The State of Western Australia v Roffey [No 4]

[2025] WASC 74

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- ROFFEY [No 4] [2025] WASC 74

CORAM:   STRK J

HEARD:   26 FEBRUARY 2025

DELIVERED          :   5 MARCH 2025

PUBLISHED           :   7 MARCH 2025

FILE NO/S:   SO 11 of 2023

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

KENNETH MARTIN JAMES ROFFEY

Respondent

Catchwords:

Criminal law - Contravention proceedings - Application made by the State under s 53 and s 55 of the High Risk Serious Offenders Act 2020 (WA) for the recission of a supervision order and for the making of a continuing detention order - Whether on the balance of probabilities the respondent has contravened a condition of the supervision order - Whether the supervision order should be rescinded, affirmed, amended or extended - Turns on own facts

Legislation:

Criminal Code (WA)
Dangerous Sexual Offenders Act 2006 (WA) (repealed)
High Risk Serious Offenders Act 2020 (WA)
Misuse of Drugs Act 1981 (WA)

Result:

Supervision order rescinded
Continuing detention order made

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 DAL [No 2] [2016] WASC 212

Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393

Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4

Garlett v The State of Western Australia [2022] HCA 30; (2022) 277 CLR 1

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

The State of Western Australia v CA [No 3] [2023] WASC 144

The State of Western Australia v Corbett [No 8] [2021] WASC 171

The State of Western Australia v Garlett [2021] WASC 387

The State of Western Australia v Gorham [No 2] [2022] WASC 351

The State of Western Australia v Latimer [2006] WASC 235

The State of Western Australia v Latimer [No 12] [2023] WASC 333

The State of Western Australia v MAR [No 5] [2023] WASC 434

The State of Western Australia v Rao [2019] WASC 93

The State of Western Australia v Roffey [No 2] [2024] WASC 220

The State of Western Australia v Roffey [No 3] [2024] WASC 368

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

Table of Contents

Introduction

Statutory framework and legal principles

Evidence adduced at the contravention hearing

Book of materials

Affidavit of Nicole Bennetts affirmed on 25 September 2024

Forensic Psychological Intervention Team treatment progress report

Witnesses called by the State

Assessment of the application

The State's position

Has the respondent contravened the supervision order as alleged?

Contraventions 1 - 2 (PE 40402/24 - 40403/24)

Contraventions 3 - 4 (PE 44702/24 - 44703/24 and PE 47004/24)

Contravention 5 (PE 49045/24)

Contravention 6 (PE 50287/24 - 50288/24)

Contravention 7 (PE 50289/24)

Uncharged contraventions

Further offending

Should the supervision order be rescinded, affirmed, amended or extended?

Conclusion, orders and recommendations

Schedule A - Conditions imposed by an order made on 10 June 2024

STRK J:

Introduction

1. These reasons concern contravention proceedings under the High Risk Serious Offenders Act 2020 (WA) in respect of the respondent. By way of background, I note as follows.

2. On 10 June 2024, having found the respondent to be a high risk serious offender within the meaning of s 7(1) of the High Risk Serious Offenders Act, a supervision order was made in relation to the respondent: TheState of Western Australia v Roffey [No 2] [2024] WASC 220. The respondent's history, the evidence that grounded the finding that the respondent was a high risk serious offender, and the reasons for finding that a supervision order was the appropriate restriction order at that time, were set out in detail in those reasons. The respondent was made subject to a supervision order for a period of five years with effect from 1 July 2024, which order incorporated the conditions reproduced at sch A to these reasons. The respondent's approved address has been redacted.

3. On 26 September 2024 the State filed an application under s 53(2) of the High Risk Serious Offenders Act commencing contravention proceedings under s 55 in relation to alleged contraventions of the conditions of the supervision order.

4. For the reasons delivered on 7 October 2024, on the application of the State under s 53(2)(b) of the High Risk Serious Offenders Act, the respondent was detained in custody on an interim detention order pending the determination of the contravention proceedings: The State of Western Australia v Roffey [No 3] [2024] WASC 368.

5. Prior to the substantive contravention hearing on 26 February 2025, the State filed a written outline of submissions on 21 February 2025. As outlined at par 63 of the State's outline of submissions, the State alleged that the respondent had contravened the conditions of the supervision order as follows:

   (a)the respondent contravened condition 22 by using heroin, as detected in a urine sample provided by the respondent on 12 July 2024 (Contravention 1);

   (b)the respondent contravened condition 28 by failing to provide a valid sample for urinalysis as directed on 15 July 2024 (Contravention 2);

   (c)the respondent contravened condition 7 by removing his electronic monitoring device on 9 August 2024 (Contravention 3);

   (d)the respondent contravened condition 23 by failing to comply with his curfew on 9 ‑ 10 August 2024 (Contravention 4);

   (e)the respondent contravened condition 4 by failing to comply with a direction from his Community Corrections Officer not to have any visitors at his approved place of residence, on 1 September 2024 (Contravention 5);

   (f)the respondent contravened condition 22 by using methylamphetamine, as detected in a urine sample provided by the respondent on 4 September 2024 (Contravention 6); and

   (g)the respondent contravened condition 4 by failing to comply with a direction from his Community Corrections Officer not to leave his designated residence between the hours of 6:00 pm and 6:00 am, on 7 September 2024 (Contravention 7).

6. In summary, it was the State's position that the court ought be satisfied on the balance of probabilities that the respondent has contravened a condition of the supervision order, and that in all of the circumstances of this case, the court should rescind the supervision order and impose a continuing detention order pursuant to s 55(1)(a) of the High Risk Serious Offenders Act, as:

   (a)the court could not be satisfied that the respondent will substantially comply with the standard conditions of the supervision order; and

   (b)the respondent's release subject to the supervision order would not ensure an adequate degree of protection to the community at this time.

7. The respondent was represented by counsel at the contravention hearing, and it was the respondent's position that the contraventions of the conditions of the supervision order as alleged were conceded (in so far as convictions had been entered),[1] however the court could be satisfied that:

   (a)the respondent would substantially comply with the standard conditions of the supervision order; and

   (b)the respondent's release subject to the supervision order, amended so as to include two additional conditions, would ensure an adequate degree of protection to the community.

   [1] ts 85, 113 (26 February 2025).

8. The matters I must decide are as follows:

   (1)whether, on the balance of probabilities, the respondent has contravened a condition of the supervision order; and if so

   (2)whether the supervision order should be rescinded and a continuing detention order made, or whether the respondent should be permitted to remain on the supervision order with or without amendment or extension.

9. For the reasons which follow, I was satisfied:

   (1)on the balance of probabilities that the respondent had contravened a condition of the supervision order; and

   (2)that the supervision order should be rescinded and a continuing detention order made.

Statutory framework and legal principles

1. In The State of Western Australia v MAR [No 5] [2023] WASC 434 at [10] ‑ [21], I summarised the applicable statutory framework and legal principles, which I reproduce below. I adopted and applied the following in the disposition of the State's application in relation to the respondent's alleged contraventions of the conditions of the supervision order.

2. The objects of the High Risk Serious Offenders Act 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 offenders; and

   (b)continuing control, care or treatment of high risk serious offenders.[2]

   [2] High Risk Serious Offenders Act s 8.

3. The jurisprudence established in respect of the Dangerous Sexual Offenders Act 2006 (WA) (repealed) is relevant in construing and applying the High Risk Serious Offenders Act, with appropriate adaption in cases involving non-sexual offences.[3]

   [3] The State of Western Australia v ZSJ [2020] WASC 330 [31].

4. The powers conferred by the High Risk Serious Offenders Act are not to be exercised for the purpose of imposing additional punishment on the offender, but rather for the ultimate purpose of protecting the community.[4]

   [4] Garlett v The State of Western Australia [2022] HCA 30; (2022) 277 CLR 1 [55] ‑ [56].

5. If an offender is charged with an offence under s 80(1) of the High Risk Serious Offenders Act, s 53 provides that the State may make an application for an order under s 55. On such an application, if the court is satisfied on the balance of probabilities that the offender has contravened, is contravening, or is likely to contravene a condition of a supervision order, the court must rescind the supervision order and make a continuing detention order, or, subject to s 29, release the offender on the supervision order. In the latter case, the supervision order may be amended and, in some cases, extended.[5]

   [5] High Risk Serious Offenders Act s 55.

6. The court is not required to be satisfied that the offender intentionally or deliberately contravened the supervision order, unless the condition which is in issue includes a mental element.[6]

   [6] The State of Western Australia v Corbett[No 8] [2021] WASC 171 [180] ‑ [181].

7. It is to be assumed that the respondent remains a high risk serious offender. The court is not required to make that determination again.[7] In deciding which order to make, the paramount consideration is to be the need to ensure adequate protection of the community.[8] However, the court should choose the order which is the least invasive or destructive of the offender's right to be at liberty.[9]

   [7] The State of Western Australia v CA [No 3] [2023] WASC 144 [28]; The State of Western Australia v Latimer [No 12] [2023] WASC 333 [60].

   [8] High Risk Serious Offenders Act s 55(3).

   [9] The State of Western Australia v Latimer [2006] WASC 235 [49].

8. The need to ensure the adequate protection of the community does not exclude other considerations. The use of the word 'adequate' indicates that a qualitative assessment is required.[10]

   [10] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33], approved in The State of Western Australia v Rao [2019] WASC 93 [25], and The State of Western Australia v Garlett [2021] WASC 387 [142].

9. A continuing detention order is an order that the offender be detained in custody for an indefinite term for control, care or treatment.[11] A supervision order is an order that the offender, when not in custody, is to be subject to stated conditions that the court considers to be appropriate in accordance with s 30 of the High Risk Serious Offenders Act.[12]

   [11] High Risk Serious Offenders Act s 3, s 26(1).

   [12] High Risk Serious Offenders Act s 3, s 27(1).

10. The court cannot release an offender on a supervision order unless satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order, the onus of establishing which is on the offender.[13]

    [13] High Risk Serious Offenders Act s 29, s 55.

11. The standard conditions of a supervision order are set out in s 30(2) of the High Risk Serious Offenders Act and include the requirement that the offender be under the supervision of a Community Corrections Officer and comply with any reasonable direction of the officer (including a direction for the purposes of s 31 or s 32); not commit a serious offence during the period of the order; and be subject to electronic monitoring under s 31.[14]

    [14] High Risk Serious Offenders Act s 30(2)(d), (f) and (g).

12. In Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 at [52(6)], Fiannaca J observed that, in determining whether an offender 'will substantially comply with the standard conditions of the order':

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

13. Even if the court is satisfied that the offender will substantially comply with the standard conditions of a supervision order, the court must not release the offender unless satisfied that a supervision order will ensure an adequate degree of protection to the community.[15] When considering whether a supervision order would adequately protect the community, it is necessary to take into account any conditions which can be placed on a supervision order so as to ensure the adequate protection of the community, the rehabilitation of the respondent and his care and treatment. As was observed by Hall J in Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 at [107], there is no requirement that:

    there be no risk of reoffending. Such a requirement could never be met and the effect would be that no person to whom the Act applies would ever be released. The requirement is that any risk be reduced to a reasonably acceptable level. This will always require a careful weighing of the nature and degree of risk and the context of methods for the management and reduction of that risk.

    [15] The State of Western Australia v ACJ [2021] WASC 219 [38].

14. In The State of Western Australia v Gorham [No 2] [2022] WASC 351 at [34] Archer J articulated the following nine factors that were, in effect, identified by Fiannaca J in Director of Public Prosecutions for Western Australia v Hart at [50], as being factors relevant to the assessment of whether a respondent will substantially comply with the standard conditions (which his Honour noted would also include the respondent's history of compliance and non-compliance):

    (1)the respondent's attitude to the conditions of the supervision (in particular whether the respondent is likely to deliberately flout the conditions);

    (2)the respondent's capacity to comply with the conditions;

    (3)what measures there are in place to ensure that the respondent would substantially comply;

    (4)the relative importance of any breach that might occur, in terms of the impact it would have on the practical effect of the supervision order in achieving the objects of the High Risk Serious Offenders Act;

    (5)the respondent's motivation to remain offence free and in the community;

    (6)any willing participation in a sex offender treatment program;

    (7)abstinence from drugs;

    (8)conduct while in prison; and

    (9)demonstrated gains in treatment, self‑management and life skills.

Evidence adduced at the contravention hearing

Book of materials

1. At the hearing of this application, I received into evidence a book of materials in two volumes that had been prepared by the State.

2. The first volume was dated 2 January 2025,[16] and contained a copy of the State's application for a restriction order filed on 28 November 2023 (misdescribed in the index as being the State's application to bring this contravention proceeding); the respondent's criminal record; copies of judgments from previous restriction and contravention hearings; various Department of Justice prison records; various medical and hospital records; materials relating to the contravention allegations including prosecution notices, statements of material facts, transcripts of hearings before the Magistrates Court; and historical assessment reports and documents which included the psychiatric report of Dr Tara Yewers dated 21 March 2024, the psychiatric report of Dr Peter Wynn Owen dated 16 April 2024, and the treatment progress report of Caris Hamlett‑Waller dated 21 October 2024.

   [16] Exhibit A.

3. The second volume was dated 20 February 2025,[17] and contained materials provided by the Department of Justice (being the pre‑sentence report of Nicole Bennetts dated 4 October 2024, and the treatment progress report dated 21 October 2024); updated contravention materials; and three reports prepared for the contravention hearing (being the HRSO treatment progress report of Anna James dated 30 January 2025, the psychiatric report of Dr Wynn Owen dated 23 January 2025, and the performance report of Ms Bennetts dated 19 February 2025).

Affidavit of Ms Bennetts affirmed on 25 September 2024

[17] Exhibit B.

1. I also received the affidavit of Ms Bennetts affirmed on 25 September 2024 into evidence.[18] Ms Bennetts is a Senior Community Corrections Officer within the Community Offender Monitoring Unit of the Department of Justice, and attached to her affidavit a copy of the supervision order made on 10 June 2024; the reasons for decision published on 18 June 2024;[19] and a copy of the respondent's criminal record.

   [18] Exhibit C.

   [19] TheState of Western Australia v Roffey [No 2].

2. Ms Bennett's affidavit affirmed on 25 September 2024 was read at the hearing on 7 October 2024, when the court considered the application of the State under s 53(2)(b) of the High Risk Serious Offenders Act for an order that the respondent be detained in custody on an interim detention order pending the determination of the contravention proceedings.[20] At the hearing on 7 October 2024, the respondent did not require Ms Bennetts to submit herself to cross‑examination on the content of her affidavit. Her affidavit was again tendered without objection at the substantive hearing of the contravention application on 26 February 2025.

   [20] The State of Western Australia v Roffey [No 3] [6].

3. Among other things, Ms Bennetts deposed that the respondent had been managed by the Community Offender Monitoring Unit since he was released subject to the supervision order; that she had been the respondent's case manager since 1 July 2024; and that the respondent had exhibited certain behaviours between 1 July 2024 and 5 September 2024 which Ms Bennetts described as being concerning. The concerning behaviours included substance use in the community; relationship instability and association with anti‑social peers in the community; and accommodation instability, followed by the withdrawal of accommodation support.[21]

Forensic Psychological Intervention Team treatment progress report

[21] As was recorded in The State of Western Australia v Roffey [No 3] [28] - [29].

1. A referral was received by the Forensic Psychological Intervention Team to address the respondent's outstanding criminogenic needs after he was placed on a restriction order in June 2024. Volumes 1 and 2 of the book of materials include a treatment progress report dated 21 October 2024 completed by Ms Hamlett‑Waller, a counselling psychologist employed by the Department of Justice, within the Forensic Psychological Intervention Team.

2. In the treatment progress report, Ms Hamlett‑Walker recorded that the respondent had attended an initial treatment session while in custody and before his release subject to the supervision order in July 2024, and four sessions while in the community while subject to the supervision order, each ranging in length from 30 minutes to an hour. She reported that on 21 October 2024, the respondent was told that services would be suspended until the contravention proceedings had been heard and determined. (From Ms Hamlett‑Waller's report, I understood that suspension of treatment was in part due to the lack of suitable counselling facilities at Hakea Prison.)

1. In her report Ms Hamlett‑Waller outlined what had been the treatment goals and the focus of the sessions attended by the respondent. She also recorded her opinion that each of the respondent's criminogenic needs remained outstanding, and further opined that:[22]

   Despite his reported motivation to engage in a prosocial lifestyle, [the respondent] appeared ill-equipped to manage the many challenges he faced once released, despite the highly restrictive nature of the [supervision order]. [The respondent] returned to substance use and antisocial behaviour shortly after his release and appeared to have problems navigating the complexities of interpersonal relationships and high-risk peers. The initial contact with [the respondent] indicated an understandable level of naivety as to the difficulties of moving away from an entrenched antisocial lifestyle. Ideally, a rudimentary gain for [the respondent] during his short time in the community would be increasing his awareness of the internal and external modifications (and inherent struggles) that are required for longer-term change towards a prosocial lifestyle.

   [22] Exhibit B, page 302 (Forensic Psychological Intervention Team treatment progress report of Ms Hamlett‑Waller dated 21 October 2024, page 2).

2. As to recommendations going forward, Ms Hamlett‑Waller recommended further intervention for the respondent, and noted that the nature of intervention would be guided by the type of order imposed. The respondent had reported a willingness to re‑engage with his current Forensic Psychological Intervention Team psychologist in custody or in the community.

3. Ms Hamlett-Waller recorded that if the respondent was in the community, weekly sessions could be arranged, and if a continuing detention order was imposed, consideration could be given to his participation in the high‑intensity Violence Prevention Program, which he had not yet participated in and which contains a substance use module. Ms Hamlett‑Waller further observed that the respondent had completed the Pathways Program on two occasions (most recently in 2023), and suggested that further participation in the same program may be of limited benefit to him.

Witnesses called by the State

1. At the contravention hearing, the State called three witnesses, who gave oral evidence and their reports were received into evidence (which reports were incorporated in the second volume of the book of materials). They were:

   (a)Dr Wynn Owen, the author of the psychiatric report dated 23 January 2025;

   (b)Ms James, the author of the treatment progress report dated 30 January 2025; and

   (c)Ms Bennetts, the author of the performance report dated 19 February 2025.

Evidence of Dr Wynn Owen - psychiatric report

1. On 7 October 2024 the respondent was ordered to undergo an examination by a qualified expert, namely psychiatrist Dr Wynn Owen, for the purposes of preparing a report as required by s 74 of the High Risk Serious Offenders Act to be used at the hearing of the contravention application.[23]

   [23] Order 2 of the orders made on 7 October 2024.

2. The order was made in circumstances where Dr Wynn Owen had prepared a report dated 16 April 2024 for the restriction order application hearings concerning the respondent.[24] I had considered Dr Wynn Owen's first report in my earlier decisions, as had been recorded in The State of Western Australia v Roffey [No 2] at [98] ‑ [129] and The State of Western Australia v Roffey [No 3] at [19] ‑ [22].

   [24] Exhibit A, pages 269 - 292 (Psychiatric report by Dr Wynn Owen dated 16 April 2024, pages 1 - 24).

3. Set out below is a summary of Dr Wynn Owen's evidence. It is not intended to be a complete account.

4. In Dr Wynn Owen's second report, prepared for the purposes of the substantive contravention hearing, Dr Wynn Owen among other things recorded his credentials and professional background; that it had been explained to the respondent that the interview with Dr Wynn Owen was not confidential; that Dr Wynn Owen had no conflict of interest; and the information sources upon which Dr Wynn Owen had relied in preparing his second report. In his report, Dr Wynn Owen also summarised the respondent's history of serious offending and other historical offending; the background to this contravention proceeding, including the outcome of the restriction order proceeding; the respondent's performance while on the supervision order which included a description of the respondent's convictions while on supervision, the respondent's account of his alleged contraventions, and the respondent's account of his time in the community; the observations of Ms Hamlett‑Waller recorded in the respondent's treatment progress report; the respondent's mental health upon his return to prison; the respondent's recent prison behaviour; the respondent's plans for release; the respondent's mental state examination; the respondent's psychiatric diagnosis; the respondent's risk assessment update; and Dr Wynn Owen's opinion and recommendations in respect of the respondent.

The respondent's account of the alleged contraventions

1. Dr Wynn Owen recorded that the respondent had admitted to using heroin twice (on the same day) approximately one week after release from prison, and that he had reported that he had realised it was a mistake to use and regretted his decision to do so. Dr Wynn Owen recorded that the respondent had also admitted to using methamphetamine on one occasion.[25]

   [25] Exhibit B, pages 322 ‑ 323 (Psychiatric report by Dr Wynn Owen dated 23 January 2025, pars 21, 25).

2. Dr Wynn Owen also recorded that the respondent had reported that he had acquired the heroin from an acquaintance he had met by chance, and that he had used methamphetamine with a female friend. He further reported to Dr Wynn Owen that he 'did stay away from [the female friend] after that'.[26]

   [26] Exhibit B, pages 322 ‑ 323 (Psychiatric report by Dr Wynn Owen dated 23 January 2025, pars 21, 25).

3. With respect to the stealing offence (described at [192] and [193] below), Dr Wynn Owen recorded that the respondent had denied any intention to steal or knowledge that his co-offenders had intended to steal; and that the respondent reported that he regretted the decision to enter the store.[27]

   [27] Exhibit B, page 322 (Psychiatric report by Dr Wynn Owen dated 23 January 2025, par 22).

4. With respect to the contravention involving the removal of his GPS tracking device, Dr Wynn Owen recorded that the respondent had conveyed that he 'had to have a break', as he was causing tension between his brother and sister‑in‑law, and his living situation had become unbearable.[28]

   [28] Exhibit B, page 322 (Psychiatric report by Dr Wynn Owen dated 23 January 2025, par 23).

5. With respect to the contravention involving the presence of his friends at his hotel premises, Dr Wynn Owen recorded that the respondent had reported that he had realised that he had not paid enough attention to the conditions when they were being explained to him by his Community Corrections Officer, and had been wrong in his understanding that people were not permitted in his hotel room but were permitted to attend the hotel premises.[29]

   [29] Exhibit B, page 322 (Psychiatric report by Dr Wynn Owen dated 23 January 2025, par 24).

6. With respect to the contravention involving his breach of curfew, the respondent reported that he had prioritised assisting someone over his compliance with the condition.[30]

The respondent's account of his time in the community

[30] Exhibit B, page 323 (Psychiatric report by Dr Wynn Owen dated 23 January 2025, par 26).

1. As to accommodation, Dr Wynn Owen recorded that the respondent had reported that he had experienced stress and tension at his brother's house within days of release due to interpersonal conflict with his brother and his sister‑in‑law. He reportedly conveyed this to his Community Corrections Officer but was told 'it's either there or prison'. The respondent also reported to Dr Wynn Owen that he found the curfew while in temporary hotel accommodation intolerable, reporting that it 'felt like jail'. Dr Wynn Owen also described in his report the respondent's current accommodation plan, should he be released.[31]

   [31] Exhibit B, pages 323, 325 (Psychiatric report by Dr Wynn Owen dated 23 January 2025, pars 28, 41).

2. As to substance use counselling, Dr Wynn Owen recorded that the respondent had reported that while he had attended Cyrenian House, he had been unable to make a booking due to the counsellors' availability. He reported to Dr Wynn Owen that he telephoned regularly to follow up and was subsequently given an appointment, but as the day coincided with a random urinalysis test, he was unable to attend. As to his plans if released, the respondent reported to Dr Wynn Owen that he intended to engage with Cyrenian House and Holyoak so as to engage in ongoing drug and alcohol counselling, and that he planned to avoid people he knows use drugs.[32]

   [32] Exhibit B, pages 323, 325 (Psychiatric report by Dr Wynn Owen dated 23 January 2025, pars 29, 42).

3. As to employment, the respondent reported to Dr Wynn Owen that he had secured a job opportunity in construction within a week of release; and that he was offered work upon completion of the trial on the condition he obtain a construction industry induction course completion card (also described as a 'White Card'), which he has not yet secured.[33]

   [33] Exhibit B, pages 323, 325 (Psychiatric report by Dr Wynn Owen dated 23 January 2025, pars 30, 43).

4. As to substance use, Dr Wynn Owen recorded that the respondent had reported that he had continued to take methadone at 52.5 mg daily. The respondent also conveyed to Dr Wynn Owen he was positive that his one‑off use of heroin and methamphetamine had not resulted in a return to regular use. The respondent further reported that he planned to re‑engage counselling if released, and that he had written letters to Cyrenian House and Holyoak seeking support upon his release.[34]

   [34] Exhibit B, page 324 (Psychiatric report by Dr Wynn Owen dated 23 January 2025, par 31); ts 90 (26 February 2025).

5. As to social activities, Dr Wynn Owen recorded that the respondent had acknowledged that he did not have a plan, and had been 'running around with girls'; had reported a number of intimate sexual encounters, one of which was serious but with whom the respondent did not intend to maintain contact; and had reported that he had spent considerable unstructured time with individuals who abused substances and knew him through his criminal reputation, some of which included past co‑offenders. The respondent also reported to Dr Wynn Owen that he had spent time with his mother and sister on a daily basis and had established a good relationship with his nephew (his sister's son); and when next released, he intended to maintain a close social group, socialising mainly with his mother, his sister, and his friends with whom he wished to reside.[35]

   [35] Exhibit B, pages 324, 325 (Psychiatric report by Dr Wynn Owen dated 23 January 2025, pars 32, 44).

6. As to counselling, it was reported by Dr Wynn Owen that the respondent had spoken positively about his sessions with Ms Hamlett‑Waller, and that they discussed the supervision order and the need for the respondent to be honest with himself and others.[36]

Mental State

[36] Exhibit B, page 324 (Psychiatric report by Dr Wynn Owen dated 23 January 2025, par 33).

1. As to the respondent's mental state, among other things, Dr Wynn Owen recorded in his report that the respondent showed no signs of thought disorder, perceptual disturbance or delusion. Dr Wynn Owen affirmed the respondent's psychiatric diagnoses of substance abuse disorder (multiple substances including alcohol, amphetamines and opiates), and anti‑social personality disorder.[37]

   [37] Exhibit B, page 326 (Psychiatric report by Dr Wynn Owen dated 23 January 2025, pars 47 - 48).

2. Additionally, Dr Wynn Owen recorded his observation that the respondent presented with impulsivity, disorganisation, poor time management, poor planning, restlessness and trouble coping with stress that is highlighted outside the highly restrictive structured prison environment. He also recorded his opinion that these signs led to the conclusion that the respondent may have adult attention deficit hyperactivity disorder (ADHD), but that further assessment by a specialist in this field would be necessary for an ADHD diagnosis.[38]

   [38] Exhibit B, page 326 (Psychiatric report by Dr Wynn Owen dated 23 January 2025, par 49).

3. In the course of his evidence, Dr Wynn Owen expressed his opinion that a diagnosis of ADHD:[39]

   may well assist [the respondent] in his self-management, whether the intervention, should a diagnosis be made, is purely a psychological intervention or an intervention that includes medications. It may have an impact on reducing his impulsivity. It may affect his ability to see longer-term consequences.

Risk assessment - update

[39] ts 86 (26 February 2025).

1. In his second report Dr Wynn Owen provided an update as to the respondent's risk assessment, using three assessment tools, namely the Violence Risk Appraisal Guide, Revised, 2013 (VRAG‑R), the Hare Psychopathy Checklist-Revised, second edition, 2003 (PCL‑R), and the Historical, Clinical and Risk Management 20, Version 3, Douglas, Hart, Webster, Belfrage 2013 (HCR‑20).[40]

   [40] Exhibit B, pages 326 - 328 (Psychiatric report by Dr Wynn Owen dated 23 January 2025, pars 50 - 70).

2. Dr Wynn Owen recorded his opinion that the respondent's VRAG‑R and PCL‑R assessments were unchanged, specifically that:

   (a)the respondent remained in the highest risk category for future violent offending per the VRAG-R;[41] and

   (b)the respondent's score indicated a moderate to high level of psychopathy, but does not meet the threshold for Psychopathic Disorder per the PCL-R.[42]

   [41] Exhibit B, page 326 (Psychiatric report by Dr Wynn Owen dated 23 January 2025, par 51).

   [42] Exhibit B, page 326 (Psychiatric report by Dr Wynn Owen dated 23 January 2025, par 52).

3. In his report, Dr Wynn Owen provided more extensive comment in respect of the respondent's HCR‑20 assessment. He recorded that he had observed there to be no change in respect of historical risk factors; as to clinical risk factors, he had observed that problems with insight, and treatment or supervision response were also present; and as to future problems, he had observed various risk factors to be present, including problems with professional services and plans, the respondent's living situation, his treatment or supervision response, and stress or coping.[43]

   [43] Exhibit B, pages 327 - 328 (Psychiatric report by Dr Wynn Owen dated 23 January 2025, pars 54 - 70).

4. In the course of his evidence, Dr Wynn Owen elaborated on the significance of the respondent's substance use while in the community subject to the supervision order. Dr Wynn Owen stated:[44]

   It is concerning that [the respondent] felt that he just didn't understand, wasn't able to consider why he might have chosen to use on that occasion …

   I would have hoped that he had learned from the heroin use that it was taken very seriously whilst he was on this order … It was using an illegal substance, which the order was quite explicit about not using. And apparently having an awareness of the association between substance use and his offending cycle, he still made that decision to use. It suggests a degree of impulsivity, failure of consequential thinking and inability to think in the moment that suggests that it may be likely to occur in the future …

   I think there's no doubt that [the respondent] was under a great degree of stress at that time. The fact that he was in the community, a man who has spent 20 years of the last 21-plus in prison, who has never really spent any significant component of his adult life outside of prison, whose skills in terms of being with others, living socially, are entirely based on how he functions in prison.

   [44] ts 87 - 88 (26 February 2025).

5. Dr Wynn Owen further expressed his view that while the respondent was subject to a great degree of stress (and that this may have contributed to his drug use), the issue lay in the fact that the respondent did not recognise this stress as part of the contribution to his drug use. He noted that:[45]

   It's not surprising that he struggles and that there is stress there. The concern is that the stress wasn't overt to him at that time. He wasn't able to see that as part of the contribution … I think reintegration stress and institutionalisation are a huge component to the risk of relapse into use and potentially into future offending that presents for [the respondent], which is a great concern and is not surprising, the degree of institutionalisation that he has suffered his entire adult life.

   [45] ts 88 (26 February 2025).

6. During cross-examination Dr Wynn Owen acknowledged that there is a link between a lack of structure and the respondent lapsing into drug use. Dr Wynn Owen noted that that the respondent had positively developed, by reflecting on his time spent in the community, an appreciation that without structure in his life, he is more likely to take drugs and associate with peers that he ought not to associate with.[46]

   [46] ts 90 - 91 (26 February 2025).

7. Dr Wynn Owen further affirmed that the lack of structure and the consequential breaches were unsurprising, stating:[47]

   It is unsurprising to me. I think that if we look at the fact that [the respondent] was last in the community for any period of time as an adolescent, and his life skills have come from living in a very aversive, but a very highly structured prison environment, he has very little that he can then apply to living within the community. And it's not as if he has been offered to develop those skills during the time he has been in prison, so it is unsurprising.

   [47] ts 91 (26 February 2025).

8. Dr Wynn Owen also in the course of cross‑examination affirmed that the respondent's living situation upon his release on the supervision order, and the changes made to his accommodation, contributed to the respondent's relapse to drugs, stating:[48]

   My opinion is that it was such a radical change from the structures that he was used to, that the house rules were different, that he had an expectation of a certain place in the home and its pecking order that perhaps reflected his understanding of that prison hierarchy and his place there, that he just couldn't … put the two together. And so relatively small things became huge frustrations for him, which he found himself unable to cope with, not able perhaps to reflect on the much bigger picture, which is, 'I'm now free after many, many, many years in prison. I need to actually try and just put up with some of this stuff.'

   [48] ts 91 (26 February 2025).

9. In particular, Dr Wynn Owen noted how the change from living with family to motel accommodation was very difficult for the respondent:[49]

   because the curfew requires you, essentially, to stay in your room. It's like returning to a cell, and I can understand that that would be particularly difficult for somebody like [the respondent] to deal with and to see as a very onerous additional constraint

   [49] ts 94 (26 February 2025).

10. Further, Dr Wynn Owen noted that the respondent was not necessarily being supported in how to reintegrate in society in terms of life skills, noting that 'once a week with a psychologist and once a week with a [Community Corrections Officer] is not a lot of support for somebody who has had such a long time in prison'.[50]

Brief summary formulation of violence risk

[50] ts 91 (26 February 2025).

1. As to the respondent's risk of violence in the course of his evidence, Dr Wynn Owen opined as follows:[51]

   [The respondent's] violence risk relates to antisocial personality and attitudes with associated impulsivity and failure to plan, significant institutionalisation leading to high levels of reintegration stress, and substance use. Ongoing antisocial peer associations will reinforce antisocial thinking and behaviour and exacerbate risk.

   [51] Exhibit B, page 328 (Psychiatric report by Dr Wynn Owen dated 23 January 2025, par 71).

1. In his report, Dr Wynn Owen also outlined the following risk scenarios specific to the respondent:[52]

   Violent behaviour is most likely to be associated with stress (eg reintegration stress, unemployment and financial stress, interpersonal stress); and to occur at [times] of conflict (eg being confronted during commission of a criminal act), associated substance use and/or intoxication is [likely]. The violence is likely to involve use of threats and of weapons to engender compliance. The violence is likely to be goal-directed, such as to facilitate the commission of a criminal act or to exact revenge on an individual deemed to have harmed [the respondent] or his family.

   [52] Exhibit B, page 328 (Psychiatric report by Dr Wynn Owen dated 23 January 2025, par 73).

2. In his report, Dr Wynn Owen recorded his view that the imminence of any violent offence was very high, probably within months, if the respondent was to be released unsupervised. He also recorded his opinion as to the likely frequency/duration of violence, the likelihood of future violence, and the issues to be given priority, in the following terms:[53]

   Frequency/duration of violence

   [The respondent's] pattern of instrumental violent offending has usually involved clusters of offences that have continued with high frequency until he is arrested and taken into custody. Non-custodial sanction may not affect the offence cycle.

   Likelihood of future violence

   There is a high likelihood of future violent behaviours. The high relevance of [the respondent's] violence history (frequency and duration), the presence of antisocial personality disorder, violent ideation, substance use disorder, lack of employment, poor treatment response and poor history of response to supervision all contribute to the high likelihood that [the respondent] will commit a new violent offence.

   Future violence; case prioritisation issues

   As previously stated a very high level of intervention will be required to avoid future violent behaviours, this will rely heavily on external constraint. In addition to violence prevention strategies support in maintaining stable accommodation, support in developing pro-social contacts, support in seeking and gaining employment and support to engage with and complete required treatment ([Forensic Psychological Intervention Team] and drug and alcohol counselling) will need to be pro-active and assertive if change is to be achieved. [The respondent's] 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.

   [53] Exhibit B, page 329 (Psychiatric report by Dr Wynn Owen dated 23 January 2025, pars 75 - 77).

3. Dr Wynn Owen provided comment during cross‑examination as to the lack of serious offending during the respondent's time in the community, stating as follows:[54]

   [A]lthough [the respondent] had offended quite rapidly in the past, I don't know that we can put a great deal of weight on nothing having occurred. The offence in relation to going into the shop and the stealing of clothing, which [the respondent] explained to me was not an intentional act, is a concern in that he has leapt into (indistinct) with people in the past, and things that have resulted have been very serious. Substance use, either as a reward to manage stress or just in the moment because … he was seeking pleasure, is a great concern because [the respondent] should know that even one use can precipitate establishment of a habit. And [the respondent] also knows that although he has only been in the community for short periods of time, he has returned rapidly to drug use, and that has been associated with serious offending as well.

Summary

[54] ts 93 - 94 (26 February 2025).

1. In his report, Dr Wynn Owen recorded a summary of his findings in the following terms:[55]

   [The respondent], now aged 39 years, spent a total of 52 days in the community after being declared a High Risk Serious Offender and released to a 5 year Supervision Order in July 2024. During the first, longer period of release [the respondent] lived with his brother and family. He relapsed into heroin use after less than 2 weeks and was a co-offender in stealing $ 1000 worth of clothing from a sports shop one month after release. He was returned to custody having reportedly become overwhelmed by the stress of his living situation and removing his GPS tracking device. Released again 20 days later, to hotel accommodation which he reports he also found very stressful and 'like prison', he relapsed into drug use after less than a week, more quickly than when first released in July 2024. Taking into account [the respondent's] serious offending history, substance use and retail theft are of high relevance as they are indicators of a return to the past offence cycle. The high relevance of the role and influence of antisocial peers, and [the respondent's] limited capacity for peer refusal, has also been highlighted during these short periods of release.

   [The respondent] has only recently engaged with a counselling psychologist to address an array of outstanding criminogenic needs, his treating psychologist reporting that these needs remain unaddressed. Unfortunately the intervention has been on hold since he was placed at Hakea Prison as no suitable counselling facilities are available, it is highly likely that any gains he may already have made, however small, will rapidly be lost.

   [The respondent] is an institutionalised man who has almost no adult life experience outside prison. His short period of recent release significantly highlights the importance of enforced structure to successful reintegration. [The respondent's] unrealistic view of his ability to manage release next time is, as it was previously, based on his positive self-appraisal of his social and interpersonal function in prison, however long term prison function in a familiar, highly structured and regulated environment cannot be extrapolated to a successful return to the community without skills development. It is my opinion that [the respondent] will again struggle to achieve pro-social goals on release unless significantly more reintegration support is available. Pro-social mentoring, for example, if available, would be of assistance.

   [55] Exhibit B, pages 329 - 330 (Psychiatric report by Dr Wynn Owen dated 23 January 2025, pars 79 - 81).

2. Dr Wynn Owen during the course of his oral evidence noted his concern as to the respondent's future if he were made subject to a continuing detention order, stating:[56]

   my concern about [the respondent] is that long-term imprisonment is actually making his risk greater and increasing and exacerbating the skills loss that he has suffered from institutionalisation.

   [56] ts 89 (26 February 2025).

3. Further, during cross examination, Dr Wynn Owen reiterated his concerns in the following terms:[57]

   Well, it is my opinion that remaining in prison consolidates the institutional skill set and continues to maintain that lack of living skills outside in the community or even further erode them. Prison may well protect the community, but it's not going to be helpful for [the respondent's] capacity to reintegrate.

Opinion

[57] ts 92 (26 February 2025).

1. On the basis of Dr Wynn Owen's clinical assessment of the respondent and consideration of the results of the risk assessment tools, Dr Wynn Owen recorded that it was his professional opinion that the respondent presented a high risk of future serious offending if not subject to a restriction order.[58]

Recommendations

[58] Exhibit B, page 330 (Psychiatric report by Dr Wynn Owen dated 23 January 2025, par 83).

1. As to treatment, Dr Wynn Owen recorded his recommendation that the respondent obtain a speciality ADHD assessment, and if treatment were recommended that it ought involve a non-stimulant mediation.[59]

   [59] Exhibit B, page 330 (Psychiatric report by Dr Wynn Owen dated 23 January 2025, par 84(I)).

2. If the respondent was to remain in detention, Dr Wynn Owen recommended participation in an intensive Violence Prevention Program.[60] During oral evidence, Dr Wynn Owen recommended that the respondent engage in the Violence Prevention Program in conjunction with individual treatment, emphasising that:[61]

   without the continuation of the engagement that he has already established with the psychologist, I'm not sure that [the Violence Prevention Program] would be of a great deal of value.

   [60] Exhibit B, page 330 (Psychiatric report by Dr Wynn Owen dated 23 January 2025, par 84(I)).

   [61] ts 89 (26 February 2025).

3. Dr Wynn Owen also emphasised the importance of maintaining the therapeutic relationship between the respondent and his psychologist (Ms Hamlet‑Waller), noting in relation to the suspension of counselling since the respondent's re‑incarceration:[62]

   He had only spent a short time developing a relationship with Ms Hamlet-Waller, five or six sessions, and then due to conditions at Hakea, she was unable to attend, and I think it's incredibly disappointing, because rapport, particularly early on, is quite tenuous, and it's quite easy to lose trust with an individual if you've not been with them for a while ...

   Continuity, trust, and the reinforcement of positive gains ... are lost very, very quickly. It doesn't take very much to reinforce an old negative behaviour pattern or thinking pattern.

   [62] ts 96 (26 February 2025).

4. Dr Wynn Owen recommended that if the respondent was again released on a supervision order, the respondent would need more intensive support than what was offered to him previously, including the involvement of mentors or people who are willing to assist him with life skills, appropriate social interactions and how to manage day‑to‑day situations.[63]

   [63] ts 91 - 92 (26 February 2025).

5. If the respondent was released on a supervision order, Dr Wynn Owen also recommended that the respondent continue to take his prescribed dose of methadone for at least six months, noting that the 'effects of a reduction in dose can be quite insidious'.[64] Dr Wynn Owen further recommended that in the short term following release, an increase in the respondent's methadone dose should be considered.[65]

   [64] ts 88 (26 February 2025).

   [65] ts 88 (26 February 2025).

6. If the respondent was to be released, Dr Wynn Owen opined in relation to accommodation options that:[66]

   the ideal … accommodation would be with family, if he could be sustained within that environment, but it's not just the accommodation. I think accommodation stability will be critical

   [66] ts 94 (26 February 2025).

7. As to supervision and monitoring, Dr Wynn Owen recorded his recommendation that a diary and projections condition be incorporated into the respondent's supervision order if released.  He suggested that a demonstration of structured use of time would be required, which would facilitate discussion about appropriate activities, places and associations to reinforce awareness of high risk situations and assist focus on pro‑social goals.[67] Dr Wynn Owen also noted in the course of his evidence that:[68]

   I think that that additional structure will be essential to him succeeding where he failed on the previous attempt of return to the community.

   One of the features of the degree of institutionalisation that [the respondent] has experienced is incredibly high levels of structure and restriction. And this actually continues to provide structure. It's, for me, a very important reintegration tool. It's not something that would need to be there in the long-term over his – the period of his order, but I think it's absolutely essential to establish routines and to ensure that it's not just after the event, but in the week prior, he is able to discuss with his [Community Corrections Officer] and others what he plans to do, and then to review that the following week.

   [67] Exhibit B, page 330 (Psychiatric report by Dr Wynn Owen dated 23 January 2025, par 84(II)).

   [68] ts 90 (26 February 2025).

8. He further opined that the condition should allow Community Corrections Officer discretion to reduce and or cease diary or projection requirement to facilitate increased self‑management of risk over time.[69]

Evidence of Ms James - treatment progress report

[69] Exhibit B, page 330 (Psychiatric report by Dr Wynn Owen dated 23 January 2025, par 84(II)).

1. A treatment progress report was completed by Ms James, a clinical and counselling psychologist employed by the Department of Justice. Ms James recorded at par 2 of her report that it was prepared so as to provide an overview of the respondent's treatment progress, with a focus on potential gains made by the respondent and areas of outstanding treatment need.

2. Ms James recorded that in preparing her report, she had interviewed the respondent for two hours and five minutes; consulted with Ms Hamlett‑Waller for 35 minutes; consulted with Ms Bennetts for 58 minutes; reviewed the affidavit of Joseph Marc Lloyd affirmed on 26 September 2024; reviewed volume 1 of the book of materials for the contravention proceedings dated 2 January 2025; reviewed the Total Offender Management Solution; reviewed the Community Business Information System; and reviewed the psychiatric report of Dr Wynn Owen dated 23 January 2025.

3. Ms James recorded that the purpose of the assessment was explained to the respondent and other interviewees, and that they had participated with consent, aware that the information obtained would be used in her report.

4. In her report Ms James summarised the respondent's treatment history; prison behaviour since the restriction order application hearing; physical and mental health since the restriction order application hearing; treatment progress since the restriction order application hearing; the respondent's presentation during assessment; and the respondent's account of his treatment progress. She also recorded her opinion as to the respondent's treatment progress; future intervention and management; and her conclusions and recommendations.

Physical and mental health

1. Ms James recorded that the respondent had reported that he was not suffering from any physical or mental health problems.[70]

   [70] Exhibit B, page 309 (Treatment progress report by Ms James dated 30 January 2025, par 10).

2. Ms James also recorded that the respondent had been placed on the methadone program on 26 April 2023; had reduced his prescribed dose prior to his first release on the supervision order; and had reported that upon his return to custody he had returned to his prescribed dose, which he reported he had been taking daily.[71]

Treatment progress

[71] Exhibit B, page 309 (Treatment progress report by Ms James dated 30 January 2025, par 9).

1. Ms James recorded in her report that the respondent had attended five sessions of individual intervention with Ms Hamlett‑Waller since the restriction order hearing. She also recorded that following the imposition of the interim detention order, the respondent had attended a final session with Ms Hamlett‑Waller on 21 October 2024, further sessions having been suspended due to the ongoing contravention proceedings.[72]

   [72] Exhibit B, page 309 (Treatment progress report by Ms James dated 30 January 2025, par 11); ts 97 (26 February 2025).

2. Ms James set out how correspondence with Ms Hamlett‑Waller had suggested that the respondent impressed with a positive attitude towards counselling and motivation to change, including an ability to develop insight through collaborative reflection quickly. However the respondent had struggled to apply strategies consistently. Ms James reported that Ms Hamlett‑Waller had described how she had commenced exploring with the respondent the benefits of structure and routine to assist the respondent avoiding idle time and association with anti‑social peers.[73]

   [73] Exhibit B, page 310 (Treatment progress report by Ms James dated 30 January 2025, par 13).

3. Ms James reported that she had confirmed with Ms Hamlett‑Waller that if the respondent was to be released on a supervision order Ms Hamlett‑Waller could continue to provide individual intervention on a weekly basis, but if the respondent was to be detained on a continuing detention order, the frequency and availability of sessions would depend on his location. Ms James also noted that Ms Hamlett‑Waller had suggested that participation in a Violence Prevention Program would provide more intensive intervention, and may be more beneficial should the respondent be detained.[74]

   [74] Exhibit B, page 310 (Treatment progress report by Ms James dated 30 January 2025, par 13).

4. Ms James recorded her understanding that the respondent had been motivated to continue his substance use counselling sessions through Allied Drug and Alcohol Programs and Treatment (ADAPT) while on the supervision order, but his usual counsellor had been unavailable.[75]

   [75] Exhibit B, page 310 (Treatment progress report by Ms James dated 30 January 2025, par 14).

5. Ms James recorded that Ms Bennetts had confirmed that the respondent had disclosed both heroin and amphetamine use to Ms Bennetts prior to it being detected, noting that this level of honesty had not been previously shown by him. She also recorded Ms Bennetts' report that the respondent had made repeated efforts in terms of his goals in the community, such as trying to obtain a White Card and attempting to make a counselling appointment, but had been sidetracked when he chose to socialise with peers which prevented him completing some of his goals.[76]

Presentation during current assessment

[76] Exhibit B, page 310 (Treatment progress report by Ms James dated 30 January 2025, par 14).

1. Ms James recorded that the respondent had presented as motivated, alert, and well‑engaged throughout his assessment, and that his emotional expression had been consistent with the topics discussed. She recorded that he had become tearful when discussing the potential of being placed on a continuing detention order and when describing feelings of shame in relation to his contraventions.[77]

   [77] Exhibit B, pages 310 - 311 (Treatment progress report by Ms James dated 30 January 2025, par 15).

2. Ms James also recorded in her report that the respondent had attended her interview with handwritten lists which dealt with high‑risk situations, goals for his time in custody, long‑term goals for release, and proposed daily schedules for the first four months of release. The respondent repeatedly admonished himself for not taking the supervision order seriously enough, and she also recorded that he appeared determined to demonstrate high levels of motivation to be compliant in the future.[78]

The respondent's account of treatment progress

[78] Exhibit B, page 311 (Treatment progress report by Ms James dated 30 January 2025, par 16).

1. Ms James also recorded in her report the respondent's account of his treatment progress, which highlighted his positive rapport with his treating psychologist Ms Hamlett‑Waller and positive attitude towards treatment; his development of an understanding of honesty which led to his disclosure of heroin and amphetamine use to Ms Hamlett‑Waller and Ms Bennetts; his reflection that his honesty in disclosing his heroin and amphetamine use was difficult but also a relief; and his understanding of the need to change his thinking, including connection with supportive others to develop a pro‑social lifestyle.[79]

   [79] Exhibit B, page 311 (Treatment progress report by Ms James dated 30 January 2025, pars 17 - 18).

2. In particular, Ms James set out how the respondent had taken meaningful steps to implement skills in comparison to previous releases:[80]

   [The respondent] noted that, from the outside, it may seem like his time on the [supervision order] had been a 'failure'. However, he indicated that he had made many improvements in comparison to previous releases and provided some examples of implementing some of the skills he had learnt in treatment. He noted that, while he chose to use substances with peers on two occasions, he had not actively sought out substances and had avoided acquaintances in the street who he knew could supply him with drugs. He further described experiencing feelings of regret following his lapses. He also noted that he went to all his appointments with his [Senior Community Corrections Officer] and gained insight into the benefit of being on such an Order to help him make positive changes in his life.

   [80] Exhibit B, page 311 (Treatment progress report by Ms James dated 30 January 2025, par 19).

1. Ms James set out the respondent's account of his contraventions, noting that he attributed his contraventions to a combination of lack of employment; difficulty coping with feelings of stress in the context of the supervision order; substance use issues; association with anti‑social peers; interpersonal conflict at his first accommodation; cognitive distortions; and his problematic mindset.[81]

   [81] Exhibit B, pages 311 - 312 (Treatment progress report by Ms James dated 30 January 2025, pars 20 ‑ 25).

2. Ms James also recorded the respondent's account of his risk management strategies. She recorded that the respondent had identified the following as being risk factors for future substance use: unemployment; interpersonal stress at his accommodation; anti‑social peers; illicit substance use; a lack of communication with his Senior Community Corrections Officer; a lack of structure/routine; and unhelpful cognitions. She noted that the respondent had struggled to identify risk factors for violence, but had acknowledged that regular substance use could lead to a return to an anti‑social lifestyle, including the use of violence. She also recorded that the respondent had identified strategies to manage each of these risk factors.[82]

   [82] Exhibit B, pages 312 - 314 (Treatment progress report by Ms James dated 30 January 2025, pars 26 ‑ 34).

3. Ms James described in her report the respondent's release plans, which included remaining single to focus on himself; continuing to take his methadone dose; building routine and structure upon his release, such as purchasing a diary and building a habit of reviewing and adding to his schedule for each upcoming day; listening to his psychologist and any alcohol and other drug counsellors; focusing on his mental health; and focusing on employment, routine, and family relationships.[83]

   [83] Exhibit B, pages 313 ‑ 314 (Treatment progress report by Ms James dated 30 January 2025, pars 30 ‑ 35).

4. Mr James also in her report described the respondent's plans if detained on a continuing detention order, which included continuing to engage in the strategies already implemented and exercise, along with participating in a Violence Prevention Program, although the respondent noted that he considered individual counselling to be more beneficial.[84]

Opinion

Treatment progress

[84] Exhibit B, page 314 (Treatment progress report by Ms James dated 30 January 2025, par 35).

1. Ms James opined that the factors that contributed to the respondent's contraventions included association with anti‑social peers; substance use to cope with stress and paranoia, and to connect with peers; employment issues; interpersonal issues at his accommodation; anti‑social attitudes and cognitive distortions; and issues with executive functioning and impulsivity. She noted that the respondent's insight into these factors was sound.[85]

   [85] Exhibit B, page 314 (Treatment progress report by Ms James dated 30 January 2025, pars 36 - 37).

2. Ms James noted that the respondent lacked insight into identifying high‑risk associates; romantic relationships; and substance use for emotional management.[86]

   [86] Exhibit B, pages 314 - 315 (Treatment progress report by Ms James dated 30 January 2025, pars 38 ‑ 40).

3. Ms James opined that the respondent's opportunity for treatment gains since the restriction order hearing was limited by the brevity of his engagement, with all previously identified treatment needs remaining outstanding.[87] However, Ms James did acknowledge that progress was being made by the respondent, and that he remains in a good position to continue to benefit from individual intervention.[88]

   [87] Exhibit B, page 315 (Treatment progress report by Ms James dated 30 January 2025, par 41). See also Exhibit A, pages 229 - 268 (Psychological report by Dr Tara Yewers dated 21 March 2024); Exhibit A, pages 269 - 292 (Psychiatric report by Dr Wynn Owen dated 16 April 2024); Exhibit A, pages 293 ‑ 295 (Forensic Psychological Intervention Team treatment progress report of Ms Hamlett‑Waller dated 21 October 2024).

   [88] Exhibit B, page 315 (Treatment progress report by Ms James dated 30 January 2025, par 41).

4. Ms James summarised the respondent's treatment progress as being in the preparation stage of change:[89]

   [The respondent's] ability to translate his insights into consistent behavioural change and manage challenges in the community is still emerging. He will require repeated practice with significant supports if he is to move from the Preparation stage of change to the Action stage of change. Namely, [the respondent] has made positive, observable changes, but these changes are recent, and lapses have frequently occurred.

Future intervention and management

[89] Exhibit B, page 315 (Treatment progress report by Ms James dated 30 January 2025, par 42).

1. Ms James opined that if the respondent was to be detained on a continuing detention order that he be assessed for participation in a Violence Prevention Program. Upon completion of this program, Ms James recommended that the respondent should recommence individual intervention with Ms Hamlett‑Waller to reinforce his learnings and assist him in preparing for potential release.[90]

   [90] Exhibit B, pages 315 - 316 (Treatment progress report by Ms James dated 30 January 2025, par 43).

2. During the course of Ms James' evidence, it was acknowledged that if the respondent was to be subject to a continuing detention order his location of detention would affect the availability of both the Violence Prevention Program and individual intervention sessions with Ms Hamlett‑Waller.[91] Ms James noted that should the respondent remain classified as a maximum security prisoner, the next available Violence Prevention Program that he could attend would be at Casuarina Prison in quarter 4. If the respondent was to be classified as a medium security prison, then the next available Violence Prevention Program would be in March 2025, and which program would take about eight to 10 months to complete.[92] Ms James also gave evidence to the effect that best practice would not be to concurrently offer the respondent individual counselling and a group therapy program.[93]

   [91] ts 97 (26 February 2025).

   [92] ts 97 ‑ 99 (26 February 2025).

   [93] ts 99 ‑ 101 (26 February 2025).

3. Ms James opined that if the respondent was to be placed on a supervision order he could resume individual intervention on a weekly basis with Ms Hamlett‑Waller, and attend regular substance use counselling. Ms James opined that the respondent would need strict external controls and accountability to support his reintegration into the community, such as use of a diary to pre‑plan each day. Ms James also opined that the respondent should be supported and encouraged to access meaningful employment as soon as possible.[94]

   [94] Exhibit B, page 316 (Treatment progress report by Ms James dated 30 January 2025, par 44).

4. Ms James recommended that if the respondent was to be placed on a supervision order, he ought discuss his ADHD symptoms with his doctor and potentially obtain a specialised assessment and/or medication. Further, the respondent should explore strategies with his Senior Community Corrections Officer and psychologist to manage his symptoms.[95]

   [95] Exhibit B, page 316 (Treatment progress report by Ms James dated 30 January 2025, par 45).

5. Ms James recommended, regardless of whether the respondent is subject to a supervision order or continuing detention order, that he remains on the methadone program, and only makes adjustments to dosage in consultation with his doctor and after an extended period of stability in the community.[96]

Conclusions and recommendations

[96] Exhibit B, page 316 (Treatment progress report by Ms James dated 30 January 2025, par 46).

1. Ms James concluded her report by reporting as follows:[97]

   [The respondent] engaged meaningfully in individual intervention with Ms Hamlett-Waller. Over the six sessions to date, they developed a positive therapeutic relationship and started addressing salient treatment needs in the areas of substance use, relationships, and antisocial attitudes. [The respondent] has demonstrated a capacity for change in his improved prison behaviour, honesty about his substance use, implementation of feedback in terms of developing schedules and goals, and maintaining a positive attitude towards supervision and treatment, notwithstanding his contravention behaviours and noncompliance with the conditions of [his supervision order]. Given the brevity of [the respondent's] engagement in treatment so far, he has had limited opportunity to make treatment gains and remains in the early stages of change. [The respondent] has a range of outstanding treatment needs and, as such, intervention should remain a component of any Restriction Order imposed by the court.

Evidence of Ms Bennetts - adults community corrections performance report

[97] Exhibit B, page 316 (Treatment progress report by Ms James dated 30 January 2025, par 47).

1. An adult community corrections performance report was prepared by Ms Bennetts, a Senior Community Corrections Officer within the Community Offender Monitoring Unit of the Department of Justice, and was endorsed by Aimee Goode, a team leader within the Community Offender Monitoring Unit, and Sarah Turner, the acting director of the Community Offender Monitoring Unit.

2. Ms Bennetts recorded in her report that in its preparation, she had relied upon ongoing contact with the respondent; Departmental records; the Total Offender Management System prison database; her affidavit sworn on 24 September 2024; the treatment progress report prepared by Ms Hamlett‑Waller; her contact with Ms Hamlett‑Waller; the treatment progress report prepared by Ms James; a telephone call with Ms James on 15 January 2025; liaison with the Victim‑offender Mediation Unit; email contact with Department of Communities ‑ Housing; telephone contact with the respondent's long‑term family friend on 12 February 2025; an accommodation assessment undertaken with the respondent's long‑term family friend on 10 September 2024; the psychiatric report prepared by Dr Wynn Owen; and telephone contact with Dr Wynn Owen on 16 January 2025.

3. Ms Bennetts addressed in her report the respondent's current situation and progress while subject to the supervision order, including the respondent's response to supervision; non‑compliance with the supervision order; psychological counselling; housing instability; anti-social peer associations; prison conduct; the proposed community supervision plan including contact with the respondent, intervention, employment, informal supports, and accommodation; the behaviours to be managed; the strategies to manage offending behaviours including treatment, support and structure, monitoring of movements and associations, review of mobile telephone, alcohol and substance use, curfew, and interagency liaison and risk management.

4. Ms Bennetts noted that her report was to be read with the reports of Dr Wynn Owen and Ms James, and was intended to provide further information to her earlier affidavit sworn 24 September 2024 (which I considered in The State of Western Australia v Roffey [No 3] at [28] ‑ [42]).

Current situation and progress while subject to the supervision order

Response to supervision

1. Ms Bennetts recorded that the respondent's response to the supervision order had been mixed, but in comparison to previous periods of community supervision his compliance was improved. In particular, the respondent had participated in an employment trial which was a first for the respondent.[98]

   [98] Exhibit B, page 332 (Adult community corrections performance report by Ms Bennetts dated 19 February 2025, page 2).

2. Ms Bennetts noted that the respondent's treatment intervention had been inclusive of Forensic Psychological Intervention Team psychological counselling and monitoring of his illicit substance abstinence. She recorded that the respondent had failed to engage with support (as planned) which was offered by the ADAPT through Cyrenian House. In this regard, the respondent had explained that he had attended one session when in the community but had disengaged due to poor rapport built with the allocated counsellor. She noted however that the respondent had demonstrated initiative by contacting Holyoke to arrange the same ADAPT program, but he had again failed to engage with the service as directed.[99]

   [99] Exhibit B, page 332 (Adult community corrections performance report by Ms Bennetts dated 19 February 2025, page 2).

3. Ms Bennetts described how the respondent has engaged with ReSet for integration support while in custody, but had disengaged upon release into the community, even following attempts that had been made by the Community Offender Monitoring Unit to bridge the communication gap between the respondent and ReSet. Ms Bennetts noted that a fresh referral to ReSet would need to be completed for the respondent to re‑engage should he be released, while also noting that the respondent had only expressed motivation to re‑engage in the community.[100]

   [100] Exhibit B, page 332 (Adult community corrections performance report by Ms Bennetts dated 19 February 2025, page 2).

4. Ms Bennetts reported that the respondent had positively engaged in his twice weekly supervision sessions, particularly in disclosing his associations and movements in the community after the fact. However, the respondent had not been honest about illicit substance use until after the fact. When the respondent did self‑disclose his drug use, he was mindful of the factors that led him to drug use and strategies to assist him, but failed to implement such strategies prior to his return to custody.[101]

Non-compliance with the supervision order

[101] Exhibit B, pages 332 - 333 (Adult community corrections performance report by Ms Bennetts dated 19 February 2025, pages 2 - 3).

1. In her report Ms Bennetts affirmed the views set out in her earlier affidavit, specifically her ongoing concern regarding the respondent's disconnect with his accommodation; relationship with his brother and sister‑in‑law; anti‑social peer associations; limited pro‑social community supports; and lack of engagement with formal support services.[102]

Psychological counselling

[102] Exhibit B, page 333 (Adult community corrections performance report by Ms Bennetts dated 19 February 2025, page 3).

1. Among other things, Ms Bennetts reported that the respondent had attended counselling sessions with Ms Hamlett‑Waller to address his criminogenic needs, having attended four sessions while in the community before the service was suspended due to his detention in custody.[103]

Housing instability

[103] Exhibit B, page 333 (Adult community corrections performance report by Ms Bennetts dated 19 February 2025, page 3).

1. Ms Bennetts recorded that upon his release on his supervision order the respondent commenced living with his brother and sister‑in‑law, and their two children aged 10 and 12. The respondent reported becoming dissatisfied with this placement within 16 days of release, claiming that his sister‑in‑law accused him of engaging in drug and alcohol use, as well as not engaging in family discussions and isolating himself in his room. While the respondent's sister‑in‑law indicated in a telephone call with Ms Bennetts during this time that she did not have any of these concerns, she did express having been concerned about the respondent's institutionalised behaviours and inability to follow house rules. Ms Bennetts recorded that the respondent's accommodation issues had been discussed during supervision sessions, however at the time there was not another viable option.[104]

   [104] Exhibit B, page 334 (Adult community corrections performance report by Ms Bennetts dated 19 February 2025, page 4).

2. Ms Bennetts described how the respondent had attributed his removal of his electronic monitoring device to the stressors he was experiencing living at this accommodation, and that he had no longer wanted to live there. Following the respondent's return to custody, Ms Bennetts recorded that his sister‑in‑law had withdrawn her offer of ongoing accommodation.[105]

   [105] Exhibit B, page 334 (Adult community corrections performance report by Ms Bennetts dated 19 February 2025, page 4).

3. Ms Bennetts described how upon the respondent's re‑release on 30 August 2024, he had been placed in emergency hotel accommodation. She also noted that the respondent was reported as struggling with this accommodation type because he was away from his family and given its temporary nature.[106]

   [106] Exhibit B, page 334 (Adult community corrections performance report by Ms Bennetts dated 19 February 2025, page 4.

4. Ms Bennetts reported that the respondent now proposed to reside with his long‑term family friend and her adult daughter. A desktop spatial analysis of their address  was conducted by WA Police. No significant impediments were identified.[107]

Anti-social peer associations

[107] Exhibit B, pages 334 - 335 (Adult community corrections performance report by Ms Bennetts dated 19 February 2025, pages 4 - 5); ts 104 (26 February 2025).

1. Among other things, Ms Bennetts described how the respondent had been open in discussions regarding his associations in the community and had disclosed using heroin of his own accord and admitted to being able to source this substance from known anti‑social peers. Ms Bennetts noted that the respondent had failed to engage peer refusal skills when offered illicit substances and had demonstrated an inability to remove himself from those who are under the influence.[108]

Prison conduct

[108] Exhibit B, page 335 (Adult community corrections performance report by Ms Bennetts dated 19 February 2025, page 5).

1. Ms Bennetts reported on the respondents conduct while in prison, both while remanded in custody and when subject to an interim detention order. She noted that he was found to be out of bounds on two occasions and had received a loss of privileges on each occasion.[109]

   [109] Exhibit B, pages 335 ‑ 336 (Adult community corrections performance report by Ms Bennetts dated 19 February 2025, pages 5 - 6).

2. Ms Bennetts reported that the respondent had commenced employment as a temporary cleaner on 28 November 2024. Ms Bennetts confirmed from her communications with the respondent that as at 9 January 2025, he remained employed in this position, where he assists with cleaning duties as well as meal deliveries. Ms Bennetts recorded that the respondent had told her that he had been enjoying the routine of his employment, and had been hoping to save enough money to pay for his White Card course.[110]

   [110] Exhibit B, page 336 (Adult community corrections performance report by Ms Bennetts dated 19 February 2025, page 6).

3. Ms Bennetts noted that the respondent had been subject to urinalysis testing while in prison on multiple occasions. All tests had been negative for illicit substances and positive for methadone in a manner consistent with his treatment regime.[111]

   [111] Exhibit B, page 336 (Adult community corrections performance report by Ms Bennetts dated 19 February 2025, page 6).

4. Ms Bennetts reported that the respondent has been visited by his mother, sister and his sister's young child on a monthly basis.[112]

Proposed community supervision plan

Contact with the respondent

[112] Exhibit B, page 336 (Adult community corrections performance report by Ms Bennetts dated 19 February 2025, page 6).

1. Ms Bennetts reported that the respondent had engaged positively in regular custodial visits, and that he had reflected on numerous occasions that he had had a lack of serious comprehension of the supervision order conditions or the corresponding consequences should he fail to comply. Ms Bennetts reported that she has discussed strategies with the respondent that he might implement to assist with his release. However, she also recorded that the respondent's plans remained very similar to those he had made in 2024.[113]

Intervention

[113] Exhibit B, page 336 (Adult community corrections performance report by Ms Bennetts dated 19 February 2025, page 6).

1. It was submitted that to ensure the adequate protection of the public, the respondent should be made subject to a continuing detention order under s 55(1)(a) of the High Risk Serious Offenders Act.[142]

   [142] State's outline of submissions, par 87.

Has the respondent contravened the supervision order as alleged?

1. I now turn to consider whether the respondent contravened the supervision order as alleged.

2. In addressing whether the court should be satisfied that the respondent had contravened the supervision order, the State relied upon the certified copies of the prosecution notices which (with two exceptions) recorded the respondent's convictions in the Magistrates Court and the penalties imposed, as well as the transcripts of the sentencing proceedings. As was noted in the submissions filed on behalf of the State in advance of the hearing, evidence of the same may be given in a court by the production of such documents under s 80(c) of the Evidence Act 1906 (WA), and received into evidence by this court pursuant to s 84(2)(c) and (5)(b) of the High Risk Serious Offenders Act.[143]

   [143] State's outline of submissions, pars 60 - 61.

3. Having regard to the evidence before me, I am satisfied on the balance of probabilities that the respondent contravened the supervision order on seven occasions, as alleged.

4. For the sake of completeness, I have included in the overview below reference to charges and convictions for offending which arose from the same facts that grounded a charge and conviction for a breach of the supervision order. However, the additional charges and convictions were not considered when I turned my mind to the question of whether the respondent had contravened the supervision order.

Contraventions 1 - 2 (PE 40402/24 - 40403/24)

1. The respondent must comply with condition 22 of the supervision order which provides that the respondent must 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 the respondent by a person duly authorised under the Medicines and Poisons Act 2014 (WA), and the respondent's use is in accordance with the instructions of the prescriber.

2. The respondent must also comply with condition 28 of the supervision order which provides that the respondent must provide a valid sample pursuant to condition 27, which provides that the respondent must attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the Community Corrections Officer or by a police officer including accompanying such persons to an appropriate location for such testing to take place.

3. From the statement of materials facts for charges PE 40402/24 ‑ 40403/24, I understood that on 12 July 2024 the respondent reported to East Perth Adult Community Corrections as directed for the purpose of submitting a urinalysis test, which he complied with and provided a sample.

4. On 15 July 2024 the respondent attended East Perth Adult Community Corrections for an unscheduled meeting and was directed to complete a urinalysis test. The respondent provided a sample, however the integrity of the sample could not be established at the point of collection due to the temperature of the sample provided being outside the accepted criterion. The respondent denied any use of a device to conceal his urine sample.

5. On 16 July 2024 the respondent attended a meeting with his Senior Community Corrections Officer. During the meeting the respondent admitted to the use of heroin on two occasions the previous week. Further, the respondent admitted to consuming a liquid drink prior to his urinalysis test on 12 July 2024 and 15 July 2024 for the purpose of concealing the detection of heroin in his urine.

6. On 17 July 2024 the results of the urinalysis screening was received and found to be positive for morphine. The concentration of the sample was 1795 ug/L. The threshold for morphine is 300 ug/L. The report indicated that this result suggested that the morphine present in the sample was derived from the use of a preparation containing morphine of heroin.

7. On 19 July 2024 WA Police arrested the respondent and charged him with one count of having used a prohibited drug, namely heroin, contrary to s 6(2) of the Misuse of Drugs Act, and one count of contravening a requirement of a supervision order contrary to s 80(1) of the High Risk Serious Offenders Act. It was alleged that condition 22 and condition 28 of the supervision order had been breached. The respondent was convicted on both charges on his pleas of guilty on 19 July 2024 before a magistrate.[144] In those circumstances, I am satisfied to the requisite standard that the respondent contravened conditions 22 and 28 of the supervision order.

Contraventions 3 - 4 (PE 44702/24 - 44703/24 and PE 47004/24)

[144] Exhibit A, pages 166 - 177.

1. The respondent must comply with standard condition 7 of the supervision order, which provides that he must be subject to electronic monitoring under s 31 of the High Risk Serious Offenders Act.

2. The respondent must also comply with condition 23 of the supervision order which provides that the respondent must be subject to a curfew, pursuant to s 32 of the High Risk Serious Offenders Act, such that the respondent is to remain at and not leave his approved address as directed by a Community Corrections Officer from time to time. The respondent's curfew hours were 6:00 pm to 6:00 am.

3. From the statement of material facts for charges PE 44702/24 ‑ 44703/24 and PE 47004/24, I understood that on 9 August 2024 at 7:51 pm the respondent forcibly removed his electronic monitoring device from his ankle.

4. On 10 August 2024 the accused was located walking along train tracks in Whiteman. WA Police arrested the respondent and charged him with one count of criminal damage or destruction of property contrary to s 444(1)(b) of the Criminal Code (WA), and one count of contravening a requirement of a supervision order contrary to s 80(1) of the High Risk Serious Offenders Act. It was alleged that standard condition 7 of the supervision order had been breached.

5. Further, on 23 August 2024 WA Police conferred a further charge on the respondent of one count of contravening a requirement of a supervision order contrary to s 80(1) of the High Risk Serious Offenders Act. It was alleged that condition 23 of the supervision order had been breached.

6. The respondent was convicted on all charges on his pleas of guilty on 30 August 2024 before a magistrate.[145] In those circumstances, I am satisfied to the requisite standard that the respondent contravened conditions 7 and 23 of the supervision order.

Contravention 5 (PE 49045/24)

[145] Exhibit A, pages 178 ‑ 197, 201.

1. The respondent must comply with standard condition 4 of the supervision order which provides that the respondent must be under the supervision of a Community Corrections Officer, which includes, complying with any reasonable direction of the officer (which includes direction for the purposes of s 31 or s 32 of the High Risk Serious Offenders Act).

2. From the statement of material facts for charge PE 49045/24, I understood that on 30 August 2024 the respondent was issued with a written lawful instruction by his Community Corrections Officer which instructed him to reside at a specific hotel. It included the instruction that the respondent is not permitted to have any visitors in his room or at the property. The respondent signed the instruction indicating that he understood the instruction.

3. On 3 September 2024 the respondent attended the Serious Offender Management Squad, where a review of the respondent's mobile telephone was conducted. The review identified a number of photographs with the respondent and other people at a gym. The respondent identified the people in the photographs as his friends and the gym as being part of the specific hotel the subject of the instruction. The photographs were taken on 1 September 2024.

4. WA Police charged the respondent with one count of contravening a requirement of a supervision order contrary s 80(1) of the High Risk Serious Offenders Act. It was alleged that condition 4 to the supervision order had been breached. The respondent was convicted on his plea of guilty on 5 September 2024 before a magistrate.[146] In those circumstances, I am satisfied to the requisite standard that the respondent contravened condition 4 of the supervision order.

Contravention 6 (PE 50287/24 - 50288/24)

[146] Exhibit A, pages 203 - 213.

1. The respondent must comply with condition 22 of the supervision order which provides that the respondent must not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act applies, including, but not limited to, cannabis, unless the drug has been prescribed for the respondent by a person duly authorised under the Medicines and Poisons Act, and the respondent's use is in accordance with the instructions of the prescriber.

2. From the statement of material facts for charges PE 50287/24 ‑ 50288/24, I understood that on 4 September 2024 the respondent reported to East Perth Adult Community Corrections as directed for the purpose of submitting a urinalysis test, which he complied with and provided a sample.

3. On 9 September 2024 the results of the urinalysis screening were received and found to be positive for amphetamine and methylamphetamine. The concentration amphetamine in the sample was 1095 ug/L. The threshold for amphetamine is 150 ug/L. The concentration of methylamphetamine in the sample was greater than 5000 ug/L. The threshold for methylamphetamine is 150 ug/L.

4. On 10 September 2024 WA Police arrested the respondent and charged him with one count of contravening a requirement of a supervision order contrary to s 80(1) of the High Risk Serious Offenders Act, and one count of using a prohibited drug contrary to s 6(2) of the Misuse of Drugs Act. It was alleged that condition 22 of the supervision order had been breached. The respondent was convicted on both charges on his plea of guilty on 9 October 2024 before a magistrate.[147] In those circumstances, I am satisfied to the requisite standard that the respondent contravened condition 22 of the supervision order.

Contravention 7 (PE 50289/24)

[147] Exhibit A, pages 214 ‑ 215, 218 ‑ 220, 222 - 228; ts 84 (26 February 2025).

1. The respondent must comply with condition 4 of the supervision order which provides that the respondent must be under the supervision of a Community Corrections Officer, which includes, complying with any reasonable direction of the officer (which includes a direction for the purposes of s 31 or s 32 of the High Risk Serious Offenders Act).

2. From the statement of material facts for charge PE 50289/24, I understood that on 30 August 2024 the respondent was released from custody and placed into emergency accommodation.

3. On 2 September 2024 the respondent was relocated to another emergency accommodation location and re‑issued a written lawful instruction which the respondent initialled and signed. It instructed the respondent to be in attendance and not to leave his designated residence between the hours of 6:00 pm and 6:00 am.

4. On 4 September 2024 the respondent received a warning for breaching the instruction.

5. On 7 September 2024 at 6:00 pm an alert was received by the electronic monitoring global positioning system (GPS) indicating that the respondent was not at his designated address per the instruction. The respondent's monitor restored his location at 6:04 pm.

6. On 10 September 2024 WA Police arrested the respondent and charged him with one count of contravening a requirement of a supervision order contrary to s 80(1) of the High Risk Serious Offenders Act. It was alleged that condition 4 of the supervision order had been breached. The respondent was convicted on his plea of guilty on 9 October 2024 before a magistrate.[148] In those circumstances, I am satisfied to the requisite standard that the respondent contravened condition 4 of the supervision order.

Uncharged contraventions

[148] Exhibit A, pages 216 ‑ 228; ts 84 (26 February 2025).

1. The State did not make submissions regarding uncharged contraventions of the supervision order which resulted in alternative breach actions other than a formal charge. However, evidence of such contraventions were adduced through the affidavit of Ms Bennetts affirmed on 25 September 2024.[149] I did not consider these uncharged contraventions in reaching my conclusion that the respondent had contravened the supervision order on seven occasions.

Further offending

[149] Exhibit C, pages 5 - 6 (Affidavit of Ms Bennetts affirmed 25 September 2024, par 11).

1. I summarise below the respondent's conviction for offending which did not arise from the same facts which led to the contraventions of the supervision order (described above). I did not consider this offence when I determined whether the respondent had contravened his supervision order as it had no relevance to the question. However, I was cognisant of the circumstances of this offence when determining the overall question of whether the supervision order should be rescinded, affirmed, amended or extended.

2. From the statement of material facts for charge PE 47005/24, I understood it was alleged that on 1 August 2024 the respondent entered a sports store in company with four co‑offenders. The respondent walked around the store acting as a look‑out while two of the co‑offenders selected several items of clothing over several minutes. The respondent then selected several items of clothing, before handing them to one of the female co‑offenders, who had already gathered a large quantity of clothing. The respondent exited the store, followed by the co‑offenders, who made no attempt to pay for any of the items. The items removed were valued at $1,068.89.

3. On 23 August 2024 WA Police charged the respondent with one count of stealing contrary to s 378 of the Criminal Code. The respondent was convicted of the charge on his plea of guilty on 30 August 2024 before a magistrate.[150]

   [150] Exhibit A, pages 185 ‑ 195, 198 ‑ 202.

Should the supervision order be rescinded, affirmed, amended or extended?

1. As I found that the respondent contravened conditions of the supervision order, it was necessary to consider what action to take pursuant to s 55(1) of the High Risk Serious Offenders Act.

2. I proceeded cognisant that in the absence of restriction, the respondent remains at high risk of committing a violent offence, including a serious offence within the meaning of the High Risk Serious Offenders Act. For the purposes of the contravention proceedings, it was to be assumed that the respondent remains a high risk serious offender, and that I was not required to make that determination again.

3. I was cognisant that I was required to make an order which was the least invasive, while still protecting the community adequately from the unacceptable risk the respondent were to pose if he were not under restriction. Further, in deciding which order to make, the paramount consideration is to be the need to ensure adequate protection of the community.

4. Before determining that the supervision order should not be rescinded, I had to be satisfied that a supervision order would adequately protect the community against the unacceptable risk that the respondent would commit a serious offence. I was also required to be satisfied that the respondent would substantially comply with the standard conditions of the supervision order. As noted above, the standard conditions include the requirement that the offender be under the supervision of a Community Corrections Officer and comply with any reasonable direction of the officer (including a direction for the purposes of s 31 (electronic monitoring) and s 32 (curfew)); not commit a serious offence during the period of the supervision order; and to be subject to electronic monitoring under s 31.

5. The court could not release the respondent on a supervision order unless satisfied, on the balance of probabilities, that he would substantially comply with the standard conditions of the supervision order, the onus of establishing which was on the respondent. On the evidence before me, the respondent had not discharged that onus. In so concluding, I weighed the following in the balance.

6. First, I had regard to the respondent's recent performance while subject to the supervision order. This weighed heavily against the affirmation of his supervision order.

7. Since his release subject to the supervision order on 1 July 2024 until the hearing of the contravention application on 26 February 2025, the respondent had spent 52 days in the community.[151] His recent performance while released was troubling.

   [151] Exhibit B, page 329 (Psychiatric report by Dr Wynn Owen dated 23 January 2025, par 79).

8. The respondent offended by use of a prohibited drug relatively promptly upon his release in July 2024. While released on the supervision order, he was charged with 10 offences. Convictions were entered in respect of all charges. Of the 10 offences, as recorded in these reasons, the respondent offended by seven contraventions of conditions of the supervision order.

9. Secondly, despite the conditions that had been imposed (which were stringent and extensive, and tailored to address the respondent's risk factors), the respondent contravened them and was convicted of non‑contravention offences. Three of the respondent's contraventions (Contraventions 3, 5 and 7) related to non‑compliance with a standard condition of the supervision order, specifically the requirement:

   (1)to comply with a reasonable direction of the respondent's Community Corrections Officer; and

   (2)to be subject to electronic monitoring.

10. Thirdly, I did not understand there to be any issue with the respondent's physical or cognitive capacity to comply with the conditions that had been imposed.

11. Fourthly, despite engagement with his psychologist and Community Corrections Officer, appearances before the Magistrates Court, a period remanded in custody, and the entry of convictions in August 2024, the respondent again in September 2024 engaged in conduct which was in breach of conditions of the supervision order and committed a further non‑contravention offence (use of amphetamine).

12. I accepted that the factors that contributed to the respondent's contraventions and other offences included those identified by Ms James, recorded at [100] ‑ [101] above.[152]

    [152] Exhibit B, page 314 (Treatment progress report by Ms James dated 30 January 2025, par 36).

13. Fifthly, I accepted that while the respondent now has a clear appreciation for the need to strictly observe the conditions of his supervision order, upon release he struggled to comply and his identified treatment needs were and remain outstanding. They include substance use, issues with employment, anti‑social attitudes, anti‑social peers, issues in interpersonal relationships, impulsivity, compliance with supervision, emotion regulation, and adjustment issues due to being heavily institutionalized.[153]

    [153] See [102] above; Exhibit B, page 315 (Treatment progress report by Ms James dated 30 January 2025, par 41).

14. The evidence suggests that the respondent has a sound understanding of most of the risk factors that led to the breaches of his supervision order.[154] However, the respondent has difficulty translating his insights into consistent behavioural change. I accepted that this was due to a lacuna between the understanding of the risks and the need to change (the preparation stage of change), and the ability of the respondent to implement strategies to effect change (the action stage of change).

    [154] Exhibit B, page 314 (Treatment progress report by Ms James dated 30 January 2025, pars 36 - 37).

15. I was not concerned that the respondent was likely to deliberately flout the conditions. His attitude, motivation to pursue a pro‑social lifestyle, and growing insight were encouraging. That said, I was concerned that the evidence revealed that the respondent lacked the skills and therefore the capacity to comply with the conditions when faced with the stressors and factors identified by Ms James, recorded at [100] ‑ [101] above. The respondent's use of illicit substances were of particular concern given the link between his substance use and his past offending cycle, as was the removal of his electronic monitoring device.

1. Sixthly, I noted that additional conditions had been suggested. Suitable accommodation was also available to the respondent upon release (putting the respondent in a better position than when he was released to emergency accommodation after being remanded in custody for offences committed in August 2024). He also has some prospect of receiving employment. These matters weighed in favour of a finding that the court could be satisfied that, on the balance of probabilities, the respondent would substantially comply with the standard conditions of the supervision order.

2. Seventhly, the respondent had again expressed willingness to participate in treatment. As was recorded by Ms Hamlett‑Waller, the respondent had reported a willingness to re‑engage with his current Forensic Psychological Intervention Team psychologist in custody or in the community (see [33] above).

3. The supervision order was effective in so far as the respondent did not commit a serious offence while in the community. However, as had been noted by Dr Wynn Owen, his prompt return to substance use and association with anti‑social peers were indicators of a return to his past offending cycle. On balance, in all of the circumstances, I could not be satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions of the supervision order. Further, I was concerned that the respondent's risk of future violent offending remained in the highest risk category, and I accepted Dr Wynn Owen's opinion that the respondent most likely will return to violent offending when he is stressed, at times of conflict and when intoxicated by drugs or alcohol.[155]

   [155] Exhibit B, page 328 (Psychiatric report by Dr Wynn Owen dated 23 January 2025, par 73).

4. Unfortunately, despite the availability of suitable accommodation, the potential for employment and the utility of the suggested additional conditions, when regard was had to all of the evidence, I was not satisfied that a supervision order (amended or extended) would adequately protect the community against the unacceptable risk that the respondent will commit a serious offence.

Conclusion, orders and recommendations

1. For these reasons, the supervision order will be rescinded and the respondent will be subject to a continuing detention order under the High Risk Serious Offenders Act.

2. Evidence was given in the course of the contravention hearing as to the steps necessary to advance the rehabilitation of the respondent and his care and treatment should he be placed on a continuing detention order. I share Dr Wynn Owen's concern that this further period of detention may be detrimental to the respondent and his prospects of successful reintegration. In response to the same, I make the following observations and recommendations.

3. First, every effort should be made to ensure that the respondent is promptly assessed for participation in the Violence Prevention Program, which I understand contains a substance use module. If assessed as being suitable for participation, the respondent ought begin that program at the next intake (on 25 March 2025) or immediately thereafter. In any event, as a minimum, individual intervention (ideally with Ms Hamlett‑Waller) should recommence, on a weekly basis. Among other things, it remains a concern that the respondent did not recognise while in the community that stress and a lack of structure were factors which contributed to his recent drug use.

4. Secondly, I acknowledge that the evidence reveals that the respondent has begun the path towards rehabilitation. Given his long periods of incarceration, the respondent had had relatively little experience of supervision while in the community. It is unsurprising that he experienced significant challenges with reintegration into the community and with developing a pro‑social lifestyle. Prior to the review hearing, it will be imperative that the respondent be pro‑actively assisted in investigating and securing all available support and scaffolding that might be provided to aid him in adjusting and building his life.

5. That is, before his next review hearing, the respondent ought be offered assistance in identifying the services and supports that might be made available to him, in addition to his participation in the Violence Prevention Program, together with regular meetings with a Community Corrections Officer and treating psychologist (if possible, Ms Hamlett‑Waller). Ideally, as was suggested by Dr Wynn Owen, the respondent would have available to him something of a mentor who might intensively work with the respondent, for example, to guide him through the steps necessary to secure his White Card and aid him in preparation for and in adjusting to a life outside of a custodial/detention setting.[156]

   [156] ts 92 (26 February 2025).

6. Thirdly, in light of the observations made by Dr Wynn Owen reproduced at [53] and [54] of these reasons, the respondent should be assessed by a specialist to ascertain if he has ADHD. If so diagnosed, a treatment plan ought be developed and implemented in consultation with his Community Corrections Officer and treating psychologist, but which ought involve a non‑stimulant medication.

7. Finally, the respondent ought be encouraged to remain on the methadone program.

Schedule 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

1. 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

1. 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;

2. 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

1. 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;

2. 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

1. 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;

2. 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;

3. 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

1. Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information;

2. 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

1. 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;

2. 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;

3. 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

1. 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;

2. 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

1. 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;

2. 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;

3. 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

1. Not to associate with any person who may fit the criteria of being a co-offender when you previously committed any robbery offence;

2. 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;

3. Provide a valid sample pursuant to Condition 27;

4. Not purchase, or possess, or consume or use alcohol, unless approved in advance by a CCO;

5. 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;

6. 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;

7. 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;

8. 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;

9. 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;

10. 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;

11. 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;

12. 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;

13. 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

1. 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;

2. 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

3. 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.

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

CR

Associate to the Honourable Justice Strk

7 MARCH 2025