure the adequate protection of the community against an unacceptable risk that the respondent will commit a serious offence.
The respondent is 59 years of age and has an extensive criminal history. His criminal history includes 12 serious offences (as defined in the High Risk Serious Offenders Act), which include two counts of carnal knowledge with a girl under 16; seven counts of aggravated sexual penetration without consent; two counts of aggravated indecent assault; and one count of doing grievous bodily harm to another with intent to do grievous bodily harm.
When the State filed this application the respondent was in custody serving a concurrent term of imprisonment of eight years from 27 May 2016, which term has now come to an end. The 'index' offending for the purposes of this application was the offence of doing grievous bodily harm to another with intent to do grievous bodily harm committed on 27 May 2016, for which the respondent was convicted on 7 April 2017.
The application was listed for a preliminary hearing on 23 February 2024, following which it was ordered that the restriction application be heard on 20 August 2024.[1] The restriction application was re‑listed to 29 October 2024 to accommodate counsel's availability.[2]
[1] Order 1 of the orders made on 23 February 2024 (Fiannaca J).
[2] Order 2 of the orders made on 22 July 2024 (Strk J).
By the application filed on 19 December 2023 the State sought an interim order that until the conclusion of the hearing and judgment on the application, the respondent be detained in custody, or alternatively released subject to the conditions of a supervision order. That part of the application was adjourned to a hearing on 2 April 2024, and then again to 9 May 2024 and to 14 May 2024.[3] On 14 May 2024 it was ordered that the respondent be detained in custody until the final determination of the application.
[3] Order 9 of the orders made on 23 February 2024; order 1 of the orders made on 2 April 2024; ts 63 (9 May 2024) (Fiannaca J).
On 23 February 2024 programming orders were made under s 46(2)(a) and s 74 of the High Risk Serious Offenders Act requiring the respondent to undergo examinations by two qualified experts, namely one psychiatrist, Dr Edward Petch, and one psychologist, Dr Dylan Galloghly, for the purposes of preparing reports. Such orders were made to facilitate the preparation of reports to be used at the hearing of the restriction order application in circumstances where the court must have regard to such reports in determining the State's application by operation of s 7(3)(a) of the High Risk Serious Offenders Act.
At the substantive hearing of the application it was the State's position that in the event that the court was satisfied that the respondent was a high risk serious offender within the meaning of the High Risk Serious Offenders Act, it was a matter for the court as to what order to subsequently make. That said, in all of the circumstances, the State submitted that the court should not be satisfied that a supervision order would ensure adequate protection of the community against the unacceptable risk that the respondent will commit a serious offence and as such, the only appropriate order was that the respondent be detained on a continuing detention order.[4]
[4] ts 85 ‑ 86, 147 ‑ 154 (29 October 2024).
The respondent was represented by counsel at the hearing of the application. It was accepted on behalf of the respondent that it was open for the court to find him to be a high risk serious offender, and while it was not conceded, the making of a restriction order was not opposed.[5] I understood counsel for the respondent to further submit that if the court were to find the respondent to be a high risk serious offender, then given the absence of suitable accommodation, the making of a continuing detention order was not opposed.[6]
[5] ts 87 ‑ 88, 154 (29 October 2024).
[6] ts 154 ‑ 156 (29 October 2024).
The responsibility for deciding whether or not the offender is a high risk serious offender (formerly a serious danger to the community) as defined, and if so what order should be made, is that of the judge alone.[7] For the reasons that follow, I was satisfied that it was necessary to make a restriction order to ensure adequate protection of the community against the unacceptable risk that the respondent would commit a serious offence. Further, I determined that it was appropriate that the respondent be subject to a continuing detention order.
[7] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [62], which concerned an application under the now repealed Dangerous Sexual Offenders Act 2006 (WA).
My reasons were delivered extemporaneously on 29 October 2024. As was then foreshadowed, my reasons would be published and are set out below. My reasons have been edited from the transcript to include a comprehensive overview of the (not controversial) statutory framework and applicable principles, complete references, an overview of the evidence that had been referenced in short form, and to correct infelicities of language.

Statutory framework and legal principles

I did not understand there to be any controversy between the parties as to the operation of the statutory framework, nor as to the legal principles to be applied.
The objects of the High Risk Serious Offenders Act as outlined in s 8 are to provide for:
(a)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)the continuing control, care or treatment of high risk serious offenders.
Section 7(1) of the High Risk Serious Offenders Act provides that a 'high risk serious offender' is a person in relation to whom the court is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order so as to ensure adequate protection of the community against the unacceptable risk that the person will commit a serious offence.
For the purpose of the High Risk Serious Offenders Act, a 'restriction order' means a continuing detention order or a supervision order.[8] A continuing detention order is an order that the offender be detained in custody for an indefinite term for control, care, or treatment. A supervision order is an order that the offender, when not in custody, is to be subject to conditions in accordance with s 30 of the High Risk Serious Offenders Act.
[8] High Risk Serious Offenders Act s 3.
A 'serious offence' is an offence that is specified in sch 1 div 1 of the High Risk Serious Offenders Act, or is specified in sch 1 div 2 and is committed in circumstances indicated in relation to that offence in div 2.[9] Relevantly, a 'serious offence' within the meaning of the High Risk Serious Offenders Act includes an act intended to cause grievous bodily harm, aggravated sexual penetration without consent, aggravated indecent assault, and carnal knowledge of a girl under the age of 16.[10]
[9] High Risk Serious Offenders Act s 3, s 5(1) and s 5(2).
[10] High Risk Serious Offenders Act sch 1 div 1 sub-div 3, items 13, 22, 20 and 17.
The State bears the onus of satisfying the court that the respondent is a high risk serious offender, and the court must be satisfied of the same by acceptable and cogent evidence, and to a high degree of probability.[11]
[11] High Risk Serious Offenders Act s 7(1) and s 7(2).
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 High Risk Serious Offenders Act:
(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; and
(j)any other relevant matter.
The matters set out in s 7(3)(h) and (i) above are conclusions or findings based on s 7(3)(a) ‑ (g) and (j) of the High Risk Serious Offenders Act.
By reason of the definition of 'high risk serious offender' contained in s 7(1) of the High Risk Serious Offenders Act, before the court can find that the offender is a high risk serious offender, it must be satisfied of the matters referred to in s 7(1) 'by acceptable and cogent evidence and to a high degree of probability'.[12] The 'high degree of probability' standard is a higher standard than the standard of the balance of probabilities but is a lesser standard than the standard of beyond reasonable doubt. The standard is otherwise incapable of further definition.[13]
[12] As was observed in The State of Western Australia v Hill[No 2] [2024] WASC 70 [23].
[13] The State of Western Australia v Hill [No 2] [23], citing Director of Public Prosecutions (WA) v GTR [28]; The State of Western Australia v West [No 6] [2019] WASC 427 [24]; and The State of Western Australia v ZSJ [2020] WASC 330 [47].
The requirement is not that the risk that the offender will commit a serious offence must be at some high percentage of probability. A risk that the offender will commit a serious offence may be less than 50% yet still be an unacceptable risk.[14] It is the necessity to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence that must be proved by acceptable and cogent evidence and to a high degree of probability.[15]
[14] The State of Western Australia v Hill [No 2] [24], citing The State of Western Australia v West [No 6] [24]; and The State of Western Australia v ZSJ [47].
[15] The State of Western Australia v Hill [No 2] [24].
In considering whether it is satisfied as required by s 7(1), the court must disregard the possibility that the respondent might temporarily be prevented from committing a serious offence by imprisonment, remand in custody, or the imposition of bail conditions.[16]
[16] High Risk Serious Offenders Act s 7(4).
Section 48(1) of the High Risk Serious Offenders Act provides that if the court hearing a restriction order application finds that the offender is a high risk serious offender, the court must make in relation to the offender a continuing detention order, or a supervision order (except as provided in s 29).[17] The court is not invested with a residual discretion to decline to make a restriction order.[18] In deciding whether to make a detention order or a supervision order, the paramount consideration is the need to ensure adequate protection of the community.[19]
[17] High Risk Serious Offenders Act s 29 is reproduced at [25] below.
[18] Garlett v The State of Western Australia [2022] HCA 30; (2022) 277 CLR 1 [72].
[19] High Risk Serious Offenders Act s 48(2).
The powers conferred by the High Risk Serious Offenders Act, like the now‑repealed Dangerous Sexual Offenders Act 2006 (WA), 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.[20] This requires the court to choose the order that is the least invasive or destructive of the offender's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community.[21] The requirement in s 48(2) of the High Risk Serious Offenders Act does not exclude other considerations.[22]
[20] High Risk Serious Offenders Act s 48(2).
[21] The State of Western Australia v Latimer [2006] WASC 235 [49].
[22] The State of Western Australia v ACJ [2021] WASC 219 [32].
The High Risk Serious Offenders Act, like the Dangerous Sexual Offenders Act, does not require that there be no risk of reoffending. Rather, the issue is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community.[23] 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.[24]
[23] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33], citing Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [57].
[24] The State of Western Australia v ACJ [32], citing Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14].
By s 48(1)(b) of the High Risk Serious Offenders Act, the power of the court to make a supervision order is subject to s 29, which provides as follows:
29.Limitation on power to make or amend supervision order
(1) A court cannot make, affirm or amend a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made, affirmed or amended.
(2) The onus of proof as to the matter described in subsection (1) is on the offender.
(3)This section does not apply to the making of an interim supervision order.
The term 'standard conditions' in relation to a supervision order is defined in s 3 of the High Risk Serious Offenders Act to mean a condition that under s 30(2) of the High Risk Serious Offenders Act must be included in the order. Section 30(2) of the High Risk Serious Offenders Act specifies seven conditions that must be included in a supervision order.

Two evaluative judgments

Section 7(1) of the High Risk Serious Offenders Act was considered by Corboy J in The State of Western Australia v Garlett [2021] WASC 387. His Honour preferred an interpretation of the section (read with s 48) that requires the court to assess two separate matters.[25] First, whether a risk that an offender will commit a serious offence is unacceptable; and secondly, if the risk is found to be unacceptable, whether it is necessary to make a restriction order to ensure adequate community protection against a risk that the offender will commit a serious offence. That is, s 7(1) involves two evaluative judgments, and 'necessity' and 'adequacy' involve evaluative assessments.
[25] See also The State of Western Australia v D'Rozario [No 3] [2021] WASC 412 [18] - [22]; The State of Western Australia v Narrier [No 2] [2022] WASC 49 [23]; The State of Western Australia v Nelson [2021] WASC 460 [12] - [15]; and The State of Western Australia v MAM [2022] WASC 100 [18].

The word 'unacceptable' might carry a meaning similar to that suggested by French CJ in Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 at [23], that is, a risk that is not trivial or transient.[26] Further, the factors identified by Wheeler JA in Director of Public Prosecutions (WA) v Williams, and Buss JA in Italiano v The State of Western Australia [2009] WASCA 116, and the balancing exercise to which their Honours referred, would be most relevant to the determination of whether it was necessary to make a restriction order to adequately protect the community.[27]
[26] The State of Western Australia v Garlett [136(b)], [126].
[27] The State of Western Australia v Garlett [136(c)].
I proceeded on the basis that these separate matters need to be demonstrated 'by acceptable and cogent evidence and to a high degree of probability'.[28] As noted above, the expression 'high degree of probability' connotes a standard that is more than the civil standard but less than the criminal standard of proof.[29]
[28] High Risk Serious Offenders Act s 7(1). See also High Risk Serious Offenders Act s 82(2).
[29] Director of Public Prosecutions (WA) v GTR [28].
The effect of this distinction, as Corboy J observed in The State of Western Australia v Garlett, is to make clear the possibility that the court might find that it was not necessary to make a restriction order to adequately protect the community notwithstanding that it has found that the risk of future offending was unacceptable.[30] As to such possibility, Quinlan CJ observed:[31]
While no doubt such a situation would be rare, it is possible to envisage circumstances in which that might be the case. For example, it may be that, in the circumstances of a particular case, other external restraints on an offender (such as a post-sentence supervision order under the Sentence Administration Act 2003 (WA)) may provide adequate protection of the community against the unacceptable risk that the offender will commit a serious offence (such that a restriction order is not 'necessary').
[30] The State of Western Australia v Garlett [136(d)], as noted by Quinlan CJ in The State of Western Australia v D'Rozario [No 3] [21].
[31] The State of Western Australia v D'Rozario [No 3] [21].
As Corboy J observed in The State of Western Australia v Garlett, s 7(1) recognises that the need to ensure adequate protection for the community should form part of the court's determination of whether the offender is a high risk serious offender (the first step in making a restriction order), and not merely the paramount consideration in deciding what form of order should be made in respect of an offender who has been found to be a high risk serious offender (the second step).[32]
[32] The State of Western Australia v Garlett [139], cited with approval by Quinlan CJ in The State of Western Australia v D'Rozario [No 3] [22].

Evidence

At the hearing of this application, I received into evidence without objection a book of materials in three volumes.[33] The first and second were dated 7 June 2024 and the third was dated 17 October 2024.
[33] Exhibits 1 ‑ 3.
The first volume contained a copy of the respondent's Western Australian criminal record; a chronology of offending prepared by the State Solicitor's Office dated 18 December 2023; various Department of Justice prison records; various medical records; and the respondent's substance use test results for the period 30 May 2019 to 5 June 2024.
The second volume contained the affidavits of Cassie McNally, Rosemary Rodd and Antoinette Fedele (which affidavits were prepared for the purposes of this proceeding); various transcripts of hearings in the Supreme Court before Fiannaca J referred to above at [5]; documents which concern the respondent's offending history for offences which constitute 'serious offences' under the High Risk Serious Offenders Act, including indictments, statements of material facts, transcripts, a pre‑sentence report, and a psychological report prepared by Gail Della Torre dated 31 March 2017; documents which concern the respondent's offending history for offences which do not constitute 'serious offences' under the High Risk Serious Offenders Act but the State submitted were relevant offences, including indictments, prosecution notices, statements of material facts and transcripts; reports including psychological and program completion reports; and post‑sentence reports and other materials.
The third volume contained a copy of four reports prepared for the purpose of this hearing.
At the hearing of the State's application, with leave, three witnesses gave oral evidence and their reports were received into evidence (which reports were incorporated in the third volume of the book of materials).[34] They were as follows:
(a)Dr Edward Petch, author of a psychiatric report dated 17 September 2024;
(b)Dr Dylan Galloghly, author of a psychological report dated 16 September 2024; and
(c)Duncan Swadkins, author of and one of the four signatories to a community supervision assessment report dated 15 October 2024.
[34] ts 83 - 85 (29 October 2024); order 8 of the orders made on 23 February 2024 (Fiannaca J).
The State also tendered the following documents into evidence:
(a)a treatment completion report (prison) dated 12 June 2002 which concerned the respondent's participation in the Intensive Sex Offender Treatment Program from 5 November 2001 to 31 May 2002;[35]
(b)a treatment completion report dated 27 August 2004 which concerned the respondent's participation in the Building Better Relationships program from 24 May 2004 to 13 August 2004;[36] and
(c)a bundle of prison records concerning the respondent, the reports having been run to capture the period between 5 June 2024 to 25 October 2024.[37]
[35] Exhibit 4.
[36] Exhibit 5.
[37] Exhibit 6.
All of the tendered documents admitted into evidence were tendered without objection. I accepted that they were admissible for the purposes of the proceeding under the High Risk Serious Offenders Act. As to the use that the court ought make of the six documentary exhibits, counsel for the State indicated that:[38]
(a)the State sought to draw particular emphasis from the materials related to those offences regarded as 'serious offences' for the purposes of the High Risk Serious Offenders Act;
(b)as to the other offences for which the respondent had been convicted that were not 'serious offences' for the purposes of the High Risk Serious Offenders Act, it was the State's submission that those were nonetheless relevant offences, given their nature; and
(c)it was the State's submission that the material tendered which was associated with those other offences was 'relevant material' for the purposes of s 84(5) of the High Risk Serious Offenders Act, as it detailed offending conduct that was consistent with the conduct identified by Dr Petch in his psychiatric report dated 17 September 2024, and Dr Galloghly in his psychological report dated 16 September 2024, as being part of offending which the respondent may engage in the future.
[38] Submissions filed on behalf of the State, pars 11 - 13.
Over 1300 pages of documentary evidence was tendered. In the disposition of the application, cognisant of the observations made by Allanson J in The State of Western Australia v MacKay [No 2] [2020] WASC 474 at [37] to [40], I gave careful consideration as to whether all of the tendered documents were acceptable and cogent evidence for the purposes of s 7(1), so as to satisfy the court to a high degree of probability that it was necessary to make a restriction order.
In advance of the hearing, counsel for the State filed a written outline of submissions dated 25 October 2024, together with a minute of proposed supervision order and a minute of proposed detention order. I had regard to the same in the disposition of the application.
During the course of the hearing, the respondent did not give evidence and no documentary evidence was tendered on behalf of the respondent. The findings made were therefore grounded upon the documentary evidence, including the reports received, the evidence of the three witnesses called on behalf of the State, and the cross‑examination of the State's witnesses.

Antecedents and criminal history - s 7(3)(g)

I turn to the matters relevant to determining whether or not the respondent is a high risk serious offender pursuant to s 7 of the High Risk Serious Offenders Act.
In deciding whether a person is a high risk serious offender, the court must have regard to the person's antecedents and criminal record. That requires that all prior offences be considered, to the extent that such offences are relevant to the question of whether the person is a high risk serious offender within the meaning of the High Risk Serious Offenders Act (whether they be serious offences or not). It also requires consideration of the person's antecedents, including the context in which the past offences were committed.[39]
[39] As observed by McGrath J in The State of Western Australia v Nelson [33].
I proceeded cognisant that the respondent's criminal record and antecedents were relevant in and of themselves, but were also relevant to whether the respondent has a propensity to commit serious offences in the future. Further, the criminal record and antecedents were relevant as to whether there was any pattern of offending behaviour.[40] It was therefore convenient to first consider the respondent's criminal record and antecedents as required by s 7(3)(g).
[40] Again, as observed by McGrath J in The State of Western Australia v Nelson [34], referring to the High Risk Serious Offenders Act s 7(3)(c) and s 7(3)(d).
Although s 7(3)(g) of the High Risk Serious Offenders Act provides that a court must have regard to the offender's criminal record in deciding whether the person is a high risk serious offender, the mere fact that a person has committed previous offences does not necessarily mean that there is an unacceptable risk that they will commit a serious offence in the future if they are not subject to a continuing detention order or a supervision order. The relevance of a prior criminal record depends on the nature of the offences committed, the number of them and the period of time over which they were committed. Nonetheless, past behaviour is often a good indicator of future conduct.[41]

Childhood

[41] The State of Western Australia v Hill [No 2] [30].

The State submitted and I accepted that the respondent's history was marked by violence and disadvantage.[42] The respondent reported to Dr Petch that he was the eighth of 13 children to his parents, and that his birth and early development had been normal. The respondent reported to Dr Petch that his family were of Noongar heritage, that there were often many people around, and that there was a lot of drinking at family get‑togethers which provoked fights and violence which he viewed as normal due to the frequency at which this would occur. The respondent noted to Dr Petch that he was 'flogged' occasionally but never scared as he was never assaulted or abused himself. Dr Galloghly recorded that the respondent experienced physical and sexual abuse from an uncle when he was five years old, and experienced sexual abuse when he was taken into State care at approximately 10 years old. Dr Petch also recorded that the respondent had reported that he was mistreated, and physically and sexually abused when removed from his family at the age of 10.
[42] Submissions filed on behalf of the State, par 102.
As to his father, the respondent reported to Dr Petch that he had a good relationship with and fond memories of his father before his death when the respondent was 10 years old, and reported that his father never assaulted his children. The respondent further reported that his father was violent and an alcoholic, and that there was significant domestic violence, police involvement, and periods where his father was in prison.
As to his mother, the respondent reported to Dr Petch that his mother was jailed for approximately four years for manslaughter when he was aged 10, and that after she was released, she spent most of her time raising her large family before dying in her 60s or 70s of old age. The respondent reported that he had witnessed his mother killing another woman by stabbing her when he was aged eight or nine, at which point he was removed and sent to a mission. He further reported to Dr Petch that while he felt safe with the other boys, the staff regularly bullied and abused him both violently and sexually. Dr Petch noted that the respondent's offending began when he was aged 12 while living at the mission.
As to his siblings, the respondent reported to Dr Petch that he has a good relationship with all of his surviving siblings, who he described as without any mental health problems. The respondent reported to Dr Galloghly that his sister, Rosemary, was his strongest family support as a Christian who does not allow drug use or antisocial behaviour.

Education and employment

With respect to education, the respondent attended local school when he was younger but stopped attending after year 5. Dr Petch noted that while in custody, the respondent attended numerous education programs between 1998 and 2004 including adult literacy, numeracy and some art courses, and further noted that the respondent had completed three quarters of the units required in an Arts degree from Curtin University.
With respect to employment in a non‑custodial setting, the respondent reported to Dr Petch that he had held various jobs including as a sheet metal fabricator, a slaughterman at a meatworks, and as a general labourer. The respondent reported to Dr Galloghly that he had undertaken little training towards employment in prison apart from a short welding course. The respondent reported that he would like to work when released from prison and that he was open to working on farms, sheep shearing or in a meat factory. The respondent reported to Dr Petch that in custody over the years, he had intermittently held positions in cleaning, gardening, tending the grounds, as a peer tutor in art, and in the kitchen.

Relationships

The respondent's relationship history consisted of sequential partners. He has fathered 10 children with six different women. The respondent is unmarried. He reported to Dr Petch that there had been violence in all his romantic relationships 'but not purposefully'.
He reported to Dr Galloghly that he had nearly always been in some form of relationship when not in prison and had never been single for long. He denied having a high sexual drive or abnormal sexual interest, asserting that his sexual drive was now low, and that he does not have a sexual interest in children. Dr Galloghly noted the respondent's vexation at being labelled a sexual offender.

Alcohol and substance abuse

The respondent has a history of alcohol and drug use, and Dr Petch opined that their use had been the most serious barrier preventing the respondent's progress and maintaining his risk.[43] The respondent reported that he had smoked cigarettes before moving to cannabis. He reported to Dr Petch that his use of cannabis escalated because it 'took away' his past, brought his 'artistic side out' and helped him 'chill'. The respondent also reported using methamphetamine a lot prior to being in custody.
[43] Exhibit 3, book of materials vol 3, page 837 (Psychiatric report prepared by Dr E Petch dated 17 September 2024, page 67).
The respondent stated that he first tried alcohol at age 10 before drinking a lot around the ages 16 and 17. Dr Petch recorded that the respondent had reported that he predominantly drank when with other people; that he tended to drink in a large group; that when intoxicated 'all caution goes'; that alcohol made it easier for him to be violent; and that he had a short temper when intoxicated. The respondent further reported to Dr Petch that all of his serious offences were committed when he was intoxicated and had mixed with the wrong people; that he had made numerous attempts to rehabilitate himself from alcohol and drug use; and that he had been unsuccessful as he had 'continued to mix with the wrong crowd'. Dr Galloghly also noted that the respondent had often been intoxicated when he committed serious offences in the past, which he discerned from statements of material facts, sentencing remarks and previous reports.[44]

Criminal record - serious offences and other relevant offences

[44] Exhibit 3, book of materials vol 3, page 851 (Psychological report of Dr D Galloghly dated 16 September 2024, page 6); ts 121 (29 October 2024).

The respondent has an extensive criminal history, with convictions recorded under the Criminal Code, the Road Traffic Act 1974 (WA), the Community Protection (Offender Reporting) Act 2004 (WA), and the Criminal Investigation Act 2006 (WA). His record reveals a history of committing violent, sexual and other offences from a young age.
For the purpose of the restriction order hearing, the State prepared a chronology of the respondent's offending which it submitted fell within the meaning of a serious offence under the High Risk Serious Offenders Act, and other offences the State submitted were relevant offences. The chronology included the date and nature of each offence; a high level summary of the material facts for each offence; the date of outcome; and the outcome or sentence imposed.[45] On behalf of the State it was noted that the respondent continued to reoffend in a violent manner over the course of his life and would appear to be a recidivist domestic violence offender.[46] Further, it was submitted that his violence towards women has escalated despite previous attempts at rehabilitation.[47] Although only one 'serious offence' was committed against an intimate partner, other 'serious offences' had occurred as a result of sexual violence towards a female.[48]
[45] Exhibit 1, book of materials vol 1, pages 17 ‑ 21 (Chronology of offending dated 18 December 2023).
[46] Submissions filed on behalf of the State, par 104.
[47] Submissions filed on behalf of the State, par 105.
[48] As noted in the submissions filed on behalf of the State, par 94.
As to the 'index' offending for the purposes of this application, on 16 February 2017 after a trial by judge and jury the respondent was convicted of a charge of with intent to do grievous bodily harm, unlawfully doing grievous bodily harm. The facts of the charge upon which the respondent was convicted and for which he was sentenced were as follows:[49]
[49] Exhibit 2, book of materials vol 2, pages 604 ‑ 605 (Statement of material facts); pages 633 ‑ 638 (Transcript, District Court Sentencing ts 309 ‑ 314 (7 April 2017)).
The victim in this matter is a 53 year old female, 173 centimetres tall and of slim build. The accused is a 50 year old male, 170 centimetres tall and of slim build.
The victim and the accused are in a casual relationship.
Between 6.00pm and 6.20pm on 27 May 2016 the victim was at her home address of [redacted].
The accused was conveyed to a nearby location by Police as the result of another matter. [redacted] The accused went to the victim's house where he commenced a physical assault of the victim on the front veranda and lawn.
The victim attempted to escape into the house and the accused followed her inside further assaulting her in the hallway, kitchen and lounge areas of the house. (Obvious blood deposit identified by Forensic Police).
The victim made her way to a sofa bed that was made up in the lounge room. The accused straddled the victim and continued to punch her to the face and head. The accused choked the victim by strangling her around the neck.
While the assault was in progress, a friend of the victim arrived and pushed open the front door where she observed the accused assaulting the victim. The accused shouted at the witness and ran at her to slam the front door shut. The witness withdrew from the scene and called the Police. On attendance Police observed the accused on the bed, straddling the victim attempting to conceal her body. The accused was secured on the floor and Police observed that the victim was naked from the waist down, not moving and was bleeding heavily from facial injuries. (Inquiries continuing in relation to a sexual assault).
St John Ambulance paramedicas [sic] attended and provided medical assistance to the victim, who's breathing had ceased and she suffered a seizure.
The victim was conveyed lo [sic] Katanning Hospital and then the State Trauma Centre at Royal Perth Hospital. As a result of the assault, the victim has multiple facial injuries with a potential fracture to her eye socket, swelling and abrasions to her throat and neck, bleeding on the brain and a pneumo-thorax injury causing bleeding on her lung requiring immediate medical intervention to drain the fluid. The victim has been in an induced coma since the assault and unable to provide further details at this stage.
The accused was conveyed to the Katanning Police Station. Due to his level of agression [sic] and intoxication, the accused participated in an electronic record of interview on Saturday 28 May 2016 where he denied any knowledge of the offences.
The accused was subsequently charged and bail denied.

No concern was raised on behalf of the respondent as to the accuracy or adequacy of reports tendered by the State, including the information reproduced in the chronology. In determining this application, I had regard to the primary documents reproduced in the second volume of the book of materials concerning the respondent's offending, and to the State's chronology which was part of the first volume.
As noted above, the respondent's criminal history included at least 12 serious offences as defined in the High Risk Serious Offenders Act. Based on the information contained in the books of materials, Dr Petch calculated that the respondent had spent approximately 53% of his time since his 18^th birthday incarcerated.[50]

Prison behaviour

[50] ts 89 (29 October 2024).

The respondent had accumulated seven prison charges in the course of his most recent sentence, with the latest being recorded on 6 December 2023 for disorderly behaviour where he reportedly smashed a kettle and chair, and verbally threatened to stab his cellmate while holding pencils in his hand. Dr Galloghly noted that the respondent maintained that his most recent charge came about as an attempt to move cells. He maintained that he had never been violent in prison. The other charges concerned amongst other things the use and possession of drugs (cannabis, tramadol and buprenorphine), and insubordination/misconduct.
As to testing for substance use, Dr Galloghly reported that the respondent last returned a positive test for opiates on 3 August 2020. The respondent returned negative results since that date, with his most recent test having been taken on 22 January 2024.
Dr Galloghly noted that the respondent's most recent Individual Management Plan dated 18 April 2023 reported that the respondent was not a management issue, that he had been employed in the garden since 2017 and that he was regarded as a high quality worker. The respondent reportedly enjoys working in the garden as he enjoys physical work. He also reported that he was currently studying art through TAFE.

Responses to supervision

The respondent had been subject to eight separate periods of community supervision between 1989 and 2016. His compliance to community based supervision had been mixed.
Mr Swadkins reported that the respondent's most recent period of community supervision in 2016 had been completed satisfactorily. However, Mr Swadkins also recorded that records indicated that the respondent's engagement had been minimal, and that there had been continued drug use and failure to attend appointments as directed. It was suggested that the respondent's lack of stable accommodation in the period of supervision had been a contributing factor to his ability and motivation to comply with conditions of the order.
Dr Petch in his report commented on the respondent's previous responses to supervision, and opined that his inability to engage with previous periods of community supervision was a serious concern. The relevant passage of Dr Petch's report is reproduced at [93] of these reasons.

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

The word 'propensity' is taken to have its ordinary meaning in the context of the criminal law, that is, to have an inclination or tendency to do something.[51] In Director of Public Prosecutions (WA) v GTR at [178], in the context of an application made under the Dangerous Sexual Offenders Act, Murray AJA stated that:
[Propensity] means that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of a quality of a diagnosable mental illness or personality disorder.
[51] The State of Western Australia v Bellamy [2013] WASC 467 [70].
As was observed on behalf of the State, s 7(3)(c) of the High Risk Serious Offenders Act refers to 'serious offences' and not, for example, a propensity to offend generally or even a propensity for violence (not all violent offences being serious offences under the High Risk Serious Offenders Act).[52]
[52] Submissions filed on behalf of the State, par 90, citing The State of Western Australia v Ryan [No 2] [2021] WASC 38 [73].
I accepted the State's submission that the 'index' offence was a very serious assault by the respondent on an intimate partner, and that the respondent has a history of domestic violence committed against intimate partners. Women were the victim in 18 offences for which the respondent had been convicted, albeit only one of the respondent's 'serious offences' was committed against an intimate partner.[53]
[53] Submissions filed on behalf of the State, par 94.
Having regard to his extensive offending history, the respondent has a propensity to act violently towards women, which includes the propensity to commit serious sexual violence towards women.
Further, it appears that drug or alcohol use was involved in all of the respondent's previous offending. Unless his abuse of the same can be managed, I was satisfied that the respondent's propensity to commit offences against women involving violence, including sexual violence, is likely to be expressed in future offending.

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

'Pattern', as it pertains to behaviour, is defined in the Macquarie online dictionary as a recurrent way of acting by an individual or group towards a given object or in a given situation.
A review of the respondent's offending behaviour reveals that he repeatedly has been violent towards women, which violence has included brutal sexual violence where he has sought to overpower through physical violence and threats.

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

I was obliged to consider whether the respondent had made any efforts to address the cause or causes of his offending behaviour, including by participating in any rehabilitation programs, and whether or not such participation had had a positive effect.
Mr Carmichael recorded in his treatment options report dated 24 September 2024 the respondent's participation in intervention programs from 2001 to 2022, and included for each of the five programs completed 'treatment engagement feedback'. It was recorded that the respondent had made treatment gains to varying degrees of success in each of the five programs. Most recently the respondent completed a Violent Offending program in September 2022 at which some gains were made, with the respondent having been observed to have an emerging understanding of factors underlying his abusive practices. Various ongoing treatment needs were also identified.[54]
[54] Exhibit 2, book of materials vol 2, pages 746 ‑ 747 (Offender Closed Programs: Completion Report dated 13 December 2022, pages 3 - 4).
Among other things, Dr Petch opined that the respondent did not appear to make significant treatment gains from the programs and courses he had completed. Dr Petch further opined that his limited treatment gains was possibly due to a combination of limited intrinsic motivation, poor insight, poor comprehension, perhaps poor retention of information, and limited problem solving and attention skills; and that the respondent's use of alcohol and drugs had been the most serious barrier preventing his progress and maintaining his risk.[55] I accepted that the respondent had significant treatment needs.
[55] Exhibit 3, book of materials vol 3, page 837 (Psychiatric report prepared by Dr E Petch dated 17 September 2024, page 67).
As to individual counselling, which was recommended by both Dr Petch and Dr Galloghly, I noted that the respondent had been accepted by the Forensic Psychological Intervention Team and placed on the waitlist on 15 April 2024. Mr Carmichael recorded in his report that Mr Becker, a Forensic Psychologist, had been allocated to the respondent and that individual psychological counselling had commenced. Dr Galloghly recorded that Mr Becker had reported the respondent was agreeable to engaging in individual counselling in custody, which counselling could continue in the community if the respondent was released. I understood the respondent to be willing to undertake further treatment, but was concerned to remain in Albany prison and did not wish to be transferred to another prison.

Expert reports and extent to which the respondent cooperated with examinations - s 7(3)(a)

Dr Petch and Dr Galloghly prepared reports as required by s 46(2)(a) of the High Risk Serious Offenders Act. Each examined the respondent and prepared an independent report in accordance with the requirements prescribed in s 74. In their respective reports, Dr Petch and Dr Galloghly indicated their assessment of the level of risk that, without a restriction order, the respondent would commit a serious offence; and the reasons for their respective assessment.
As to the extent to which the respondent cooperated with the examinations, Dr Petch reported that the respondent attended the interview quite willingly, and that he was calm, pleasant and relaxed for the most part. Dr Galloghly reported that the respondent engaged appropriately in the assessment with a stable mood and spoke candidly about his offending.
As required by s 7(3)(a), I had regard to each of the reports in the disposition of this application. I was satisfied that each of the experts were appropriately qualified to proffer the opinions expressed. Set out in these reasons is a summary of the reports and evidence of the experts. It is not intended to be a comprehensive account of the same.

Dr Petch's psychiatric report and evidence

Dr Petch is a fellow of the UK Royal College of Psychiatrists and the Royal Australian and New Zealand College of Psychiatrists. He has extensive experience in preparing expert psychiatric reports and evidence. His qualifications were set out in his report.
Dr Petch interviewed the respondent at Albany Regional Prison on 11 June 2024. Sources of information for the preparation of his assessment included the first two volumes of the book of materials dated 7 June 2024.

Family history and personal history

Dr Petch recorded the respondent's recollection of his family history and personal history at pages 6 to 7 of his report. The respondent's report included some of the matters summarised at [46] to [49] above.

Educational history and employment history

Dr Petch recorded the respondent's report of his education and employment history at pages 7 to 8 of his report, which included some of the matters summarised at [50] and [51] above.

Relationship history

Dr Petch recorded the respondent's report of his relationship history at page 8 of his report, which included some of the matters summarised at [52] above.
Dr Petch reported that the respondent did not wish to discuss with him the respondent's sexual history.

Drug and alcohol history

Dr Petch recorded the respondent's report of his drug and alcohol history at pages 8 and 9 of his report, which included some of the matters summarised at [54] and [55] above.

Forensic history

Dr Petch summarised the respondent's offending history at page 11 of his report, before describing in detail the respondent's serious offending and his sentencing outcomes at pages 11 to 28 of his report. Dr Petch noted that the respondent's first conviction was recorded about the age of 12 with two charges of criminal damage. The respondent has since then been convicted with respect to a variety of offences including damage, acquisitive offences, burglary, driving offences, threats, drug offences, breach of orders, disorderly offences, resisting arrest, violent offences with use of weapons, and serious sexual offences. Dr Petch further noted that 12 of the convictions were for offences deemed as being 'serious' for the purposes of the High Risk Serious Offenders Act.
Dr Petch recorded that while the respondent did not wish to go through his offences with Dr Petch, the respondent talked about some of his more serious offending. This caused the respondent to become upset and leave the room on one occasion before returning.
As noted above, based on the information contained in the books of materials, Dr Petch had calculated that the respondent had spent approximately 53% of his time since his 18^th birthday incarcerated.[56] In the course of his evidence, Dr Petch also stated that there was evidence to suggest that the respondent was to some extent institutionalised, and that meant that he would face additional challenges moving towards community living.[57]

Intervention programs

[56] ts 89 (29 October 2024).

[57] ts 89 (29 October 2024).

Dr Petch recorded in his report the intervention programs completed by the respondent while in custody and summarised, among other things, the reports that had been made as to the respondent's engagement and any treatment gains at pages 32 to 40 of his report. He also recorded the programs that had been declined by the respondent and the programs completed while in the community at page 40 of his report.

Supervision history

Dr Petch reported that the respondent had been subject to six periods of community supervision between 1993 and 2016. This included four periods of parole and two periods of community based orders. Of the four parole periods, two were cancelled due to reoffending, and a community based order was also cancelled by reason of a breach during its term.
When describing the respondent's 'risk formulation' (discussed further below), Dr Petch expressed the following view drawn in part from the respondent's supervision history:[58]
[The respondent's] inability to engage with previous periods of community supervision are a serious concern. He has breached multiple orders, and this seems to betray a lack of concern about abiding by court or police directions. Some of these breaches may have been deliberate and others a reflection of his difficulties. He does not like being supervised in the community, and was resentful of some monitoring, particular by [the Sex Offender Management Squad], although I understand this will remain a requirement on release, with a 8 more years still to run on his registration on the Community Protection Offenders Register. He may not understand or remember conditions, or appointments, or may not sometimes be able to get to them. He does not seem to have responded well to the containment provided by previous conditions, nor the support provided by supervising officers.

Diagnosis

[58] Exhibit 3, book of materials vol 3, page 837 (Psychiatric report of Dr E Petch dated 17 September 2024, page 67).

In diagnosing the respondent, Dr Petch recorded that he had used the diagnostic system of the American Psychiatric Association known as Diagnostic and Statistic Manual of Mental Disorders, fifth edition (DSM‑5), informed by his clinical judgment. He recorded that there was evidence that the respondent suffers from substance misuse disorder and antisocial personality disorder, and explained the basis for that diagnosis.[59]
[59] See also ts 89 - 93 (29 September 2024).
With respect to the substance misuse disorder, among other things, Dr Petch opined that without further intervention, the respondent's risk of relapse into substance misuse was very serious; that substance misuse continued to be a major determinant of the respondent's risk of future serious offending; and that his disorder would likely be a very significant challenge for him in the short and long term.
With respect to the antisocial personality disorder, Dr Petch opined that the positive effects of programs that the respondent had engaged in were likely to have been negligible for the respondent, with their effects on reducing his risk described as being 'next to non‑existent'. He also opined that the disorder remained severe and did not appear to have significantly ameliorated through maturity.

Risk assessment

In assessing the respondent's risk, Dr Petch recorded that a structured professional judgment approach to risk assessment has consistently been shown to be more reliable than other assessments when considering violence risk; that a combination of historical data, clinical assessment data and structured assessment tools are widely regarded as being required when attempting to evaluate risk of future violence; and that this approach can be supplemented by actuarial approaches. Dr Petch also reported that in assessing the respondent's risk, he used a number of assessment tools, namely the Hare Psychopathy Checklist - Revised (PCL‑R), the Static‑99R, the Historical, Clinical and Risk Management 20 - Version 3 (HCR‑20), and the Risk for Sexual Violence Protocol - Version 2 (RSVP).

PCL-R

Dr Petch explained in his report that the PCL‑R is a reliable and valid rating scale used to determine the presence of psychopathy (rather than risk per se). Dr Petch accepted that the PCL‑R is not designed to predict recidivism or violence, but is considered to be a good predictor of violence risk, particularly when used with other tools such as the HCR‑20. Further, Dr Petch acknowledged that the extent to which the PCL‑R is valid for use in 'Western Australian Aboriginal men' is not known and a degree of caution should be exercised when interpreting the respondent's scores. In the course of his evidence, Dr Petch acknowledged that experts might reach different conclusions as to psychopathy, and noted that the margin of error is usually considered to be three in either direction.[60]
[60] ts 91 ‑ 92 (29 October 2024).
Total scores can range from zero to 40. Dr Petch recorded in his report that the respondent's PCL‑R score was 32, which he noted was in the upper range and met the necessary threshold for a diagnosis of psychopathy to be made. Dr Petch concluded that as such, the respondent's risk of reconviction of a violent offence within two years of release would be higher when compared to someone with a lower score, and that the presence of stable traits and predispositions consistent with psychopathy compelled a finding of high risk. In the course of his evidence, Dr Petch further noted that '[o]nce you hit above a certain level, which would be, say, mid-20s, you're getting into higher realms of significant factors denoting risk.'[61]
[61] ts 94 (29 October 2024).
Having acknowledged in the course of his evidence that there are quite often different results when evaluating psychopathy,[62] I understood Dr Petch to have been mindful to ensure on this occasion that he used a number of scales, professional judgment, structured judgment and actuarial scales in his assessment, so that his determination as to the presence of psychopathy was not of itself determinative of the opinion he expressed as to the risk posed by the respondent.[63]

Static-99R

[62] ts 91 (29 October 2024).

[63] ts 94 (29 October 2024).

Dr Petch explained that the Static‑99R is an actuarial tool intended to position offenders in terms of their relative degree of risk for sexual recidivism based on commonly available demographic and criminal history information that had been found to correlate with sexual recidivism in adult male sex offenders.
Dr Petch recorded that the respondent's Static‑99R score was seven, placing him in the well above average risk range (level 4b), meaning that 2% of offenders received a higher score than the respondent and 95% of offenders received a lower score than the respondent.
Among other things, Dr Petch also reported that the respondent would be expected to have a sexual recidivism rate that is five times higher than the average sex offender. Dr Petch reported that a score of seven yields an estimated recidivism rate of approximately 24% over five years and 32% over 10 years, meaning of 100 sexual offenders with a similar score to the respondent, approximately 24 would be reconvicted of a new sexual offence within five years, and 32 would be reconvicted within 10 years. Dr Petch further reported that when compared to a high risk high needs sample, those from that sample released with the same score had an average five year recidivism rate of about 31% and a 10 year rate of about 43%.

HCR-20

In his report Dr Petch described the HCR‑20 as a well validated and reliable semi‑structured clinical judgment tool used to assess the risk for violence, and acknowledged that the definition of violence as contained in the HCR‑20 manual does not directly correlate with the definition of 'serious offence' under the High Risk Serious Offenders Act.
Dr Petch considered the following historical risk factors as being relevant to the respondent's future risk of violence: his history of problems with violence (reported to be of high relevance); other antisocial behaviour particularly in association with peers or family members and when using drugs or alcohol (reported to be of high relevance); relationships, particularly his association with antisocial peers (reported to be of high relevance); his employment history; substance misuse (reported to be of high relevance); personality disorder (reported to be of high relevance); violent attitudes; and treatment or supervision response.
Dr Petch considered the following clinical risk factors as also being relevant to the respondent's risk of violence: his recent problems with insight with respect to the impact of substance misuse, offending, violence, his lack of appreciation for his risk of reoffending, and his unwillingness to discuss many offences (reported to be of high relevance); and his lack of insight into his aggressive demeanour (reported to be of moderate relevance).
Dr Petch also considered there to be a number of future problems present, particularly with respect to the respondent's engagement with professional services and plans (reported to be of high relevance); his living situation (reported to be of high relevance), particularly with respect to the concerns around his proposed accommodation; his treatment or supervision response (reported to be of high relevance), particularly with respect to anticipated difficulties in following plans for supervision and the respondent's belief that intervention is not necessary; and his lack of stress or coping strategies (reported to be of high relevance).

RSVP

Dr Petch described the RSVP as a tool designed to identify static and dynamic risks for future sexual offending, identify treatment needs and targets, and assist with developing suitable monitoring and supervision issues and parameters to address any risks identified.
Dr Petch noted that there were a number of risk factors identified by the RSVP associated with an increased risk of future violent offending that were also identified when using the HCR‑20 tool.
Dr Petch reported that he had identified seven risk factors using the RSVP that were not considered in the HCR-20, being the chronicity of the respondent's sexual violence between 1982 and 2005; the diversity of his sexual violence; physical and psychological coercion in his sexual violence; escalation on sexual violence over time; extreme minimisation of sexual violence; and attitudes that support or condone sexual violence.
Dr Petch also reported that the number of identified risk factors suggested that the future risks posed by the respondent may relate to sexual violence just as much as violent offending.

Risk formulation

Dr Petch described what he considered to be the respondent's risk of offending at pages 64 to 68 of his report, and among other things, in that part listed what Dr Petch considered to be multiple drivers for the respondent's offending. Noting that the respondent does not have any mental illness, Dr Petch recorded as follows:[64]
[64] Exhibit 3, book of materials vol 3, pages 836 - 837 (Psychiatric report of Dr E Petch dated 17 September 2024, pages 66 - 67).
Multiple drivers have been identified for his offending:
• substance misuse (normal for him to help with coping and stress);
• poor emotional regulation:
• impulsivity;
• poor decision making;
• lack of consequential thinking (especially when stressed, aroused, emotional or intoxicated);
• antisocial associates with no pro-social associates;
•poor self-management;
• difficulties in relationships;
• systemic factors in the environment with no stable accommodation;
• lack of community supports (other than an antisocial peer group);
• no structures or purpose to his day;
• lack of stable accommodation;
• lack of employment skills;
• poor life skills to cope in the community.
As to the list reproduced above, when asked how many of the factors did he consider the respondent had adequately addressed and were no longer risk factors if the respondent were to be released into the community on a supervision order, Dr Petch's evidence was that he thought that all 'are still drivers that are still posing problems'.[65]
[65] ts 94 (29 October 2024).
Dr Petch also recorded in his report that the respondent did not appear to make significant treatment gains from the programs and courses he had engaged in; that the respondent's use of alcohol and drugs had been the most serious barrier preventing his progress and maintaining his risk; that the respondent's inability to engage with previous periods of community supervision were a serious concern; that the respondent's accommodation and living situation had always been precarious with his peer and family group being unreliable and substance using; and that nothing within the risk assessments had pointed to anything other than the respondent posing a high risk of future serious violence or serious sexual violence.
In the course of his evidence Dr Petch was asked if in his opinion there were treatment options that he considered could address any of the factors in the list reproduced at [112] above, and responded as follows:[66]
I think that - that there is a very honourable history of people around the world trying to cure, if you like, antisocial personality disorder, psychopathy and high risk and it's a very difficult task. There are - there is evidence that the programs offered for some people are highly effective and do reduce risk, and that's why they are conducted, but, for others, they have a smaller degree of impact. Now, [the respondent] has been through a number of these programs before and he has offended after them. Now, that doesn't mean that if he wasn't to – if he was to go through such programs again, it would have zero impact. It may have an impact. The chances of that impact being significant are reduced because he hasn't succeeded in - in moving the - the needle, as it were, of risk substantially when he has previously done them, so I think treatment should be tried and there may be movement, but there hasn't been to date, so one would say that the prognosis for substantial change is fairly poor. I would - I would go on to argue that if in - in the circumstances where the - the State wishes to continue detention, either on an interim basis or on a continuing basis, it is beholden upon the State to do absolutely everything possible to reduce risk - to enhance the risk - to enhance the possibility of future improvement.

Risk scenarios

[66] ts 94 - 95 (29 October 2024).

Dr Petch outlined risk scenarios specific to the respondent at pages 68 to 70 of his report.
Dr Petch outlined what he considered to be the 'most easily foreseeable scenario' as including the following. That upon the respondent’s return to the community, for drugs and alcohol to rapidly become central and increasingly influential in his life, and then for him to exhaust funds for acquisition of drugs and alcohol quickly and turn to other means to ensure their acquisition. If and when a relationship develops, for it to lead to violence and possibly to sexual violence, which is likely to be extreme if he returns to using substances. If supports and services are not sufficient to meet all of the respondent's identified treatment needs, the respondent may struggle to adapt to the demands of living in the community and be relatively isolated. Dr Petch opined that without 'all [of] the support he needs, even if his accommodation is stable, this scenario will be borne out if [the respondent] does not have the necessary will or capacity to prevent an early return to substance misuse. If this occurs, decent [sic] into more violent or sexual offending, some very possibly serious will be likely to follow'.[67]
[67] Exhibit 3, book of materials vol 3, pages 838 ‑ 839 (Psychiatric report prepared by Dr E Petch dated 17 September 2024, pages 68 - 69).
Dr Petch outlined in his report an alternative and more optimistic scenario that he deemed far less likely to occur, which would be characterised by the respondent's engagement with an extensive community program, feeling supported, spending his days meaningfully and developing skills to negotiate future employment. Dr Petch opined he strongly suspected this scenario to be least likely of all to be realised.
Dr Petch outlined in his report what he considered to be the three 'worse' scenarios in the following terms:[68]
In my view the scenario in which his offending pattern is repeated, although given the risk assessment suggests this is likely, it is nevertheless rather pessimistic. However, I foresee three perhaps even worse scenarios. These are based on the possibility that the court determines that due to his level of risk, before he can leave prison on a supervision order, the programme work that he still needs (for example the violence program scheduled to take place in December 2024) will be required.
The third scenario is that either this program cannot be delivered or that he is deemed unsuitable for it and therefore he is deemed too high risk to leave prison in future.
The fourth scenario is that the programmes are delivered but are not effective for him, i.e. they do not reduce his risk sufficiently, and his risk to the community is still thought to remain too high for community safety to be assured, and he will have to remain in custody. I suspect this may be the case as this has occurred every time he has participated in a program thus far. Many of his risk factors are historical or cannot be changed as they are characterological traits that are not easily modifiable.
The fifth scenario is that because he has undertaken the required courses, the perception is that the risk has reduced sufficiently to attempt community supervision, but this occurs without the necessary support and monitoring package to meet all his needs (see above). If this occurred in my view his risk would be likely to rise again rapidly, because without support, his treatment gains would swiftly be lost and he would revert to his baseline level of (high) risk.
[68] Exhibit 3, book of materials vol 3, page 840 (Psychiatric report prepared by Dr E Petch dated 17 September 2024, page 70).
As to the potential risk to future intimate partners of the respondent, Dr Petch's evidence was as follows:[69]
I think any partner of [the respondent] in the future is at potential risk. He has a repeated pattern of offending against his partners and this is reflected in some of his discussions and comments during some of the programs that he has participated in when he has discussed this and the role of violence for him within those relationships. At times, he said that he thought it was his role to be violent. He thought it was perhaps he wouldn't be respected unless he was violent. At other times, he needs to be violent to assert dominance, control and, indeed, to be able to standup in the community. Particularly if he's being insulted in some way, he needs to defend himself in some way, then he will resort to violence, either as an instrumental tool or if he's perhaps intoxicated, then he loses control, as he - as he did in the last offence and the violence then becomes extreme and he can't remember what he has done afterwards. So I think there are various scenarios within a relationship where a partner is potentially extremely vulnerable.
[69] ts 98 (29 October 2024).
It was also Dr Petch's evidence that he considered the likelihood of the respondent relapsing into either drugs or alcohol if he was released into the community with no order in place to be about 95% within a short timeframe.[70]

Conclusion

[70] ts 98 (29 October 2024).

On the basis of his own clinical assessment of the respondent and consideration of the results of the risk assessment tools, it was Dr Petch's opinion that the respondent poses a high level of risk to the community of further serious violent or sexual offending. He opined that the propensity of the respondent to commit serious offences was underpinned by his psychopathy (permanent), antisocial personality disorder, and his substance misuse disorders (currently in remission in custody).
Dr Petch also opined that the respondent's propensity to offend was substantially driven by intoxication, and if that could be managed his overall risk would likely be moderated. However, he considered that the risk would still remain high. Dr Petch also recorded in his report the following:[71]
I am of the view that [the respondent] still lacks the capacity to control his behaviour and his substance misuse in the community, even if a full package of support is provided. He has little appreciation that this is needed to remain successfully in the community. His overall understanding and appreciation of the current situation is limited.
[71] Exhibit 3, book of materials vol 3, page 841 (Psychiatric report prepared by Dr E Petch dated 17 September 2024, page 71).
Dr Petch's evidence as to the likelihood of the respondent committing a further serious offence if released into the community without any order was 'very substantial indeed; it's a serious risk'.[72]
[72] ts 98 - 99 (29 October 2024).
Dr Petch's evidence as to the likelihood of the respondent committing a further serious offence if released into the community on a supervision order subject to the conditions proposed by the State was also '… very high indeed'. He gave evidence to the effect that he saw nothing that would allow him to reduce that evaluation from high to moderate.[73]
[73] ts 98 - 99 (29 October 2024).
If released into the community subject to supervision, Dr Petch among other things opined that in the absence of the respondent's engagement and cooperation, the management of his risk would become impossible.[74]

Recommendations

[74] ts 96 (29 October 2024).

In his report, Dr Petch outlined a number of treatment strategies, reproduced below:[75]
•Ongoing individual therapy with a clinical psychologist, particularly to address his history of trauma.
•Referral to an alcohol rehabilitation programme. This would only be of value of it was tailored to meet his cognitive capacities. This could be prison based, residential or community-based. It would need to cover relapse prevention, coping skills, anger management, stress management. It would be more likely to be completed if it was provided on a residential basis, but community‑based alternatives might available. It would need to create links between his substance misuse, early traumatic experiences and offending.
•A further violence prevention programme should also be planned for [the respondent] in the community or in custody, again ensuring it is tailored to his circumstances and level of understanding and abilities. In my view if he is required to remain in custody, if he is deemed suitable for it, it would be unreasonable for this program not to be delivered to him. If he is deemed not suitable for it, it may be possible for some aspects of the programme to be delivered on an individual basis. If he is able to return to the community, there may be community-based resources available for this to be delivered. Such a program might promote more pro-social attitudes and assist him in developing alternative strategies when he is facing difficulties in future.
[75] Exhibit 3, book of materials vol 3, page 844 (Psychiatric report prepared by Dr E Petch dated 17 September 2024, page 74).
When asked his opinion of the ability of, for example, individual counselling with a clinician from the Forensic Psychological Intervention Team to address the respondent's substance use issues, Dr Petch's evidence was as follows:[76]
I would say that it's greater than nought, but I'm not sure I would go much further than that. The interventions, thus far, have not really made a material impact. I think the key is going to be ensuring that the measures that are put in place in the community, encourage [the respondent] not to use as much as possible and placing him in a position of vulnerability, for example, where others are using or where there's peer pressure to use and also improving his mental state so that his internal drivers to use are minimised. I think that would all be helpful. [the respondent], when he can't cope, when he finds things distressing, tends to turn to alcohol at an early stage and - and drugs and substances. If his mood could be stabilised, and he has a greater array of coping techniques, anger management techniques and other techniques, to mean that his turning to alcohol becomes less likely in any of those circumstances, that's all for the good. So I think individual counselling needs to progress, needs to happen. Will it make a material impact? I think over time, possibly. Unfortunately, it can't be guaranteed because it hasn't worked in the past.
[76] ts 95 - 96 (29 October 2024).
Dr Petch was also asked his opinion as to whether at this point in time, the respondent would be substantially able to comply with the stated conditions if he was released on a supervision order. Dr Petch's evidence was as follows:[77]
I think he would find that enormously challenging. There are 64, I think, proposed conditions. I couldn't remember them all. And I think they're very onerous. I think some of them are extremely difficult. Some of them may even be setting him up to fail. For example, I think it's very important that one of the conditions is that he doesn't associate with people who are intoxicated. If there are people who are intoxicated or using substances in his vicinity, or in his accommodation, then asking him not to be present is going to be impossible for him. So, he has already breached. So, you know, for some of the conditions, for very good reasons that need to be there, it's going to be very difficult for him to comply. So, I think it's going to have to require a good deal of discretion on the part of the monitoring services and the senior custodial officer to use all their experience. And it's also very important to be able to rely on what [the respondent] is saying, in terms of how he's going and in terms of the conditions in which he finds himself, and the circumstances. And I think that's going to be very difficult to judge. So, I think it would be very difficult and very challenging to ensure that all those supervision requirements are adhered to.

Dr Galloghly's psychological report and evidence

[77] ts 96 - 97 (29 October 2024).

Dr Galloghly is a registered psychologist with clinical and forensic psychology endorsements through the Psychology Board of Australia. He holds a Doctorate in Clinical and Forensic Psychology and has had over 18 years of experience as a clinician. His qualifications were set out in his report.
Dr Galloghly interviewed the respondent by video link on two occasions, on 18 June 2024 and 19 June 2024, for a total of approximately five hours. Sources of information for the preparation of his assessment included communications with Mr Swadkins (a Senior Community Corrections Officer), Mr Becker (a Forensic Psychologist of the Forensic Psychological Intervention Team), Mr Carmichael, and Ms Goode (a Team Leader in the Community Offender Monitoring Unit); and the first two volumes of the book of materials.

History of community supervision and parole issues

Dr Galloghly's understanding was that the respondent had been subject to seven periods of community supervision (parole and community based orders) between 1993 to 2016, and that the respondent failed to complete two to three orders through breaches and reoffending. Dr Galloghly noted that documented concerns had included substance abuse, associations with negative peer influences, and living arrangements.

Mr Swadkins reported that a referral to Uniting WA was completed on 25 June 2024 to provide the respondent with additional accommodation options and rehabilitative support in the community, should the court consider release appropriate. He also reported that Uniting WA had advised that they would accept a referral to support the respondent before and after his release. It was however stipulated that once the initial assessment was completed, Uniting WA would require the respondent to be in a prison based in Perth or Bunbury for a minimum period of six months case management time prior to his release and the respondent's receipt of re-integration support from their service.[104]
[104] Exhibit 3, book of materials vol 3, page 876 (Community supervision assessment prepared by D Swadkins dated 15 October 2024, page 8).
While the respondent had supported the referral process, he advised Mr Swadkins that he was not willing to move to Bunbury Regional Prison, or a prison based in Perth as he felt 'settled in Albany [prison]'. As the respondent continued to maintain this position, in light of the stipulation described above, the respondent's referral to Uniting WA was ultimately withdrawn.[105]
[105] Exhibit 3, book of materials vol 3, page 877 (Community supervision assessment prepared by D Swadkins dated 15 October 2024, page 9).

Analysis and findings

As was acknowledged by Kiefel CJ, Keane and Steward JJ in Garlett v The State of Western Australia at [67], it is, no doubt, true to say that the evaluative task required of the court under s 7 and s 48 of the High Risk Serious Offenders Act is difficult. Section 7 requires balancing, on the one hand, the level of the risk identified (that is, the probability of the commission of the specified serious offence) together with the magnitude of the harm associated with that risk with, on the other hand, the burden that would be placed upon the liberty of the offender by a restriction order for an offence that they have not committed.[106]
[106] Garlett v The State of Western Australia [227] (Edelman J), citing Vella v Commissioner of Police (NSW) (2019) 269 CLR 219 [88]; Director of Public Prosecutions (WA) v Williams [63] - [65]; and Italiano v The State of Western Australia [4] and [46].
As noted above, at the hearing of the application counsel for the respondent did not seek to persuade the court that the respondent was not a high risk serious offender within the meaning of the High Risk Serious Offenders Act;[107] and I understood counsel for the respondent to further submit that if the court were to find the respondent to be a high risk serious offender, then given the absence of suitable accommodation, the making of a continuing detention order was not opposed.[108]
[107] As discussed at [8]; ts 87 - 88, 154 (29 October 2024).
[108] As discussed at [8]; ts 154 ‑ 156 (29 October 2024).
The position adopted by either party was not of course the end of the matter. It is well established, and I proceeded on the basis, that the responsibility for deciding whether or not the offender is a high risk serious offender (as defined) and, if so, what order should be made is that of the judge alone.[109]

The risk that, if the offender were not be made subject to a restriction order, the offender would commit a serious offence

[109] Director of Public Prosecutions (WA) v GTR [62].

I proceeded on the basis that in considering whether the respondent is a high risk serious offender as required by s 7(1) of the High Risk Serious Offenders Act, regard was required to be had to the risk that, if the respondent were not subject to a restriction order, he would commit a serious offence: s 7(3)(h). This called for a conclusion or findings based on the matters listed in s 7(3)(a) ‑ (g) and (j).
On acceptable and cogent evidence, I found that the State had established to a high degree of probability that there was a high risk that upon release, the respondent would commit a serious offence against a female involving violence, which violence may include sexual violence, while in a highly agitated and intoxicated state, with the potential for significant physical harm through sexual penetration, physical violence and restraint, and deprivation of liberty.
In so finding, I particularly had regard to the following:
(a)the respondent's significant history of violent offending against women, which has included sexual offending. The respondent's criminal history includes 12 serious offences (as defined in the High Risk Serious Offenders Act), which include two counts of carnal knowledge with a girl under 16; seven counts of aggravated sexual penetration without consent; two counts of aggravated indecent assault; and one count of doing grievous bodily harm to another with intent to do grievous bodily harm;
(b)the respondent continued to offend despite having been convicted and having served lengthy sentences for similar offences. The imposition of custodial sentences did not serve to deter further offending;
(c)the respondent has a propensity to act violently towards women, which includes the propensity to engage in serious sexual violence towards women;
(d)there has been a pattern to the respondent's offending behaviour - he has repeatedly been violent towards women, which violence has included brutal sexual violence where he has sought to overpower through physical violence and threats;
(e)the respondent has significant unmet treatment needs, which includes drug and alcohol use. It appears that drug or alcohol use was involved in all of the respondent's previous offending, and I accepted that unless his abuse of the same could be managed, the respondent's propensity to commit offences against women involving violence, including sexual violence, was likely to be expressed in future offending;
(f)the respondent's continued minimisation of his use of violence and sexual offending, and attitudes that support or condone sexual violence have been long held and remain present;
(g)as opined by Dr Petch, the drivers for the respondent's offending have included poor emotional regulation, impulsivity, poor decision making, lack of consequential thinking, and poor self‑management. Limited treatment gains have been achieved to date despite the respondent's participation in a number of programs;
(h)the respondent's lack of stable accommodation - which had always been precarious and in the context of previous supervision was considered to have been a contributing factor to his ability and motivation to comply with conditions of the order;
(i)the lack of prosocial peer and family support, which had in the past been unreliable and substance using; and
(j)the reasoned opinions expressed by Dr Petch and Dr Galloghly as to the risk of recidivism, which opinions I considered to be persuasive but not determinative.
While Dr Petch's evidence was that he was sure that the respondent wants to be rehabilitated and in the community,[110] I did not consider the respondent's desire sufficiently mitigated the risk factors and evidence particularised above.

Is the risk that the respondent will commit a serious offence unacceptable?

[110] ts 89 (29 October 2024).

I proceeded on the basis that the court was not free to characterise as 'unacceptable' any level of risk which it should choose. Rather, an evaluation of the level of risk according to the objects of the High Risk Serious Offenders Act was required, informed by the need to ensure adequate protection for the community.[111]
[111] The State of Western Australia v Garlett [139], cited with approval in The State of Western Australia v D'Rozario [No 3] [22]. See also Assistant Commissioner Condon v Pompano Pty Ltd [23], cited in The State of Western Australia v Garlett [126].
Having regard to the evidence, I was satisfied that the respondent posed a risk that was 'unacceptable'. I weighed in the balance my findings as to the matters prescribed in s 7(3)(a) - (g) and (j). I particularly had regard to the nature of the risk posed to the community by the respondent given the gravity and nature of the serious offence the respondent was likely to commit; the likelihood of the respondent committing a serious offence; and the consequences to the respondent of a finding being made that an unacceptable risk exists, which are discussed in more detail below.

The nature of the risk posed to the community

In considering whether the respondent posed a risk that was 'unacceptable', I considered the gravity and nature of the serious offence the respondent was likely to commit and the risk to the community that type of offending posed.
Among other things, I was informed by the 'risk scenarios' identified and discussed by Dr Petch (see [117] to [121] above); and the 'reoffending scenarios' identified and discussed by Dr Galloghly (see [160] above).
Having regard to all of the evidence, particularly to the respondent's offending history, I considered that the nature of the serious offence that the respondent is likely to commit to be grave as:
(a)the respondent is likely to be violent towards women (which may include sexual violence), seeking to overpower the victim through physical violence and threats, while in a highly agitated and intoxicated state; and
(b)there is a risk of death through violence, serious physical injury through the application of severe and extensive blunt force, significant physical harm through sexual penetration, physical restraint (for example, through strangulation), the deprivation of liberty, and considerable fear and trauma for victims, such that the risk to the community is great.
I consider the most appropriate characterisation of the nature of the risk posed to the community by the respondent to be as set out in [217] above.

The likelihood of the respondent offending

In considering whether the respondent posed a risk that was 'unacceptable', I turned to consider the likelihood of the respondent offending. Having given careful consideration to all of the evidence, I considered the likelihood of the respondent committing an offence of the nature described at [217] above to be high. I was satisfied of the same having weighed all of the evidence, including the following.
First, the respondent has a long history of violent offending against women, including sexual offending.
Secondly, that the respondent has continued to offend despite having been convicted and having served lengthy sentences for similar offences. The imposition of custodial sentences did not serve to deter him from further offending.
Thirdly, as was acknowledged by the respondent, all of his serious offences were committed when he was intoxicated and had mixed with the wrong people, and the respondent's unmet treatment needs includes drug and alcohol use. As recorded above, Dr Petch opined that drug and alcohol use has been the most serious barrier preventing the respondent's progress and maintaining his risk.[112]
[112] Exhibit 3, book of materials vol 3, page 837 (Psychiatric report prepared by Dr E Petch dated 17 September 2024, page 67).
Fourthly, the respondent has a propensity to act violently towards women, which includes the propensity to commit serious sexual violence towards women. Further, there is a clear pattern to the respondent's offending behaviour - he has repeatedly been violent towards women, which violence has included brutal sexual violence where he has sought to overpower through physical violence and threats.
Fifthly, as noted above, it appeared that drug or alcohol use was involved in all of the respondent's previous offending, and that he has unmet treatment needs in relation to his misuse of drugs and alcohol. I accepted that unless his abuse of the same could be managed, the respondent's propensity to commit offences against women involving violence, including sexual violence, was likely to be expressed in future offending.
Sixthly, the respondent's continued minimisation of his violent and sexual offending, and attitudes that support or condone sexual violence have been long held and remain present.
Seventhly, I accepted that the drivers for the respondent's offending include poor emotional regulation, impulsivity, poor decision making, lack of consequential thinking, and poor self‑management, and that limited treatment gains have been achieved to date despite the respondent's participation in a number of programs.
Eighthly, that antisocial lifestyle instability factors, particularly the lack of stable accommodation, and also the lack of employment and prosocial peers, remain unaddressed. It was the State's position that no suitable accommodation option had been identified for the respondent, and that his risk of committing further serious offences was likely to increase with a lack of stable housing.[113] I did not understand counsel for the respondent to contend otherwise.[114]
[113] ts 86, 151 - 152 (29 October 2024); submissions filed on behalf of the State, par 121.
[114] ts 154 (29 October 2024).
Finally, although not determinative, I weighed the opinions of Dr Petch and Dr Galloghly in the balance when I evaluated the likelihood of the respondent reoffending. The experts were consistent in their assessment that there was a high likelihood of the respondent reoffending by the commission of a serious violent or sexual offence. I accepted their evidence, which was unchallenged.

The consequences to the respondent of making a finding that an unacceptable risk exists

I was cognisant that upon the making of a restriction order, serious consequences would be visited upon the respondent.
First, the respondent reported to Dr Galloghly that he was confident that he could remain abstinent from alcohol and other drugs apart from cannabis if given a community order. He noted that he was willing to engage in counselling to support abstinence. The making of a restriction order would be a significant impost on the respondent's right to be at liberty. The respondent's desire for the interim detention order to be revoked and to be released without a restriction order being made was made plain in the hearing, as was the respondent's frustration at the prospect of being constrained by a restriction order in circumstances where he had completed the term of his most recent custodial sentence.
Secondly, the respondent had expressed a desire to reside in Katanning or Albany. If he were to be made subject to a restriction order, there would likely be real constraints as to the availability of group intervention programs if he were to remain in detention in Albany prison, and to the accommodation available to the respondent in the Katanning and Albany regions if he were released subject to a supervision order.
Thirdly, the State pressed for the making of a restriction order and for the respondent to become subject to a continuing detention order, or in the alternative, that he be made subject to a supervision order. The making of a continuing detention order, or a supervision order in the form promoted by the State in the alternative, were outcomes more onerous in their effect and terms than the post-sentence supervision order.[115]

Disposition

[115] ts 87 (29 October 2024).

In determining whether the risk posed by the respondent remained 'unacceptable', I weighed in the balance the gravity and nature of the risk posed by the respondent and the likelihood of that risk materialising on the one hand, and the serious consequences for the respondent on the other. I did so having regard to the need to ensure adequate protection for the community.
Weighing all of these matters in the balance and the need to ensure adequate protection for the community, I was satisfied to a high degree of probability that the respondent posed a risk that was 'unacceptable'.

If the risk is found to be unacceptable, is it necessary to make a restriction order to ensure adequate community protection against a risk that the offender will commit a serious offence?

The legislative scheme requires that regard be had to the need to protect members of the community from the risk: s 7(3)(i). Again, this called for a conclusion or findings based on the matters listed in s 7(3)(a) ‑ (g) and (j).
I was cognisant that a finding of unacceptable risk is not determinative of a restriction order application, and the court might find that it is not necessary to make a restriction order to adequately protect the community notwithstanding that it has found the risk of future offending to be unacceptable.[116] However, I considered it to be necessary in this case to make a restriction order to ensure adequate community protection against a risk that the respondent will commit a serious offence.
[116] The State of Western Australia v Garlett [136(d)], as noted by Quinlan CJ in The State of Western Australia v D'Rozario [No 3] [21].
In so concluding, I considered that the gravity and nature of the risk posed to the community by the respondent was such that it supported a finding of 'necessity'. This was informed by my characterisation of the nature and gravity of the risk posed to the community given the type of serious offence that the respondent is likely to commit and the likelihood of the respondent committing a serious offence, discussed at [215] - [228] above.
Further, in this case, I was cognisant that if a restriction order was not made, the respondent would be released subject to the post-sentence supervision order made on 19 April 2024, and would remain subject to that order until 25 May 2025.[117] However, when regard was had to the obligations imposed on the respondent subject to the post-sentence supervision order and the duration of the order, I did not consider post‑sentence supervision order to provide adequate protection of the community against the unacceptable risk that the offender would commit a serious offence, such that a restriction order would not be 'necessary'.
[117] Exhibit 2, book of materials vol 2, pages 761 - 764 (Post-sentence supervision order dated 19 April 2024, pages 1 - 4).
Having regard to all matters specified in s 7(3) of the High Risk Serious Offenders Act to which I referred to in these reasons, and notwithstanding that the respondent had already been punished for the offences he had committed, I was satisfied to a high degree of probability that the risk of the respondent committing a serious offence of the type I identified was unacceptable, and that it was necessary to make a continuing detention order or a supervision order in relation to the respondent to ensure adequate protection of the community against the risk. That is, I found that if the respondent was not made subject to a restriction order, the community would not be adequately protected against the unacceptable risk that he will commit a serious offence. It follows that I found the respondent to be a high risk serious offender and that it was necessary to make a restriction order.

Continuing detention order or supervision order?

Having decided that the respondent was a high risk serious offender, I proceeded on the basis that I was required to make either a continuing detention order or a supervision order in relation to him.[118] I was cognisant that having made that finding, there was no residual discretion to decline to make a restriction order.[119] I also proceeded on the basis that I was required to choose the order that was the least invasive to the respondent's liberty while ensuring an adequate degree of protection of the community.
[118] High Risk Serious Offenders Act s 48(1), as noted in Woods v The Director of Public Prosecutions (WA) (2008) 38 WAR 217.
[119] Garlett v The State of Western Australia [72].
In considering whether a supervision order would adequately protect the community, it was necessary to take into account any conditions which could be placed on a supervision order so as to ensure adequate protection of the community, the respondent's rehabilitation, care and treatment, and to ensure adequate protection of the complainants of offences committed by him.[120] I was also required to be satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions of the order as required under s 29 of the High Risk Serious Offenders Act. This required me to be satisfied that the respondent would comply with the standard conditions in a manner and to an extent that would ensure the adequate protection of the community from the unacceptable risk of the respondent committing a serious offence.[121] The standard conditions are those contained in s 30(2) of the High Risk Serious Offenders Act and include reporting, supervision and complying with any reasonable direction, electronic monitoring, and not committing a serious offence during the period of the order. The onus was on the respondent to satisfy the court that he would so comply.[122]
[120] High Risk Serious Offenders Act s 30(5).
[121] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [52]; The State of Western Australia v West [No 6] [29]; The State of Western Australia v ZSJ [56] ‑ [58]; The State of Western Australia v Patrick [No 4] [2020] WASC 48 [109] - [111]; and The State of Western Australia v MAM [165].
[122] High Risk Serious Offenders Act s 29(1) and (2).

In the disposition of this part of the application, I had regard to the following matters (listed in no fixed order).
First, the absence of suitable, stable accommodation. In this regard, I adopted the observation made by Hall J in The State of Western Australia v Corbett [No 5] [2017] WASC 115 at [80]:
Accommodation for a person on a supervision order is not simply a place to live. The location and type of accommodation are factors that are integral to any proper assessment of the risk of reoffending. The absence of suitable accommodation makes it impossible to be satisfied that the supervision order is presently a viable option.
Secondly, it was not submitted on behalf of the respondent that he had discharged his onus, given the absence of suitable accommodation.
Thirdly, the respondent's mixed history of compliance while subject to community based orders and while released on parole.
Fourthly, the respondent's unmet treatment needs, which are significant. He had not demonstrated sufficient gains in treatment, self‑management or life skills for the court to be satisfied that the respondent had the capacity to self‑regulate so as to comply with the conditions.
Fifthly, I did not consider that the conditions were sufficient to ensure that the respondent would substantially comply, and there was a proper basis to be concerned that any relapse into alcohol or illicit substance misuse would substantially increase the risk of violent offending.
Sixthly, I considered the following opinion expressed by Dr Petch in his report to be persuasive:[123]
[123] Exhibit 3, book of materials vol 3, page 842 (Psychiatric report of Dr E Petch dated 17 September 2024, page 72).
In my view at the current time, I think it would be very difficult to adequately manage his risk in the community even if appropriate supervision conditions are put in place and interventions made to reduce the risk. I do not think that even if those risk factors which are relevant and modifiable as detailed in the table above are thus modified through interventions and support, that this will modify the risk sufficiently to bring it down to what the court may consider to be an acceptable level. This is because there are many unmodifiable risk factors which have also been identified as relevant. These will remain whatever interventions are put in place. They are:
• Violence
• Other antisocial behaviour
• Relationships
• Employment
• Substance misuse
• Personality disorder (anti-social personality disorder and psychopathy)
• Violent attitudes
• Treatment or supervision response
• Chronicity of sexual violence
• Physical coercion in sexual violence
• Psychological coercion in sexual violence
• Extreme minimisation or denial of sexual violence
• Attitudes that support or condone sexual violence.
Even if I was to put aside Dr Petch's finding of personality disorder, I considered the other risk factors in combination were significant.
Dr Galloghly had expressed a more optimistic view than Dr Petch as to whether the respondent would substantially comply with the standard conditions of a supervision order, if made. That said, I considered there was significant common ground as between the experts, and Dr Galloghly had identified many of the same risk factors as were identified by Dr Petch.
In any event, in this case, the lack of suitable, stable accommodation was an insurmountable hurdle for the respondent. The absence of suitable, stable accommodation made it impossible to be satisfied that the supervision order was a viable option. The risk to the community of the respondent committing a serious offence, and the protection of the community could not be assured by the respondent's release on a supervision order, and I accepted the State's submission that at this point in time, the only appropriate order was a continuing detention order.
Finally, for completeness I note as follows.
As is noted above, even if the court was satisfied that the respondent would substantially comply with the standard conditions of a supervision order, the court would be required to make a continuing detention order if it was not satisfied that conditional release under a supervision order would ensure an adequate degree of protection to the community. That is, in deciding whether to make a continuing detention order or to make a supervision order, the paramount consideration was the need to ensure adequate protection of the community.[124]
[124] High Risk Serious Offenders Act s 48(2).
For the reasons set out above, I was not satisfied that the respondent would substantially comply with the standard conditions of a supervision order. Had I been satisfied, when appropriate weight was given to first, the nature of the risk posed to the community by the respondent given the gravity and nature of the serious offence the respondent was likely to commit; and secondly, to the likelihood of the respondent committing a serious offence, on the evidence presented, I would not have been satisfied that a supervision order with the additional proposed conditions would have ensured an adequate degree of protection to the community.

Conclusion and recommendations

For these reasons I was satisfied, by acceptable and cogent evidence and to a high degree of probability, that it was necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against the unacceptable risk that he will commit a serious offence. Having regard to all of the evidence and to my findings, I was satisfied that the respondent was a high risk serious offender under the High Risk Serious Offenders Act.
Further, I determined that the risk of reoffending could not be adequately managed in the community with the imposition of a supervision order. Accordingly, I made a continuing detention order, with effect from 29 October 2024.
Finally, I note that the respondent ought to be encouraged to continue to participate in individual counselling; and in conjunction be referred to participate in a Violence Prevention program so as to maximise the opportunity for improvement, as was suggested by Dr Petch.[125] In addition, intervention should also seek to address his misuse of alcohol and drugs.
[125] ts 100, 102 - 103, 111 - 112 (29 October 2024); exhibit 3, book of materials vol 3, page 844 (Psychiatric report prepared by Dr E Petch dated 17 September 2024, page 74).
Finally, attempts should be made prior to the first review of the continuing detention order to identify: potential pro‑social community opportunities; whether there might be an appropriate employment opportunity for the respondent; and a viable accommodation option for the respondent so that if he is found to be suitable for release on a supervision order, the absence of accommodation will not prevent this from occurring.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KO
Associate to the Judge
20 NOVEMBER 2024