The State of Western Australia v Roffey [No 3]
[2024] WASC 368
•8 OCTOBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- ROFFEY [No 3] [2024] WASC 368
CORAM: STRK J
HEARD: 7 OCTOBER 2024
DELIVERED : 7 OCTOBER 2024
PUBLISHED : 8 OCTOBER 2024
FILE NO/S: SO 11 of 2023
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
KENNETH MARTIN JAMES ROFFEY
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 (WA) - Contravention proceedings - Whether detention order should be made pending determination of pending contravention proceedings
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Result:
Contravention application programmed to hearing
Respondent to be detained in custody pursuant to s 56(2)(b)
Category: B
Representation:
Counsel:
| Applicant | : | DS McDonnell |
| Respondent | : | T Hager |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Geoffrey Miller Chambers |
Cases referred to in decision:
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
The State of Western Australia v MAR [No 4] [2023] WASC 271
The State of Western Australia v Roffey [No 2] [2024] WASC 220
The State of Western Australia v Slater [No 2] [2021] WASC 465
STRK J:
This judgment was delivered extemporaneously on 7 October 2024, and has been edited from transcript to include full references and citations, and to correct infelicities of language.
Introduction
On 10 June 2024 the State's application for a restriction order to be made in relation to the respondent pursuant to s 48(1) of the High Risk Serious Offenders Act 2020 (WA) was heard.
On the same day, the respondent was found to be a high risk serious offender and a restriction order was made, specifically a supervision order, in respect of the respondent pursuant to s 48(1)(b) of the High Risk Serious Offenders Act: TheState of Western Australia v Roffey[No 2][2024] WASC 220. The respondent was released on the supervision order on 1 July 2024.
Since the respondent's release on the supervision order he has been charged with six offences of contravening a requirement of the order contrary to s 80(1) of the High Risk Serious Offenders Act (described in these reasons as the contraventions), and has been convicted of the offences on his own plea of guilty. The respondent is currently in custody remanded to appear in the Magistrates Court on 9 October 2024 to be sentenced with respect to two of the contraventions.
Since being released on a supervision order, the respondent has spent two periods in custody. First, from 11 August 2024 to 30 August 2024 (a period of 20 days in remand); and secondly, from 10 September 2024 to date (a period of 35 days in remand).
In light of the contraventions, on 26 September 2024 the State made an application pursuant to s 53(1)(b) and s 53(2) of the High Risk Serious Offenders Act. By the application the State seeks orders under s 55 of the High Risk Serious Offenders Act, and also for an order under s 56(2)(b) of the High Risk Serious Offenders Act, that the respondent be detained in custody while the contravention proceedings remain pending.
The State filed and today read two affidavits. The first was an affidavit affirmed by Joseph Marc Lloyd on 26 September 2024, and the second an affidavit affirmed by Nicole Bennetts on 25 September 2024. Mr Lloyd is a solicitor employed by the State Solicitor's Office, holding the position of Assistant State Solicitor. Ms Bennetts is a Senior Community Corrections Officer employed by the Department of Justice, Corrective Services Division, within the Community Offender Monitoring Unit (COMU).
The contravention application has today come before me for directions. The State seeks programming orders in the terms proposed in its minute of proposed programming orders dated 4 October 2024 (programming orders), which are reproduced below:
1. The application for an order pursuant to section 55 of High Risk Serious Offenders Act 2020 be heard on [to be inserted].
2. The Respondent undergo an examination by a qualified expert, namely Dr Peter Wynn Owen, psychiatrist, for the purposes of preparing a report as required by section 74 of the High Risk Serious Offenders Act 2020 that is to be used on the hearing of the contravention application.
3. The expert named in order 2 is not to include in his report information or opinions about the Respondent based on a communication with a third person unless details of that communication sufficient to identify the person with whom the communication was held, its date and a summary of its content are included in the expert's report.
4. The report of the expert be provided to the Applicant at least 28 days prior to the hearing of the contravention application.
5. Any report authored by the Department of Justice, including any Performance Report or Treatment Progress Report, be provided to the Applicant at least 21 days prior to the date of the hearing of the contravention application.
6. The expert named in order 2 liaise with the Department of Justice as to a Management Plan (if appropriate) for the Respondent to be supervised in the community.
7. Pursuant to section 122 of the Criminal Investigation Act 2006, the expert named in order 2 may be supplied with and may view any audio-visual recordings of interviews with the Respondent, or transcripts of the same, for the purpose of preparing his report.
8. The Respondent be detained in custody until the final determination of the application, pursuant to section 56(2)(b) of the High Risk Serious Offenders Act 2020.
9. There be liberty to the parties to apply generally.
The respondent did not oppose the making of the programming orders. I will make the programming orders in the form promoted. Despite the respondent's non-opposition to the order that he be detained in custody until the final determination of the contravention application pursuant to s 56(2)(b) of the High Risk Serious Offenders Act, it is necessary for me to state my reasons for deciding that it is appropriate to make such an order. These are my reasons.
Evidence before the court
I note that the State read the affidavits affirmed by Mr Lloyd and Ms Bennetts, without objection from the respondent. The respondent did not require either Mr Lloyd or Ms Bennetts to submit themselves to cross-examination on the content of their respective affidavits.
The respondent's offending history
The respondent was born on 11 April 1985. He is therefore now 39 years of age. He has spent about 20 years, that is, most of his adult life, incarcerated.
As was noted in TheState of Western Australia v Roffey [No 2], at the time of the hearing of the State's application for a restriction order, the respondent had an extensive criminal history which then included at least 49 serious offences, comprised of 24 counts of armed robbery in company; two counts of armed robbery; two counts of aggravated armed robbery; three counts of attempted armed robbery; one count of attempted robbery; 13 counts of deprivation of liberty; three counts of criminal damage by fire; and one count of an unlawful act with intent to harm (endangering life, health or safety of any person).[1]
[1] The State of Western Australia v Roffey [No 2] [2].
The respondent then had convictions recorded under the Criminal Code, the Road Traffic Act 1974 (WA), the Weapons Act 1999 (WA), and the Firearms Act 1973 (WA). Offences were committed while armed from time to time with knives, a baseball bat, a machete, a replica handgun, a brick, a metal pipe, among other things.[2]
[2] The State of Western Australia v Roffey [No 2] [70].
Furthermore, while a prisoner at Casuarina in 2006, the respondent followed another male prisoner into his cell and stabbed him a number of times in the arm, and three times in the body, the abdomen and the right front of his torso with a wooden weapon with a metal sharp end (a shiv, being a knife-like weapon). The victim required hospitalisation, however, was returned to prison soon after. The victim was a man who had previously been charged but acquitted of a sexual assault or sexual offence committed against the respondent's sister. Murray J described it as a 'revenge attack'.[3]
[3] The State of Western Australia v Roffey [No 2] [71].
Before being released on a supervision order, the respondent had been serving an aggregate term of imprisonment of four years and one month, comprised of the following:
(a) three years and six months' imprisonment imposed in the Perth District Court on 12 December 2022 for one count of aggravated armed robbery contrary to s 392(c) and (d) of the Criminal Code; and
(b) seven months' imprisonment imposed in the Perth Magistrates Court on 6 January 2023 comprised of:
(i) seven months' imprisonment for two counts of aggravated burglary and commit contrary to s 401(2)(ba) of the Criminal Code (to be served concurrently);
(ii) two months' imprisonment for one count of stealing a motor vehicle contrary to s 378A of the Criminal Code (to be served concurrently); and
(iii) no sentence for two counts of stealing pursuant to s 378 of the Criminal Code.
The respondent's last sentence ended on 27 June 2024. The respondent was serving this term of imprisonment at the time that the State made the restriction order application.
The restriction order hearing and decision
At the hearing of the restriction order 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 respectfully submitted that the risk identified was able to be managed within the community by placing the respondent on a supervision order pursuant to s 48(1)(b) of the High Risk Serious Offenders Act.[4]
[4] The State of Western Australia v Roffey [No 2] [9].
The respondent was represented by counsel at the hearing of the restriction order 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 the making of a restriction order was not opposed. Counsel for the respondent further submitted that if the court were to find the respondent to be a high risk serious offender, then the appropriate outcome ought be the making of a supervision order under s 48(1)(b) of the High Risk Serious Offenders Act, and not a continuing detention order.[5]
[5] The State of Western Australia v Roffey [No 2] [10].
In determining that application, the responsibility for deciding whether or not the offender was a high risk serious offender (formerly a serious danger to the community) as defined, and if so what order should be made, was that of the judge alone.[6] For the reasons published, 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 supervision for five years, and required to comply with conditions in addition to those required by the High Risk Serious Offenders Act, imposed so as to guard against the risk that the respondent poses to the community. A supervision order was made which incorporated the conditions reproduced at sch A to these reasons. The respondent's approved address has been redacted.
[6] 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), cited in The State of Western Australia v Roffey [No 2] [11].
The expert reports and evidence given for the purposes of the restriction order application
Dr Peter Wynn Owen and Dr Tara Yewers prepared reports under s 42(2)(a) of the High Risk Serious Offenders Act for the restriction order application. Each examined the respondent and prepared an independent report as required by s 74(1) of the High Risk Serious Offenders Act. Mr Lloyd annexed to his affidavit the psychiatric report of Dr Wynn Owen dated 16 April 2024, and the report of counselling psychologist Dr Yewers dated 21 March 2024.
As was noted at [122] of my published reasons, as to the respondent's risk of violence, Dr Wynn Owen opined as follows:
122.[The respondent's] current violence risk is related to antisocial personality with associated antisocial, anti-authoritarian and violence condoning attitudes in the context of a significant past history of serious instrumental violence. Antisocial behaviours and attitudes and substance use have been present throughout [the respondent's] terms of imprisonment although his prison behaviour has moderated noticeably over the last 12 months. Violence risk will be increased if there is negative affect/emotion or through contact with antisocial peers on release, these are high risk situations for substance abuse, which will also elevate risk of violent offending.
Dr Wynn Owen also outlined the following risk scenarios specific to the respondent:[7]
124. Violent behaviour is most likely to be associated with unemployment and financial stress coupled with return to substance use and with negative influence from antisocial peers resulting in a return to criminal activity. Violence being used instrumentally to achieve criminal goals such as the theft of money and/or goods.
125. The violence is highly likely to involve intimidation, threats and use of weapons. Significant psychological harm to victims may be long lasting, there may also be some degree of physical harm, particularly if victims are perceived to be uncooperative with demands.
126. An alternative scenario is violence to avenge actions taken against those close to [the respondent]. In this case there is likely to be a greater degree of planning, the behaviour will not be contingent on substance abuse and there is likely to be very significant physical harm with long term consequences in addition to the immediate and long term psychological harm that will result from a serious assault.
[7] As was noted in The State of Western Australia v Roffey [No 2] [123].
As was recorded at [124] of the published reasons, Dr Wynn Owen concluded that in his opinion, there was a high likelihood of future violent behaviours, and further opined that:
135. A high level of intervention will be required to avoid future violent behaviours, this will rely on external constraint, particularly when first released. In addition to violence preventive strategies post release support should include support to find and maintain accommodation, assistance seeking and gaining employment and assistance to engage with and complete required treatment will need to be pro-active and assertive if change is to be achieved.
136. To avoid the risk of general violence frequent supervision will be necessary, supervision will also reduce the likelihood of serious violence. Level of violence risk should be reassessed on at least a 6 monthly basis for the first 24 months post release, to monitor progress/variation in dynamic risks and to review the effect of personal circumstances at that time on risk.
137.Monitoring for drug and alcohol use will be critical component of monitoring to address violence risk.
In her expert report, Dr Yewers detailed likely risk scenarios applicable to the respondent as follows (as was reproduced at [158] of the published reasons):
175. The most likely risk scenario for [the respondent] to commit a future violent offence is that he relapses to substance use and/or he resumes associations with antisocial peers. He might reoffend by committing a robbery for monetary gain, targeting stores or small business. Based on his history, he is most likely to commit a robbery in company. [The respondent] may have a weapon in his possession, which he would use to threaten or intimidate the victim(s) in order to overcome resistance and ensure that he achieves his desired outcome. The weapons that he has historically carried have a high potential for serious injury should he assault someone using it. If he is under the influence of drugs, he is more likely to be agitated, impulsive, and reactive. Therefore, his decision making will be impaired, and his behaviour disinhibited, increasing the likelihood of recklessness and disregard for others.
176. Another possible risk scenario for [the respondent] is that he physically assaults someone to avenge a misdeed perpetrated against a family member (or possibly a friend). Such an offence is likely to be motivated by hostility and anger, and supported by a belief that his actions are justified. [The respondent] may also utilise a weapon in this scenario and might use it to cause physical injury (rather than to gain compliance).
177. The prospect of the above scenarios eventuating is likely to decrease in the context of a prosocial way of life that includes: employment, meaningful and goal directed past times, abstinence from alcohol and illicit drug use, non-criminal peers, and stable family relationships. Persisting antisocial attitudes and distorted thinking that justifies violence will increase likelihood, as will the absence of any of the aforementioned protective factors.
The contraventions
It is not necessary for me to recite in detail the facts of the contravention offences. They are revealed by documents annexed to Mr Lloyd's affidavit.
For present purposes it suffices for me to set out the following brief details of the contravention offences in context:
1. On 19 July 2024 the respondent was convicted on his plea of guilty of one offence of contravening a requirement of the supervision order by providing a positive urine sample for heroin on 12 July 2024, and of one offence of using a prohibited drug, namely heroin (PE 40402 - 40403/2024). The respondent committed the offences on 12 and 15 July 2024, and was fined for each of the offences.
2. On 30 August 2024 the respondent was convicted on his plea of guilty of one offence of wilfully and unlawfully damaging property, being an electronic monitoring device the property of the Department of Justice, and of one offence of contravening a requirement of the supervision order by removing his electronic monitoring device (PE 44702 - 44703/2024). The respondent committed the offences on 9 August 2024, and was given a global fine for the offences.
3. On 30 August 2024 the respondent was convicted on his plea of guilty of one offence of contravening a requirement of the supervision order by leaving his address during curfew, and of one offence of stealing clothing to the value of $1,000, the property of Rebel Sport, Myaree (PE 47004 - 47005/2024). The respondent committed the offences on 1 and 9 August 2024, respectively, and was given a global fine for the offences and the offences for charges (PE 44702 - 44703/2024).
4. On 5 September 2024 the respondent was convicted on his plea of guilty of one offence of contravening a requirement of the supervision order by having visitors to his accommodation (PE 49045/2024). The respondent committed the offence on 1 September 2024, and was fined for the offence, which was suspended for 6 months.
5. On 10 September 2024 the respondent was charged with one offence of contravening a requirement of the supervision order by testing positive to amphetamine (PE 50287/2024), and with one offence of contravening a requirement of the supervision order by breaching his curfew condition (PE 50289/2024). The respondent committed the offences on 4 September 2024, has pleaded guilty to the same, and has been remanded in custody to be sentenced on 9 September 2024.
I understand from Mr Lloyd's affidavit at par 38 that the State intends to file particulars of the contravention charges before the final hearing of the contravention application, but at this stage, the State anticipates that the particulars will mirror the statements of material facts for each of the contravention charges annexed to Mr Lloyd's affidavit.[8] In determining whether to make an order under s 56(2)(b) of the High Risk Serious Offenders Act, I had regard to the statements of material facts.
[8] Affidavit of JM Lloyd, annexures 'E', 'I', 'M', 'O' and 'S'.
In addition to the offences of contravening a requirement of the order contrary to s 80(1) of the High Risk Offenders Act, the respondent has also, while subject to the supervision order, been charged with, among other offences, use of a prohibited drug,[9] criminal damage or destruction of property (the property being the electronic monitoring device attached to his ankle),[10] and stealing.[11] In her affidavit Ms Bennetts at par 11 has described further contraventions of the supervision order by the respondent that resulted in alternative breach actions (and not formal charges). I also had regard to the same.
[9] Affidavit of JM Lloyd, annexure 'D'.
[10] Affidavit of JM Lloyd, annexure 'G'.
[11] Affidavit of JM Lloyd, annexure 'L'.
Affidavit evidence of Ms Bennetts
Ms Bennetts deposed that the respondent has been managed by COMU since he was released subject to the supervision order, and that she has been the respondent's case manager since 1 July 2024.
Among other things, Ms Bennetts deposed to certain behaviours of the respondent between 1 July 2024 and 5 September 2024 which she described as being concerning. The behaviours included substance use in the community; relationship instability and association with anti-social peers in the community; and accommodation instability and subsequent withdrawal of accommodation support.
Use of illicit substances
As to substance use in the community, Ms Bennetts deposed to the respondent having relapsed to illicit substance use within approximately two to three weeks of his release.
Ms Bennetts also deposed that the respondent had reduced his methadone dose before his release, despite it having been recommended that he take a 60ml methadone dose. Further, upon his release, the respondent took a reduced daily dosage.
Despite the respondent having informed COMU that he had increased his methadone dose back to the recommended 60ml, the pharmacy which dispensed the respondents' methadone on 9 July 2024 confirmed that his dose at that time remained at 52.5ml. Ms Bennetts also deposed that after the respondent relapsed to illicit substance abuse, he spoke about increasing his methadone dose back to 60ml. However, on 6 August 2024 the respondent informed Ms Bennetts that he did not increase the dose and intended to remain on 52.5ml as he felt this was suitable for him.
Counselling
Ms Bennetts deposed that the respondent was scheduled to commence substance use counselling through the Cyrenian House ADAPT Program on 7 August 2024 but failed to attend as directed.
Since his re-release to the community on 30 August 2024 (after he was remanded in custody), the respondent has not re-engaged with Cryenian House to commence counselling.
Anti-social peers
As to relationship instability and association with anti-social peers in the community, Ms Bennetts deposed that the respondent had reported that he had commenced an intimate relationship with a female within approximately a week of his release.
Ms Bennetts deposed that it was confirmed through Departmental records, and through admissions from the respondent, that the respondent's partner presented with an offending history similar to that of the respondent, and together with the respondent, had been associating with known drug users and antisocial family members and peers.
The respondent reported that he had ceased his relationship with the female in late July and that they were no longer in consistent contact.
Ms Bennetts deposed that the respondent had reported and provided details of his associates in the community, which raised concerns as it had been confirmed that some associates held significant offending history including drug related, theft and violent offending. The respondent did not cease his engagement with these associates, despite having been encouraged consistently to do so.
Accommodation
As to the status of the respondent's accommodation, Ms Bennetts deposed that the respondent's approved accommodation with his brother and sister-in-law had been withdrawn due to his inability to comply with house rules, in addition to his reoffending and absconding from the property.
As at the date of her affidavit, Ms Bennetts deposed that the respondent did not have stable accommodation or long-term accommodation options.
Ms Bennetts had noted that an assessment had been completed with family friends of the respondent, who described themselves as positive supports of the respondent and articulated their willingness to assist the respondent with reintegration. For today's purposes, I proceed cognisant that the accommodation that had been found to be suitable at the hearing of the restriction order application was no longer available to the respondent.
Conditions
Finally, I note that Ms Bennetts on behalf of COMU was not in a position to suggest additional conditions, or variations, that might improve the management of the respondent's risk of serious offending in the community at this time.
Disposition
Statutory context
Part 4 of the High Risk Serious Offenders Act concerns the restriction of offenders and div 5 concerns contravention of a supervision order.
Section 53 of the High Risk Serious Offenders Act empowers the State to commence contravention proceedings. Section 53, among other things, applies to an offender who is charged with an offence under s 80(1) of the High Risk Serious Offenders Act.
Section 54 of the High Risk Serious Offenders Acts allows for the court to order reports for purposes of contravention proceedings; and s 55 concerns the orders that might be made at the substantive hearing. The orders that the court may make under s 55 are to: rescind the supervision order and make a continuing detention order in relation to the offender; make an order amending the conditions of the supervision order or extending the duration of the supervision order; or affirm the supervision order without amendment or extension.
Relevantly, s 56 of the High Risk Serious Offenders Act concerns the orders that may be made during contravention proceedings, and provides as follows:
(1) This section applies if an offender who is subject to a supervision order is before the Supreme Court and proceedings on an application made under section 53 in respect of the offender are pending (the pending proceedings).
(2) The court may at any time in the pending proceedings -
(a) if the offender is detained in custody, order the offender to be released, subject to subsection (3); or
(b) if the offender is not detained in custody, order the offender to be detained in custody.
(3) The court cannot order the offender to be released unless it is satisfied on the balance of probabilities that -
(a) releasing the offender is justified by exceptional circumstances; and
(b) the offender will substantially comply with the standard conditions of the supervision order, including any amendments to the standard conditions made under subsection (7)(b).
(4) The onus of proof as to the matter described in subsection (3)(b) is on the offender.
(5) For the purposes of subsection (3), in considering whether releasing the offender is justified by exceptional circumstances the court may, as it thinks fit, receive and take into account information put before it, whether or not that information would normally be admissible in a court of law.
(6) In making a decision under subsections (2) and (3), the paramount consideration is to be the need to ensure adequate protection of the community.
(7) If the court releases the offender —
(a) the offender remains subject to the supervision order; and
(b) the court may, before the pending proceedings are determined, make an interim order amending the supervision order to include any requirements the court considers appropriate to ensure adequate protection of the community; and
(c) the court may order the offender to reappear before the court at any adjourned hearing of the pending proceedings; and
(d) if it is alleged that the offender has further breached the supervision order or breached an order made under paragraph (c), the court may issue a warrant to have the offender arrested and brought before the court.
In this case, s 56 is engaged as the respondent is before the court in respect of pending proceedings: s 56(1).
I have considered whether the requirement for exceptional circumstances in s 56(3) is engaged in the disposition of the State's application pursuant to s 53(2)(b), which in turn, depends upon whether s 56(2)(a) is engaged.[12]
[12] The State of Western Australia v Slater [No 2] [2021] WASC 465 [17]; cited with approval in The State of Western Australia v MAR [No 4] [2023] WASC 271 [14].
In that regard, the first question is whether the respondent is 'detained in custody' within the meaning of s 56(2)(a).[13] As to how such a question is answered, I adopt the views expressed by Quinlan CJ in The State of Western Australia v Slater [No 2] at [19] - [20]:
Prima facie, in my view, 'detained in custody', within the meaning of s 56, means detained pursuant to the provisions of the Act. Section 56(2)(a) cannot be construed as providing this Court with a general dispensing power to release persons who are otherwise in custody, either as sentenced prisoners or on remand for other offences.
In the context of pt 4 div 5 of the Act, in my view, the expression 'detained in custody' would ordinarily apply to a person who is in custody as a consequence of having been arrested pursuant to a warrant issued under s 51 of the Act in relation to a suspected or anticipated contravention of a supervision order. An order of the Court would be necessary to 'release' such a person from custody, and so s 56(2)(a) would apply - including the requirements of s 56(3). Similarly, a person detained pursuant to an order of the Court made under s 53(2)(b) of the Act would be 'detained in custody' within the meaning of s 56(2)(a).
[13] The State of Western Australia v Slater [No 2] [18], cited with approval in The State of Western Australia v MAR [No 4] [15].
In this case, the respondent is remanded in custody to appear on 9 October 2024 in the Magistrates Court for sentencing in relation to two offences of having contravened a requirement of a supervision order (PE 50287/2024 and PE 50289/2024). He is not presently 'detained in custody' pursuant to an order made or power exercised under the High Risk Serious Offenders Act. Nor is he an offender brought before the court under a warrant issued under s 51(3) or s 56(7)(d).
I therefore proceed on the understanding that there need not be, nor would there be an 'order [for] the offender to be released' within the meaning of s 56(2)(a) if I were to refuse the State's application, and that subsection has no application. For that reason, I proceed on the basis that no issue of exceptional circumstances arises.[14] This approach is consistent with the State's position as articulated in the course of the hearing and not opposed on behalf of the respondent.
[14] The State of Western Australia v Slater [No 2] [24], cited with approval in The State of Western Australia v MAR [No 4] [17].
In the disposition of the application, I also adopted and applied the observations of Quinlan CJ in The State of Western Australia v Slater [No 2] at [25] - [27]:
… [T]he real issue is that which applies generally to an interim detention order (under s 46(2)(c)) or an interim supervision order under (s 58(2)(c)); namely, whether the Court is satisfied that, to ensure adequate protection of the community, it is desirable to make either an interim detention order or an interim supervision order. That is, in effect, the test that applies to the making of an interim supervision order generally.
This points up an important aspect of any consideration of alleged contraventions of an interim supervision order. Compliance with an interim supervision order (and, indeed, any supervision order) is an important matter, and the importance of such compliance should not be understated. Nevertheless, it must be recognised, having regard to the text and structure of the Act as a whole, that an interim supervision order is not an end in, and of, itself. An interim supervision order is a means to an end: the end being the protection of the community against the risk of serious offences.
In that sense, a supervision order or an interim supervision order will have served its purpose if it protects the community from serious offences, even if compliance with the conditions of the order, in the particular case, has not been perfect. The Court must always keep in mind that the object of the Act to be achieved is the adequate protection of the community from the commission of serious offences.
Assessment of the application
I now turn to the assessment of whether the respondent should be detained in custody until the determination of the contravention proceedings.
Various findings were made in the restriction order proceeding. I do not understand that either party has taken issue with those findings, nor my having regard to the same for the purpose of determining the State's application under s 53(2)(b).
I proceed on the basis that the respondent has an extensive criminal history.
I understand that six of the respondent's recent charges were referred in relation to contraventions of a requirement/condition of the supervision order. The respondent was convicted of all on his plea of guilty. The respondent has not been sentenced for two of the six offences.
A consistent theme of the experts at the hearing of the restriction order application was that the respondent's violent behaviour is most likely to be associated with unemployment and financial stress coupled with return to substance use and with negative influence from antisocial peers resulting in a return to criminal activity. Violence being used instrumentally to achieve criminal goals such as the theft of money and/or goods. Further, I note that Ms Yewers had opined that in addition to violence preventive strategies, post‑release support should include support to find and maintain accommodation, assistance seeking and gaining employment and assistance to engage with and complete required treatment will need to be pro-active and assertive if change is to be achieved. I understand Dr Wynn Owen's evidence to be consistent with Dr Yewer's evidence in this regard.
I understand that since his release on a supervision order, the respondent promptly returned to the use of illicit substances, continued to take a methadone dose below the recommended dosage, has associated with anti-social peers (and has continued to do so despite recommendations to the contrary), and has acted contrary to a direction by not engaging in counselling.
Ms Bennetts deposed that she had observed that the respondent had demonstrated a general disregard for his HRSO supervision order and the conditions, and that he had demonstrated a general belligerent attitude particularly with regard to his use of substances in the community.
I consider the removal by the respondent of his electronic monitoring device to be particularly concerning.
The respondent has been subject to the supervision order for a little over three months. He has spent a considerable amount of that period in remand in relation to his recent convictions. There have been a large number of offences (for which the respondent has pleaded guilty) in that time.
For the purpose of this application, I accept that the breaches by the respondent of the conditions may indicate that the respondent is moving towards a heightened risk that he may commit a serious offence.
In the end, the issue for me is whether it is necessary or desirable that the respondent be detained to protect against the risk of a serious offence being committed between now and the substantive hearing of the contravention proceedings. I consider that the material before me reveals such a risk, and I am satisfied that it is necessary that the respondent be detained having regard to the paramount consideration.
At this point in time, I am satisfied that it is necessary to make such an order to ensure adequate protection of the community from the unacceptable risk of the respondent committing serious offences of the type identified in the course of the restriction order application, described in the TheState of Western Australia v Roffey [No 2].
Before so concluding, I also considered whether a variation to the conditions to which the respondent is subject, or the addition of conditions, might tip the balance. Unfortunately, given the range and number of breaches the subject of recent conviction, on the evidence before me, I am not satisfied that a variation or imposition of additional conditions would ensure adequate protection of the community from the commission of serious offences.
I will therefore make an order under s 53(2)(b). The respondent will be detained in custody while contravention proceedings on the State's application for an order under s 55 remain pending.
The orders otherwise promoted on the part of the State are also appropriate. The application will be listed for hearing on Wednesday, 26 February 2025 commencing at 10.30 am.
Section 54 of the High Risk Serious Offenders Act allows for the court to order reports for purposes of contravention proceedings and by order 2, the respondent will undergo an examination by Dr Wynn Owen for the purpose of the contravention proceedings.
Conclusion and orders
For these reasons, I am satisfied that I should make an order detaining the respondent until the determination of the contravention proceedings, and the programming orders promoted on behalf of the State. A copy of the orders made on 7 October 2024 are reproduced at sch B to these reasons.
Sch A - Conditions imposed by an order made on 10 June 2024
STANDARD CONDITIONS REQUIRED BY THE HRSO ACT
1. Report to a Community Corrections Officer (CCO) at the East Perth Adult Community Corrections Centre, 30 Moore Street, East Perth, Western Australia (WA), 6004, within 48 hours of imposition of this order being and advise the officer of your current name and address;
2. Report to and receive visits from, a CCO as directed by the Court;
3. Notify a CCO of every change of your name, place of residence, or place of employment at least 2 business days before the change happens;
4. Be under the supervision of a CCO, which includes, comply with any reasonable direction of the officer (including direction for the purposes of section 31 or 32);
5. Not leave, or stay out of the State of Western Australia without the permission of a CCO;
6. Not commit a serious offence during the period of the Order;
7. Be subject to electronic monitoring under section 31;
ADDITIONAL CONDITIONS
Residence
8. Take up residence at [redacted] and spend each night at that address or at a different address only if such different address is approved in advance by a CCO assigned to you; Reporting to a CCO and supervision by a CCO
9. Report to a CCO at your approved release address within normal business hours on the day of release from custody under this order and be under the supervision of a CCO, report to and receive visits from, and comply with the lawful orders and directions of a CCO;
10. Disclose to the CCO the name and details of any paid or unpaid employment, education, training or volunteer work in which you intend to commence;
Attendance at programs or treatment
11. Attend all appointments with, receive visits from, consult and engage with any medical practitioner, psychiatrist, psychologist, mentor, counsellor support service and/or support person nominated by a CCO, as directed by a CCO;
12. Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious re-offending, as directed by a CCO; Reporting to WA Police
13. Report to the Officer-in-Charge of the High Risk Serious Offender team at the Hatch Building, 144 Stirling Street, Perth WA 6000 within 48 hours of your release from custody, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the High Risk Serious Offender team or his/her delegate;
14. If requested, permit Police Officers to enter and search your residence and/or vehicle and search your person for the purpose of monitoring your compliance with your obligations under this Order and allow the seizure of any such items that the Police Officers believes to contravene the conditions of the Order;
15. Remain at your premises and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under condition 14; Disclosure/Exchange of information
16. Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information;
17. Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate to disclose to them confidential information including your offending history;
Restrictions on contact with victims
18. Have no contact, directly or indirectly, with the victims of your violent offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-offender Mediation Unit of the Department of Justice;
19. Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your violent offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victims at all times;
20. Report to the CCO and WA Police any direct or indirect contact with the victims of your offending on the next working day you report to the CCO or Police;
Criminal conduct
21. Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments;
22. Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 (WA) applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014 (WA), and you use is in accordance with the instructions of the prescriber;
Curfew
23. Be subject to a curfew, pursuant to section 32 of the High Risk Serious Offenders Act 2020, such that you are to remain at and not leave you approved address as directed by a CCO from time to time;
24. When subject to a curfew under this order, present yourself for inspection at the front door or front yard of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew;
25. When subject to a curfew under this Order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew;
Prevention of high-risk situations
26. Not to associate with any person who may fit the criteria of being a cooffender when you previously committed any robbery offence;
27. Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place;
28. Provide a valid sample pursuant to Condition 27;
29. Not purchase, or possess, or consume or use alcohol, unless approved in advance by a CCO;
30. Not go, enter any part of your body inside, or remain at any licensed premises with the exception of cafes, restaurants, sporting venues and/or grocery stores unless permitted or required to do so for the following reasons;
a) For the purpose of averting or minimising a serious risk of death or injury to yourself or another person;
b) For a purpose, and duration approved in advance by a CCO;
c) On the order of a CCO or Police Officer;
31. Not remain in the presence of any person who is affected by alcohol or prohibited substances, or you ought to know are affected by alcohol or prohibited substances, unless the identity of such person is approved in advance by the CCO;
32. Not remain in any place where prohibited drugs are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place, or remove the persons consuming prohibited drugs from your residence;
33. Advise a CCO or Police Officer of every telecommunication device capable of storing digital data or information, possessed or used by you, whether or not it is capable of being connected to the internet, and the location of that device;
34. Upon request, permit a CCO or WA Police at any location nominated by them, to access any telecommunication device you use capable of storing digital data, for the purpose of ascertaining your telecommunication device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device; this includes providing all screen name(s), user name(s), and email addresses;
35. Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on any telecommunication device that you use, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police;
36. Not to be in possession of any firearm, any ammunition or any offensive or prohibited weapon, replica or dangerous article and not to apply for, acquire or hold a licence to possess any firearm, any ammunition or any offensive or prohibited weapon, replica or dangerous article;
37. To disclose and provide reasonable details of your activities and associations/associates you come into contact with in the community, when reasonably requested by your CCO;
38. You must not assault, threaten, insult or use abusive language to a member of the departmental staff or an agent providing a service on behalf of the Department of Justice;
Medications/Mental Health
39. Attend any medical practitioner, psychologist, psychiatrist, or counsellor as directed by the supervising CCO or undergo medication treatment, as directed by the CCO in consultation with a medication practitioner or medical practitioners;
40. Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of reoffending and compliance with treatment to the Department of Justice; and
41. Permit any medical practitioner or medical practitioners to advise the CCO immediately if they become aware or suspect that you have, or intend to cease undergoing medication contrary to the advice of the medical practitioner or medical practitioners, or you have apparently ceased to consult with that medical practitioner or medical practitioners on such treatment.
Sch B - Orders made on 7 October 2024
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SE
Associate to the Honourable Justice Strk
8 OCTOBER 2024
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