The State of Western Australia v Sandon [No 3]

[2023] WASC 148

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- SANDON [No 3] [2023] WASC 148

CORAM:   LUNDBERG J

HEARD:   14 FEBRUARY 2023

DELIVERED          :   17 MAY 2023

FILE NO/S:   SO 9 of 2022

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

MATHEW JOHN SANDON

Respondent

Catchwords:

Criminal law - High Risk Serious Offenders Act 2020 (WA) - Restriction order application seeking orders pursuant to s 48(1) High Risk Serious Offenders Act 2020 (WA) - Respondent has extensive criminal record including for violent robbery offences - Respondent found to be a high risk serious offender - Community capable of being adequately protected by the making of a supervision order subject to standard conditions and certain additional conditions

Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

Supervision order made

Category:    B

Representation:

Counsel:

Applicant	:	Ms F M Allen
Respondent	:	Mr T J McCulloch

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Legal Aid (WA)

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

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

Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307.

Director of Public Prosecutions (WA) v Hart [2019] WASC 4.

Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178.

Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 29.

Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312.

Garlett v The State of Western Australia [2022] HCA 30.

The State of Western Australia v D'Rozario [No 3] [2021] WASC 412.

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

The State of Western Australia v JXK [No 3] [2023] WASC 23.

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

The State of Western Australia v Narrier [No 2] [2022] WASC 49.

The State of Western Australia v Patrick [No 4] [2020] WASC 48.

The State of Western Australia v Sandon [2022] WASC 243.

The State of Western Australia v Sandon [No 2] [2023] WASC 29.

The State of Western Australia v Tomasovich [No 2] [2022] WASC 40.

The State of Western Australia v West [No 6] [2019] WASC 427.

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

Table of Contents

A.     Introduction and summary

B.      Procedural history

C.     Issues

D.     Statutory framework and relevant principles

E.      Respondent's antecedents

F.      Evidence

Overview

The Respondent's background

Dr Edward Petch

Ms Julie Hasson

Ms Pauline Stuart

Ms Valerie Thatcher

G.     Disposition

Findings

High risk serious offender

Substantial compliance with standard conditions

Conditions to be imposed

Conditions 8 & 9 (Residence)

Condition 15 (Attendance on a medical practitioner)

Condition 15 (Reporting to WA Police)

Conditions 23 & 24 (Alcohol)

H.     Orders

ANNEXURE A

ANNEXURE B

LUNDBERG J:

A.     Introduction and summary

1. The State of Western Australia has applied, pursuant to s 48 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act), for a restriction order to be imposed on the Respondent (Restriction Order).[1] 

   [1] The term Restriction Order is defined in the HRSO Act to mean either a continuing detention order or a supervision order: HRSO Act s 3.

2. The Respondent has an extensive criminal history and most recently served a 3½ year sentence of imprisonment for an aggravated robbery offence.  The Respondent does not have a major mental illness, but has been diagnosed with attention deficit hyperactivity disorder, substance use disorder, emotionally unstable personality disorder, and anti-social personality disorder, but does not fit the construct of psychopathy.  The Respondent is regarded as having a chronic risk of re-offending. 

3. For the reasons which follow, I am satisfied the Respondent is a high risk serious offender for the purposes of the HRSO Act (a point which was conceded by the Respondent at the hearing). I am also satisfied on the balance of probabilities that the Respondent will substantially comply with the standard conditions of a supervision order (and the State did not submit otherwise) and that those conditions will ensure the community is adequately protected from the risk the Respondent will commit further serious offences.

4. I therefore propose to make a supervision order, subject to the conditions set out in Annexure A to these reasons.  The duration of the supervision order should be for an effective period of two years, by which I mean it should reflect the fact the Respondent has been on an interim supervision order since 10 February 2023.  I will therefore order that the supervision order expire on 10 February 2025.  In my opinion, this is a reasonable period of time to allow the Respondent to acquire the skills to cope with his disorders, and for those skills to become more habituated, to facilitate the Respondent adopting a prosocial lifestyle. 

B.     Procedural history

1. On 3 June 2022, the State of Western Australia applied for a Restriction Order to be imposed on the Respondent pursuant to s 48 HRSO Act (Restriction Order Application).  At the time, the Respondent was a sentenced prisoner, serving the tail-end of a 3½ year sentence of imprisonment for aggravated robbery.  The Respondent had been convicted of that offence in the District Court in October 2019.  This is the index offence for the purposes of this application.  The Respondent was released from custody on 12 August 2022.

2. Following his release from custody and return to the community, the Respondent remained subject to a statutory supervision regime, namely a six-month post sentence supervision order (PSSO). The PSSO had been imposed on 20 July 2022 by the Prisoners Review Board, pursuant to s 74D of the Sentence Administration Act 2003 (WA). The PSSO placed a number of restrictions on the Respondent and required that he comply with several requirements including to have no direct or indirect contact with the victim, to attend random urinalysis as directed, and to submit to random breath testing.

3. On 28 July 2022, McGrath J delivered his reasons in respect to the preliminary hearing of the Restriction Order Application, conducted pursuant to s 46(1) HRSO Act. McGrath J determined there were reasonable grounds to believe the court might find that the Respondent was a high risk serious offender: The State of Western Australia v Sandon [2022] WASC 243.

4. On 9 February 2023, I ordered that an interim supervision order be made in relation to the Respondent (Interim Supervision Order), in light of the then impending expiry of the Respondent’s PSSO: The State of Western Australia v Sandon [No 2] [2023] WASC 29. The Interim Supervision Order was expressed to commence on 10 February 2023.

5. Only days later, on 14 February 2023, the substantive hearing of the Restriction Order Application was heard, with the State seeking final orders pursuant to s 48 HRSO Act. Ms F M Allen appeared as counsel for the State at that hearing, and Mr T J McCulloch appeared as counsel for the Respondent. For the purposes of the hearing, the State filed a comprehensive set of written submissions dated 13 February 2023.

6. At the hearing of the Restriction Order Application before me, the State maintained the Respondent was a high risk serious offender (HRSO).  The risk identified by the State was that, if the Respondent was not made subject to a restriction order, he would recommence high risk behaviours, involving the use of illicit substances, and be an unacceptable risk of subsequently committing a serious offence in the future. 

7. The State did not contest the proposition that the risk presented by the Respondent could be managed within the community through a supervision order pursuant to s 48(1)(b) HRSO Act (Supervision Order). 

8. Counsel for the Respondent conceded that the Respondent was capable of being characterised as a HRSO pursuant to the HRSO Act, and submitted that a Supervision Order was the appropriate disposition on this application. As explained in these reasons, this concession by the Respondent's counsel was well made and appropriate in the circumstances. As I apprehended it, the principal battleground at the hearing was, in substance, the particular conditions which should be imposed as part of any Supervision Order.

C.     Issues

1. Given the statutory framework, I am required to address the following issues in the context of this Restriction Order Application:

   (a)Whether the Respondent is a HRSO as that term is defined in s 7(1) HRSO Act, having regard to the factors in s 7(3) HRSO Act. If the answer to this question is 'no', no question of the making of a 'restriction order' for the purposes of the HRSO Act arises.

   (b)If the Respondent is a HRSO, the next question is whether I am satisfied on the balance of probabilities that the Respondent will substantially comply with the standard conditions of a Supervision Order. In the event I am not so satisfied, I am obliged to make a continuing detention order in relation to the Respondent (Continuing Detention Order).

   (c)If I am satisfied the Respondent will substantially comply with the standard conditions of a Supervision Order and subject to the paramount consideration which is the need to ensure adequate protection of the community, I may make a Supervision Order. That order may be subject to appropriate conditions.

D.     Statutory framework and relevant principles

1. The following summary of the applicable principles is drawn from my decision in The State of Western Australia v JXK [No 3] [2023] WASC 23. I have also had regard to the principles extracted in the State’s written submissions at [26] – [48].

2. Section 7(1) HRSO Act provides that an offender is a high risk serious offender if the court is satisfied by acceptable and cogent evidence and to a high degree of probability that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.

3. A 'restriction order' under s 7(1) HRSO Act means either a Continuing Detention Order or a Supervision Order.[2]  A 'serious offence' is an offence specified in sch 1 div 1 of the HRSO Act, or in sch 1 div 2 and committed in the circumstances set out in div 2 relation to that offence.

   [2] HRSO Act s 3(1).

4. Section 7(1) HRSO Act was analysed by Corboy J in The State of Western Australia v Garlett [2021] WASC 387. Corboy J held that the preferred interpretation of the section requires the court to undertake two separate evaluative assessments.

5. First, the court must be satisfied that a risk that an offender will commit a serious offence is unacceptable.  Second, the court must be satisfied that it is necessary to make a restriction order to ensure adequate community protection against a risk that the offender will commit a serious offence. [3]

   [3] The State of Western Australia v Garlett [2021] WASC 387 [135] ‑ [138]. See also The State of Western Australia v D'Rozario [No 3] [2021] WASC 412 [19] ‑ [21]; and The State of Western Australia v Narrier [No 2] [2022] WASC 49 [23].

6. The State bears the onus of satisfying the court that an offender is a high risk serious offender.[4] The court has to be satisfied of these matters, pursuant to s 7(1) HRSO Act, by acceptable and cogent evidence and to a high degree of probability. This is a standard that is greater than a finding on the balance of probabilities and less than a finding of beyond reasonable doubt. It is otherwise incapable of further definition.[5]

   [4] HRSO Act s 7(2).

   [5] Director of Public Prosecutions (WA) v GTR[2008] WASCA 187; (2008) 38 WAR 307 [28] (Steytler P & Buss JA).

7. An ‘unacceptable risk’ is a risk that is not trivial or transient.[6]

   [6] The State of Western Australia v Garlett [2021] WASC 387 [136(b)].

8. The court is required to undertake a balancing exercise, taking into account the matters listed in s 7(3) HRSO Act. In doing so, the court must disregard the possibility that the offender might temporarily be prevented from committing a serious offence by imprisonment, remand in custody, or the imposition of bail conditions.[7] It requires the court to have regard to, among other things, the nature of the risk (the commission of a serious offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition whilst having regard, on the other hand, to the serious consequences for the offender if an order is made under the HRSO Act.

   [7] HRSO Act s 7(4).

9. The requirement is not that the risk that the offender will commit a serious offence must be at some high percentage of probability.  A risk that the offender will commit a serious offence may be less than 50% yet still be an unacceptable risk.[8]   It is the necessity to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence that must be proved by acceptable and cogent evidence and to a high degree of probability. 

   [8] The State of Western Australia v West [No 6] [2019] WASC 427 [24]; The State of Western Australia v ZSJ [2020] WASC 330 [47].

10. If the court is satisfied that the offender is a high risk serious offender, the remaining issue is whether it is appropriate to order a Continuing Detention Order or a Supervision Order (i.e. which species of Restriction Order).[9] A court cannot make a Supervision Order unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of such an order. The standard conditions are those contained in s 30(2) HRSO Act and include reporting, supervision, electronic monitoring and that the offender will not commit a serious offence during the period of the order. The onus is on an offender to satisfy the court that he will substantially comply with the standard conditions.[10]

    [9] HRSO Act s 48(1).

    [10] HRSO Act s 29(2).

11. Pausing for a moment, it is important to recognise the purposes of the HRSO Act. The powers conferred by the HRSO Act are not to be exercised for the purpose of imposing additional punishment, but rather for the ultimate purpose of protecting the community. The protective purpose of the HRSO Act was affirmed by the High Court in Garlett.[11]   This requires the court to choose the order that is the least invasive or destructive of the respondent's right to be at liberty, while, at the same time, ensuring an adequate degree of protection of the community.[12]  In doing so, the court's function is not to reduce this risk to zero.[13]

    [11] Garlett v The State of Western Australia [2022] HCA 30 [45], [55] – [56] (Kiefel CJ, Keane and Steward JJ), but see the analysis of Edelman J on this issue at [247] – [255], describing continuing detention orders under the HRSO Act as 'protective punishment'.

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

    [13] Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 [107].

12. The protective purpose of the HRSO Act is to be achieved not only by continuing to exercise control over the person the subject of an order, but also by providing care and treatment for the offender in the hope that the risk to the community will be reduced.[14]

    [14] HRSO Act s 8(b). See also The State of Western Australia v Tomasovich [No 2] [2022] WASC 40 [38] (Curthoys J).

1. The HRSO Act contemplates that the relevant risk may be capable of being managed through the imposition of a Supervision Order, not only through a regime of detention. The level of risk posed by the respondent, and whether the community can be adequately protected against the risk under a Supervision Order, must be assessed by having regard not only to factors personal to the respondent, such as personality, attitudes, propensities and his capacity to control or manage his own behaviour, but also to external constraints and obligations that can be put in place under a Supervision Order to mitigate the risk.

2. Whether the protection that can be afforded by a Supervision Order will be 'adequate' is a qualitative assessment. It is necessary to have regard to the nature of the risk, the likelihood of the risk being realised and the likely effect that the proposed Supervision Order could have in reducing or obviating that risk.[15]  

   [15] Director of Public Prosecutions (WA) v GTR [26] ‑ [27] (Steytler P & Buss JA) and Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 29 [63] ‑ [65] (Wheeler JA)

3. Gains made by an offender in treatment and their behaviour while in custody will inform the assessment of the personal factors. Behavioural changes or improvements in management options may make a Supervision Order a viable possibility.[16]   The availability of new technology or resources in the community is also relevant to the assessment of external factors.  

E.     Respondent's antecedents

[16] The State of Western Australia v Newland [No 3] [2022] WASC 43 [23]. See also Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178 [14] ‑ [18].

1. The Respondent is 33 years old and has had an extensive criminal history which has spanned his developmental periods. 

2. The Respondent's history of offending includes convictions for violent offending.  This has included convictions for armed robbery, aggravated armed robbery, assault, wounding, stealing, and aggravated grievous bodily harm.  Additionally, he has convictions for breaches of bail undertakings, violence restraining orders, community based orders, and parole.  I have set out a table in Annexure B to these reasons which details the Respondent's criminal record.  This table does not include all of the Respondent's prior offences – it is intended to capture the most serious offences.  It is necessary to itemise the Respondent's criminal record in order to demonstrate the persistent and repeated nature of his breaches.

3. Although not all the offences in Annexure B are 'serious offences' for the purposes of the Act, they are nonetheless relevant for the purposes of the Restriction Order Application. This is because the offending conduct is consistent with conduct identified by the experts as being the sort of offending which the Respondent may engage in, in the future.

4. The Respondent's most recent conviction, for which he served a 3½ year sentence of imprisonment, was for aggravated robbery.  This was a 'serious offence' (as defined under the HRSO Act). The Respondent was convicted of that offence in the District Court in October 2019. The offending involved the Respondent approaching the victim at a train station and punching the victim once to the left side of the head and then stealing his bag. Upon the victim endeavouring to use his mobile phone to record the Respondent, he responded by further assaulting the victim causing him to fall to the ground.[17]The Respondent was taking methamphetamines and heroin at the time of the offence.  The offence was aggravated because the Respondent was in the company of a co-offender at the time and the victim suffered bodily harm.  The assault was described as persistent and sustained. 

   [17] The State of Western Australia v Sandon [2022] WASC 243 [23].

5. The Respondent was convicted of one other 'serious offence' (as defined under the HRSO Act). In June 2013, the Respondent was convicted in the Supreme Court of one count of aggravated armed robbery for which he was sentenced to a one year term of imprisonment. In brief terms, the offending involved the Respondent being armed with a knife and brandishing the knife to store security when he was leaving the store after shoplifting.[18]  The Respondent had been taking methamphetamines at the time.

   [18] The State of Western Australia v Sandon [2022] WASC 243 [22].

6. The facts of some of the Respondent's other offences are worth describing in order to convey the Respondent's history. 

1. The Respondent was convicted of two counts of assault occasioning bodily harm, which occurred in November 2009.  The Respondent assaulted a 16 year old girl with whom he was in a relationship.  He slapped the victim to the face, pulled her to the ground and continued to punch her approximately 8 times to the head.  The victim walked away, but was followed by the Respondent who continued to assault her, then smashed her head into the ground.  Later that day, the Respondent again assaulted the victim, slapping her face causing her lip to bleed and punching her several times to the top of her skull. 

2. In March 2012, the Respondent assaulted his girlfriend's stepfather, and was charged with aggravated assault occasioning bodily harm.  At the time, the Respondent had been restrained by a violence restraining order in relation to the stepfather.  During the assault, the Respondent threw a sharp pointed piece of broken fence at the victim, striking him to the right side of the head.  The victim received a 3 cm cut to this head and an 8 cm cut above his ear.

3. In March 2015, the Respondent was observed shoplifting at a store, and was followed by a store worker.  The Respondent punched the victim to the face and flailed his arms at the victim, causing the victim to fall to the ground.  The victim sustained a cut to the top of his head which was bleeding profusely, as well as cuts and grazes to his elbows.

4. In November 2015, the Respondent was confronted by the victim, whilst he was standing in the victim's driveway.  The Respondent approached the victim and punched him to the face before running off.  The victim gave chase.  The Respondent grabbed a metal garden rake and returned to the victim's property.  The victim was struck by the rake on his back and arms.  He suffered 12 puncture wounds to his back, 6 sutures on his elbow and bruises to this left elbow, hip and rib and tenderness to the nose and face.  The Respondent was charged with, and convicted of, unlawful wounding.

5. In January 2019, the Respondent assaulted a taxi driver after it became evident he could not pay the fare.  The Respondent punched the victim several times in the face and fled the scene.  The Respondent was charged with, and convicted of, common assault.

F.     Evidence

Overview

1. At the hearing of the Restriction Order Application on 14 February 2023, the State tendered a book of materials (Book of Materials) comprising two volumes.[19]  I received those volumes as Exhibits A and B.  Exhibit A is dated 6 September 2022 and Exhibit B is dated 8 November 2022.

   [19] ts 64 - 65.

2. Volume 1 of the Book of Materials consisted of background material which included the Respondent's criminal record, Department of Justice prison records, medical reports, transcripts and records relating to the Respondent's previous offences and criminal hearings.

3. Volume 2 of the Book of Materials included material specifically prepared for the Restriction Order Application, namely:

   (a)The Treatment Options Report prepared by Valerie Thatcher dated 8 November 2022.[20]  Ms Thatcher is a HRSO Planning Manager employed by the Department of Justice.

   (b)The Psychological Report prepared by Julie Hasson dated 21 October 2022.[21]  Ms Hasson is a Forensic Psychologist.

   (c)The Psychiatric Report of Dr Edward Petch dated 18 October 2022.[22]  Dr Petch is a Consultant Forensic Psychiatrist.

   (d)The Community Supervision Assessment of Pauline Stuart dated 3 November 2022.[23]  Ms Stuart is a Senior Community Corrections Officer with the Department of Justice.

   [20] Exhibit B, pg 506 - 509.

   [21] Exhibit B, pg 510 – 541.

   [22] Exhibit B, pg 542 – 593.

   [23] Exhibit B, pg 594 - 607.

4. I also received into evidence an Updated Community Supervision Assessment prepared by Ms Stuart dated 24 November 2022 (Exhibit C),[24] a PSSO Performance Report prepared by Ms Stuart dated 25 January 2023 (Exhibit D),[25] and a Community Business Information System document prepared by Ms Stuart dated 7 February 2023 (Exhibit E).[26]

   [24] ts 65.

   [25] ts 66.

   [26] ts 116.

5. At the hearing of the Restriction Order Application, oral evidence was given by Dr Petch, Ms Hasson, and Ms Stuart, and they were each cross-examined. The Respondent did not challenge the expertise of the experts. My assessment was that each of the witnesses gave their evidence in a considered manner, giving reasons where appropriate. I accept their evidence. The Respondent elected not to give or call any evidence.[27]

   The Respondent's background

   [27] ts 124.

6. The Respondent recounted his family history and upbringing to Dr Petch, which notably included his parent's divorce when he was 11 years old and his subsequent estrangement from his father.  The Respondent remains close to his mother, who he describes as his 'rock', and is also close to his sister.  Indeed, his sister has custody of the Respondent's young daughter under arrangements through the Department of Communities, Child Protection and Family Support.

7. When the Respondent was 6 or 7 years of age, he was sexually abused by a family friend, who was later convicted of the offence.  It cannot be doubted this had an effect on the Respondent's emotional development during his childhood.

8. The Respondent did not do well at school and was not interested in academic work.  He was suspended on occasions and expelled from school 2 or 3 times.  He had difficulties concentrating at school and was often bullied.  He was diagnosed with attention deficit hyperactivity disorder (ADHD) and prescribed Ritalin.  He left school at year 10.  The Respondent was also sexually active from a young age.

9. The Respondent has held a range of jobs including spray painter, working in a fabrication shop, making pallets, and welding.  After he increased his drug use, he became less interested in employment and had not held regular employment for some time before being sentenced to custody in 2019.  The Respondent became quite proficient at darts during his youth, becoming the Australian Under 25 Champion at the age of 17.

10. The Respondent relayed to Dr Petch a long history of cannabis use, from the age of 14, as well as methamphetamine and opiate use.  The Respondent commenced taking OxyContin from about the age of 18 years and developed a dependence on the substance.  By all accounts, most of the Respondent's offending has taken place while he was intoxicated with opiates or when he did not have opiates, but needed them and resorted to criminal activity to support his addiction.[28]   Whilst in prison in 2018, the Respondent attended the prison pathways substance misuse program but did not attend the residential rehabilitation program after release from custody. 

    [28] Report of Dr Petch [49].

11. The Respondent has been using alcohol from about the age of 17 years, and had become dependent on alcohol when in the community.  Following his release from prison in 2022, the Respondent has asserted that he would not take up using alcohol again.

    Dr Edward Petch

12. Dr Petch is an experienced Consultant Forensic Psychiatrist.  He reviewed the Respondent in September 2022 for the purposes of preparing his report which is dated 18 October 2022.[29]

    [29] Exhibit B, pg 542 – 593.

13. Dr Petch noted that the Respondent was taking his prescribed medication when he was reviewed, namely a Buvidal injection.  That is a synthetic opioid and an antidote opiate.  Essentially, the purpose of that drug is to provide a flow release into the blood stream of the substance which controls craving for opiates.  The drug was prescribed given the Respondent's longstanding opiate addiction, to reduce the risk of relapse into drug use.

14. Dr Petch noted the Respondent had been diagnosed with ADHD, which presents as an ongoing problem for him.  Dr Petch described this as a neurodevelopmental condition which persists into adulthood.  Dr Petch observed that the Respondent had, some time ago, ceased complying with his treatment using stimulant medication and began self-managing the condition.  The Respondent relied on 'street stimulants', mainly methamphetamine, which had a similar effect until he started increasing the dose.  This ultimately meant the Respondent's hyperactivity symptoms and behaviours were not managed, including not listening and following through, being easily distracted, forgetful, and being unable to sit still for very long.  A particular difficulty is that the Respondent would likely act in quite an impulsive manner, as borne out by his history. All of this is made worse by various degrees of intoxication. 

15. In Dr Petch's view, proper treatment for ADHD is likely to reduce the likelihood of further offending. 

16. Dr Petch testified to his opinion that the Respondent had a substance use disorder which was severe and enduring.  This was in remission while the Respondent was in custody, but following his release from custody there was evidence the Respondent had been using substances again.  The Respondent has relayed to Dr Petch his genuine belief and wish to remain off drugs (to use Dr Petch's language).  The Respondent explained to Dr Petch that he thought he had used drugs enough and now wanted to get his life back on track to care for his young daughter.  In Dr Petch's opinion, though, the Respondent does not necessarily have adequate coping mechanisms to manage 'all that life could throw at him' and so he might be vulnerable to a relapse. 

17. Dr Petch further diagnosed the Respondent with an emotionally unstable personality disorder.  The significance of this disorder for the Respondent is that it is known to increase risk of mood instability.  This can drive behaviour that is not well thought through, and can lead people with this disorder to find themselves in difficulties, find themselves unable to cope, find themselves using substances and can then lead to unfortunate behaviour, including criminality.  According to Dr Petch, it is a longstanding condition, but it does ameliorate with age and maturity.  There are also treatments for various aspects of this disorder, including formal psychological programs.

18. Dr Petch also concluded that a diagnosis of the Respondent with antisocial personality disorder was clearly open.  He described it as a life-long condition, but one that ameliorates as one matures.  The key symptoms include a failure to obey laws and norms, engaging in criminality, lying, deception and manipulation for profit or self-amusement, as well as impulsive behaviour and lack of temper control.  It can lead to a pattern of irresponsibility and, sometimes, a lack of remorse for one's actions.  Dr Petch was not confident the disorder could be treated successfully.

19. Dr Petch undertook an analysis of the Respondent using the Psychopathy Checklist Revised, known as PCL-R.  Dr Petch noted in his report that, where a personality disorder exists, it is helpful to consider whether psychopathy (which is a subset of anti-social personality disorder) is present.  This is thought to make a significant contribution to the risk of future offending.  Dr Petch's assessment was that the Respondent's score using the PCL-R was in the lower range and he did not meet the necessary threshold for a diagnosis of psychopathy to be made. 

20. Dr Petch concluded that:

    …he does not carry the interpersonal characteristics or affective traits of a prototypical psychopath, but some of his behavioural and lifestyle traits are significant and similar to those exhibited by people who do have psychopathy.  He has a diverse criminal background and unstable lifestyle but not the same interpersonal or affective characteristics.  The percentile score means that in the male prison population in which the tool was calibrated, 37.1% of the prisoners scored lower, and conversely 62.9% scored higher than [the Respondent].

    Overall the risk of reconviction of a violent offence within 2 years of release of a person with a low PCL-R score is lower than someone with a higher score (say above 30).  [T]he absence of psychopathy does not necessarily mean that the risk is low.[30] 

    [30] Report of Dr Petch [223] – [224].

21. Dr Petch also employed the HCR-20 Version 3 Risk Assessment Tool, which he described as a well-validated and reliable semi-structured clinical judgment tool used to assess the risk for violence.  The factors examined as part of this assessment are historical factors (such as substance misuse, traumatic experiences etc.), factors that can change over time (such as insight, instability and treatment or supervision response etc.), and future risk management factors (including professional services and plans, the person's living situation and whether they are stressed or coping).

22. One of the particulars factors which Dr Petch commented on was the Respondent's violent ideation or intent.  He described to Dr Petch that he had no desires or thoughts about being violent again, and no urges.  The Respondent has a hostile attribution bias (namely, attributions of violent or hostile intent in the absence of such an intent), and this is related to intoxication and substance misuse.  Dr Petch rated the Respondent as a low risk in this regard.  Dr Petch explained the matter as follows:

    At the time I interviewed him, essentially he didn’t wish to be violent.  He had no wish to be violent again.  He hoped he’d put that behind him.  He had no urges to be violent.  He wasn’t thinking hostile or violent thoughts about anyone.  He was quite relaxed.  What, however, the next sentence means is that when intoxicated, as with many people, one’s outlook can change.  And he becomes slightly paranoid…But essentially, it’s a hostile attribution bias.  It means that you think someone may be looking at you in a funny way or acting against you or saying something or being against you or threatening you when they’re really not.  And that’s brought on by various states of intoxication, either alcohol or drugs.  It’s most commonly seen in states of alcohol intoxication.  That’s why, you know, you get fights outside the pub.  “What are you looking at?”  You know, “Are you looking at that person or that person” or – and that’s how fights start very, very quickly.  And it’s that negative hostile attribution bias that is so readily brought on by intoxication, not just for [the Respondent] but really many, many people.[31]

    [31] ts 77.

23. Dr Petch testified that the most significant risk management issues for the Respondent were the fact his future plans seemed vague, and he has an instability in relationships, accommodation, and occupation.  He described the Respondent as having a lack of personal support and no real social network.  Without support and supervision, the use of substances becomes increasingly likely, according to Dr Petch, and the increasing use of substances leads to greater instability.  This can lead to a risk of serious violence. 

24. As to his present living situation, Dr Petch regarded it as quite important from a future risk management perspective that the Respondent maintains contact with his very supportive mother.  This provides him a stable place to stay, when needed.

25. As to the pathway forward, Dr Petch identified two alternative scenarios for the Respondent.  An optimistic scenario in which the Respondent engages with his community program and shows a willingness to take further steps to remain in his daughter's life.  Participation in future drug and alcohol rehabilitation programmes may see a strengthening of his coping abilities.  This may also reduce the risk he succumbs to the use of drugs and enhances his ability to remain employed.  Treatment for his mood instability may also enhance his sense of control and promote emotional stability.  All of these interventions may operate to reduce the risk he falls back to psychosocial instability which may drive offending behaviour and serious violence.

26. The main foreseeable scenario which Dr Petch outlined, being a pessimistic scenario, was that the Respondent suffers a setback and his mood deteriorates.  To counter setbacks, he may seek out the company of persons with anti-social leanings and succumb to use of drugs and alcohol.  The risk is that his life rapidly deteriorates, including loss of employment, engaging in criminal behaviour to fund his habits including criminally violent activity.  Dr Petch opined that this was a:

    …trajectory that he has been on several times in the past and it’s fairly straightforward to predict that without appropriate intervention, this will recur and, in my view, he’s on the path to that now.[32]

    [32] ts 80.

27. Dr Petch expressed the view in his report prepared on 18 October 2022 that the Respondent poses as a moderate to high risk of committing future serious violence offences.  However, Dr Petch was more inclined in his oral evidence to say the risk was in fact at the higher end based on the Respondent's circumstances as at mid-February 2023.[33]  Dr Petch made the following comments in his report:

    The propensity of Mr Sandon to commit serious offending is underpinned by his substance misuse disorder (currently in remission), his untreated ADHD and his personality disorders.  He has a well-established tendency to steal for gain, either to eat or to obtain cash or to steal as a means of obtaining cash to fund his habit or service his drug debt.  In the course of these endeavours, he has on occasions resorted to violence, some of which have become serious.  The propensity is largely driven by intoxication, and if that can be managed his overall risk in my view is likely to be substantially moderated.  Should he restart using drugs, in my view it is likely that his risk of committing serious violence will escalate rapidly and would become grave.  Should he receive appropriate treatment for his substance misuse disorders, it is possible that his risk of relapse will reduce.  In my opinion, this would be likely to reduce the overall risk of serious violence that the community faces.[34]

    [33] ts 80 – 81.

    [34] Report of Dr Petch [239] – [242].

28. As to treatment and supervision strategies, Dr Petch outlined a number of relatively standard strategies and explained his views on the conditions which in his view ought be included in any Supervision Order (if one is made). I will return later in these reasons to deal with the dispute between the parties as to the conditions which should be attached to the Supervision Order.

29. Dr Petch was of the view that any Supervision Order should be maintained for at least two years.

Ms Julie Hasson

1. Ms Hasson is an experienced Forensic Psychologist.  She reviewed the Respondent in October 2022, and prepared a report setting out her opinions, which is dated 21 October 2022.[35]  With the exception of her opinion in relation to alcohol as a risk factor, Ms Hasson's conclusions following her assessment of the Respondent were similar in substance to those of Dr Petch.

   [35] Exhibit B, pg 510.

2. At the time Ms Hasson reviewed the Respondent, he had been under supervision for approximately eight weeks under the PSSO.  He had managed to obtain employment, which he was enjoying.  He had been living at his mother's house.  He spoke quite frankly about some of the positives about being at her home, but also some of the negatives and stressors that he was finding.  He had formed a couple of relationships in quick succession.  He had some understanding of his need to not be alone.

3. The Respondent had also undergone urinalysis on a number of occasions which had returned negative results.  According to Ms Hasson, at the time of her review, the Respondent seemed quite committed to maintaining abstinence from drug use.  He could see the benefits of doing that, and he had also started to formulate some plans about what he would like to do, should he remain in the community long enough.  The Respondent expressed that he thought about purchasing his own property.  He was starting to develop some prosocial goals, and his way of achieving those was to maintain employment.  Ms Hasson observed the Respondent to have a positive relationship with work, including working long hours as he enjoyed the financial independence the money provided to him.  He was looking forward to the future.

1. The Respondent's compliance, in general terms, had deteriorated somewhat in the months following.

2. Ms Hasson gave evidence in relation to the PSSO Report date 25 January 2023.  She noted that the Respondent has returned positive reports on his urinalysis, for amphetamine and methylamphetamine.  These samples had been given in November and December 2022. 

3. The Respondent had continued to report as directed by the PSSO and attended most of his psychological assessment appointments.  There did not seem to be a drop-off in his engagement with supervision or disclosure.  The difficulties at this time were centred around the Respondent lapsing into substance abuse.  The urinalysis results lead to proceedings against the Respondent for breach of the PSSO.

4. Further urinalysis testing in January 2023 had produced negative results, with one test unable to be analysed.

5. As to risk scenarios, Ms Hasson outlined the likely scenarios in her report and amplified them in her oral evidence.  In her opinion, and analogous to the views of Dr Petch, the most likely offence scenario would involve the Respondent committing a robbery or an armed robbery, with violence.  She considered his likely motivation would be to support his drug use.  It would be when he is in financial stress, and it would either be to commit a crime just like he has done in the past, to steal food items or other consumables.  Substance abuse is a strong driver, according to Ms Hasson.  Financial strain is another strong driver.  In Ms Hasson's opinion, instability would be a core feature that comes into play for the Respondent together with a significant relapse into substance abuse (meaning the regular use of substances daily, perhaps several times a day, over a period of time). 

6. In Ms Hasson's opinion, if the Respondent continues to use drugs on a very regular basis, this will lead to a declining lifestyle, and an inability to manage and cope for himself.  This is going to make it more likely that, eventually, he will commit crimes in order to support himself.  Ms Hasson opined that:

   [The Respondent's] risk of reoffending is chronic.  He has not been able to reside in the community for extended periods of time without engaging in offending behaviour.  Illicit substance abuse and the presence of antisocial and antiauthority attitudes increases the imminence of risk of future violence.  If [the Respondent] relapses into illicit substance abuse then the imminence of his risk of violence increases substantially.

   If [the Respondent] relapses back into illicit substance abuse, it is likely he will offend on a regular basis over a period of several days in order to obtain alcohol and drugs.  He will continue to offend until such time as he is apprehended.  His offending in the past shows persistence and habituation.

   [The Respondent] is assessed as being a high risk of reoffending which increases the likelihood of him engaging in the offending behaviour described in the scenarios above.  [The Respondent] has yet to make sufficient treatment gains or demonstrate that he can manage his substance abuse risk in the community over an extended period of time.  He is definitely on the right track however he requires significant support and assistance to maintain abstinence.[36]

   [36] Report of Ms Hasson [109] – [111].

7. Ms Hasson did not consider alcohol use was a risk factor for Mr Sandon, although she agreed with Dr Petch’s evidence about alcohol use as a general risk factor in violence and as a risk factor in offending.  Ms Hasson did not see any direct link for the Respondent with alcohol use.  It was not relevant in her view.

8. Ultimately, Ms Hasson considered the Respondent to be at high risk of reoffending and committing a serious offence in the future.  The reason for this is that his substance use remains untreated, and he was misusing substances throughout his term of imprisonment.  Ms Hasson commented that the Respondent had relapsed since returning to the community.  Whilst he had good intentions and wishes to remain drug free, according to Ms Hasson, he does not have the skills to do so at this stage. 

9. In essence, according to Ms Hasson, the Respondent requires specialised focus around his substance abuse.  There is also an element of comfort for the Respondent with prison, given the time he has spent there. 

10. As with Dr Petch, Ms Hasson offered her opinions as to the conditions which in her view ought be included in any Supervision Order (if one is made). I will return later in these reasons to deal with the dispute between the parties as to the conditions which should be attached to the Supervision Order.

11. Ms Hasson was of the view that any Supervision Order should be maintained for at least two years, although she allowed for the possibility of the order being backdated. Ms Hasson noted that her main concern, in terms of duration, was to allow the Respondent a sufficient amount of time to change and to acquire the skills and for them to become more habituated.

    Ms Pauline Stuart

12. Ms Stuart is a Senior Community Correction Officer employed with the Maddington Adult Community Corrections Centre.  Ms Stuart prepared a report dated 3 November 2022, which was tendered by the State.[37]  Ms Stuart has been a CCO for around 10 years, and worked within adult community corrections for around 16 years.

    [37] Exhibit B, pg 594 - 607.

13. Ms Stuart was, at the time of the hearing of this matter, the Respondent's CCO, and had held that role since the Respondent was released from prison in August 2022 on the PSSO. I understand Ms Stuart will continue as the Respondent's CCO if the court ordered he be subject to a Supervision Order.

14. Ms Stuart offered some insight in her oral evidence as to the Respondent's compliance with the PSSO.  She noted that the Respondent has complied with the supervision appointment requirement in general terms, but missed one or two psychiatric appointments.  Importantly, she noted that the Respondent provided four positive urinalysis results, in November and December 2022.  The Respondent is tested every week. 

15. Ms Stuart has typically met with the Respondent once a week.  During these meetings, the Respondent has confessed to drug use, which has led to Ms Stuart directing him to be retested.  Ms Stuart testified that the Respondent indicated, during their meeting on 7 February 2023, that he had used methamphetamine.  This revelation was recorded by Ms Stuart in her electronic notes, which were tendered as Exhibit E.

16. Ms Stuart also offered evidence in relation to the conditions which she considered should be attached to any Supervision Order, which I will return to in due course. In broad terms, these conditions mirror the exiting Interim Supervision Order conditions, with some additional conditions to address the risks highlighted by Dr Petch and Ms Hasson in their respect respective reports.

    Ms Valerie Thatcher

17. Ms Thatcher did not testify at the hearing.  As noted above, Ms Thatcher had prepared a report (dated 8 November 2022)[38] to assist with an overview of the Respondent's intervention history and to identify treatment options delivered and available through the Department of Justice.

    [38] Exhibit B, pg 506 – 509.

18. Within that report, Ms Thatcher noted that the Respondent commenced seeing Mr Gary Duggan (who is a Senior Counselling Psychologist) on 25 August 2022 and had subsequently attended a further seven sessions. The Respondent was also afforded the flexibility to reschedule two sessions due to his employment obligations. Ms Thatcher also noted that, whether the Court makes a Continuing Detention Order or a Supervision Order, the Respondent will continue to be offered access to individual psychological counselling from Mr Duggan (with whom he is presently engaged on a weekly basis at the Maddington Adult Community Corrections).

19. Ms Thatcher commented that the Respondent had continued to participate in individual weekly counselling sessions which were aimed at addressing substance misuse issues.  The intention was for these sessions to further complement and reinforce the gains made in the Pathways program completed by the Respondent while in custody.

G.     Disposition

Findings

1. Before I address the statutory questions which arise for consideration on this Restriction Order Application, I should record the primary matters of which I am satisfied on the documentary and oral evidence led at the hearing on 14 February 2023. I am satisfied of the matters below and find accordingly:

   (a)The Respondent has an extensive criminal record which includes extremely violent offending such as aggravated armed robbery and aggravated grievous bodily harm, as well as property offences and failures to comply with court orders (such as bail undertakings, violence restraining orders and community based orders).  On two occasions, the Respondent has committed offences which would be classified as 'serious offences' within the meaning of the HRSO Act.

   (b)The Respondent has a well-established tendency to steal for gain and in the course of these endeavours, the Respondent has on occasions resorted to violence, some of which have become serious.  The typical catalyst for the Respondent's offending has been his use of methamphetamines and other illicit substances.  The Respondent has had a long history of cannabis use and the use of illicit substances.  Since leaving custody and returning to the community, the Respondent has again engaged in substance misuse, which has been detected on recent urinalysis reports.  At least as at October 2022, the Respondent was continuing to take his prescribed medication to control his cravings for opiates.

   (c)The Respondent has been diagnosed with attention deficit hyperactivity disorder, substance use disorder, emotionally unstable personality disorder, and anti-social personality disorder, but does not fit the construct of psychopathy.  When not managed, the Respondent is prone to act in an impulsive manner and exhibit an increased risk of mood instability.  The Respondent's substance use disorder is severe and enduring.

   (d)In the expert opinions of both Dr Petch and Ms Hasson, the most likely scenario confronting the Respondent is that he suffers a setback of some description and his mood deteriorates, leading him to succumb to the use of drugs and alcohol.  This is a trajectory he has been on several times in the past.  The risk is that the Respondent's life would then rapidly deteriorate, including loss of employment, and engaging in criminal behaviour to fund his habits including criminally violent activity.

   (e)There is a high risk of the Respondent committing serious violent offences in the future.  There is a chronic risk of the Respondent re-offending.  The Respondent's propensity to commit serious offences is underpinned by his substance misuse disorder, his untreated ADHD and his personality disorders.  If the Respondent restarts using drugs, it is likely that his risk of committing serious violence will escalate rapidly and would become grave. 

   (f)If the Respondent receives appropriate treatment for his substance misuse disorders, it is possible that his risk of relapse will reduce.  Appropriate treatment would be likely to reduce the overall risk of serious violence that the community faces.

   High risk serious offender

2. The first task for the court in the context of this Restriction Order Application under ss 48 HRSO Act is to determine whether or not the Respondent to the application is a high risk serious offender within the meaning of the legislation.[39]  I have explained the principles which are applicable to this analysis, earlier in my reasons. 

   [39] HRSO Act, s 48(1).

3. The application of those principles and the consideration of the issue is rendered less complex in the present case given the Respondent's concession. Nonetheless, the question remains one for the court to consider and assess, and it is important for the court to ensure that it is satisfied the Respondent falls within the statutory concept of a high risk serious offender. The primary focus of the assessment in this regard is on the factors delineated in s 7(3) HRSO Act.

4. Dr Petch's clinical assessment of the Respondent, together with his application of the PCL-R and HCR-20 tools, demonstrate that the Respondent is at a high risk of committing a future serious violent offence if he is not subject to a restriction order under the HRSO Act. These are matters which are particularly significant in the context of the factors required to be assessed by ss 7(3)(a), 7(3)(b) and 7(3)(c) HRSO Act.

5. As to the Respondent's propensity to commit serious offences in the future and whether he has a pattern of offending behaviour (which is one of the factors requiring consideration by reason of s 7(3)(d) HRSO Act), it must be noted that the Respondent has been convicted of two serious offences as set out above and in Annexure B.  Having regard to the Respondent's history of violent offending generally, I accept the Applicant's submissions that the Respondent has a tendency or disposition to commit serious offences.

6. The Respondent's convictions for violence span almost 10 years and represent an ongoing pattern of violent behaviour since adolescence.  The Respondent has been assessed as tending to quickly revert to criminal behaviour suggesting the presence of antisocial attitudes and beliefs, particularly when using illicit substances or when struggling to cope with his life situation.  He often offends against members of the community who challenge him for his behaviour (for example, when stealing from stores).  He tends to offend when under the influence of illicit substances and uses violence as a means to an end and then attempts to justify his offending as self-defense or because he was on drugs.

7. The determination as to whether a person is a high risk serious offender also requires a consideration of the risk that, if the person were not subject to a Restriction Order, the offender would commit a serious offence, and the concomitant need to protect members of the community from the risk.  Dr Petch's opinion was very clear in this regard.  To put it plainly, the Respondent is a high risk of committing a future serious offence if not subject to a Restriction Order. 

8. The language of s 7(1) HRSO Act directs attention to whether there is an 'unacceptable risk' of the offender committing a serious offence. This term is not defined in the HRSO Act. In essence, a finding of fact that there is an unacceptable risk is an evaluative and predictive finding of fact involving a balancing exercise in which the court is required, on the one hand, to have regard to, amongst other things, the nature of the risk (the commission of a serious offence with serious consequences for the victim) and the likelihood of the risk materialising, on the other hand.

9. As I have found above, the Respondent has been diagnosed with ADHD, substance use disorder, emotionally unstable personality disorder, and anti-social personality disorder, but does not fit the construct of psychopathy.  The Respondent has a persistent and regular history of offending, and he is regarded as having a chronic risk of re-offending.

10. Overall, having regard to the factors in s 7(3) HRSO Act, I have a high degree of persuasion on the evidence before me that the State has demonstrated the Respondent meets the statutory conception of a high risk serious offender. That is to say, I have formed the view, on the evidence which has been presented (and the findings I have made above) and to a high degree of probability, that it is necessary to make a restriction order (either a Continuing Detention Order or a Supervision Order) in relation to the Respondent to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.

    Substantial compliance with standard conditions

11. Having found that the Respondent is a high risk serious offender within the meaning of the HRSO Act, I must either make a Continuing Detention Order or a Supervision Order. In making this decision, the paramount consideration is the need to ensure the adequate protection of the community. The need to ensure the adequate protection of the community does not exclude other considerations.[40]

    [40] Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312 [14].

12. To further amplify this point, as I have already observed, the powers conferred by the HRSO Act are not to be exercised for the purpose of imposing additional punishment, but rather for the ultimate purpose of protecting the community. The court is required to choose the order that is the least invasive or destructive of the offender’s right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community.

13. I must also bear in mind that the protective purpose of the HRSO Act is to be achieved not only by continuing to exercise control over the offender, but also by providing care and treatment for the offender in the hope that the risk to the community will be reduced.

14. The State does not suggest that a Continuing Detention Order should be made in relation to the Respondent. Nor do I consider that is a necessary outcome on the present application and in the present circumstances. The adequate protection of the community can be achieved through the making of a Supervision Order. The regime established by a Supervision Order will also permit the Respondent’s treatment to continue in a structured manner. Of course, as I have already noted, a court cannot make a Supervision Order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of such an order.[41] The standard conditions are those contained in s 30(2) HRSO Act and include reporting, supervision and electronic monitoring.

    [41] HRSO Act s 29(1).

15. The onus is on the offender to satisfy the court that he will substantially comply with the standard conditions.[42] The standard conditions are set out in s 30(2)(a) to (f) HRSO Act. In the present context, one of the most important of these standard conditions is found in s 30(2)(f) HRSO Act, which is a requirement that the Respondent 'not commit a serious offence during the period of the order'.  Another important standard condition for present purposes is that the Respondent 'be under the supervision of a community corrections officer and comply with any reasonable direction of the officer', which is found in s 30(2)(d) HRSO Act.

    [42] HRSO Act s 29(2).

16. For the court to be satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions of the supervision order, it must be satisfied that the offender will comply with the standard conditions in a manner and to an extent that will ensure the adequate protection of the community from the unacceptable risk of the respondent committing a serious offence.[43]

    [43] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52]; The State of Western Australia v West [No 6] [29]; The State of Western Australia v ZSJ [56] ‑ [58]; The State of Western Australia v Patrick [No 4] [2020] WASC 48 [109] ‑ [111].

17. The State does not submit the Respondent cannot discharge the burden of proving, on the balance of probabilities, that he will substantially comply with the standard conditions of a Supervision Order. Indeed, the State notes that the Respondent appears to have been relatively compliant with the terms of the PSSO. Counsel for the Respondent submitted that the Respondent had discharged his burden in this case.

18. Having considered the issue, I have concluded that the Respondent has discharged the burden on him to satisfy me that he will substantially comply with the standard conditions of a Supervision Order, in the manner described above. Whilst the Respondent's history of compliance with orders is imperfect, and he has relatively recently returned positive results on his urinalysis, there are good indications the Respondent has a desire to improve and move on from his past life. He has some family support, including his mother, and a stated desire to avoid drug use. He has continuing employment at present. His criminal record is lengthy, but marked by only two prior serious offences. All of this is sufficient to discharge the burden on the Respondent under s 29(1) HRSO Act that he will substantially comply with the standard conditions.

    Conditions to be imposed

1. Several potential conditions were the subject of debate at the hearing on 14 February 2023.  I have addressed each of them below and have explained how I propose to approach each issue.  I note there is some overlap in the condition numbers as the parties each submitted a set of proposed conditions, and there also exists the conditions attached to the Interim Supervision Order.

   Conditions 8 & 9 (Residence)

2. The Respondent proposed a set of conditions concerning his residence which would allow him to spend the night at an address other than the primary approved residence, provided the Respondent reports this fact to his CCO at his subsequent supervision session.

3. The Respondent's proposal appears to me to allow some additional flexibility for the Respondent as to his residence, a feature which found some support with Dr Petch when he was examined on this issue by Ms Allen. 

4. In my view, the conditions as drafted by the Respondent are appropriate and should be included.

   Condition 15 (Attendance on a medical practitioner)

5. The Respondent proposed a condition which involved an amendment to one of the conditions which was imposed as part of the Interim Supervision Order. 

6. The condition, as proposed by the Respondent, is that the Respondent must attend any medical practitioner, psychologist, psychiatrist or counsellor as directed by the supervision CCO.  The condition removes the requirement that the Respondent undergo treatment as directed by the CCO in consultation with a medical practitioner.

7. Dr Petch indicated in his evidence that he had no objection to the modification of the clause, on the basis that the Respondent should have freedom of choice as to the medical treatment he receives (ts 84 – 85).  I agree with this approach and the amended condition.  It is sufficient if the condition compels the Respondent to merely attend on a medical practitioner as directed

   Condition 15 (Reporting to WA Police)

8. The Respondent submitted that condition 15 in the Interim Supervision Order should be deleted because it is an overreach.  That condition requires the Respondent to report as directed by the Officer in Charge of the Serious Offender Management Squad and thereafter report to and receive visits from Police at times and at locations as directed.  In conjunction with this deletion, the Respondent proposed a new condition whereby the Respondent would agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information.

9. The Respondent's submission was that, if there was concern from the CCO that the Respondent was breaching the order and he needed to be arrested, the new proposed condition allows for that.  It allows for an exchange of information between the police and the CCO, and the police can then attend.  According to the Respondent, this would still allow oversight from the police.

10. Dr Petch saw no difficulty with these modifications to the conditions (ts 85), although he recognised it was not really a medical issue (ts 86).

11. Drawing on her many years of experience as a CCO, Ms Stuart saw the inclusion of condition 15 as important because the police cooperate and collaborate with the CCO's in enforcing Supervision Orders, and the CCO's do not work 7 days a week (ts 112). 

12. My view is that condition 15 should remain. It is a typical condition imposed by this court as part of a Supervision Order, and for good reason. It facilitates the role of the Serious Offender Management Squad in dealing with persons such as the Respondent, particularly where the appointed CCO may not be available at all times to deal with emerging or urgent issues. The condition is also not onerous – it requires the Respondent to report as directed and to receive visits from the police, and no more.

13. The new condition proposed by the Respondent is also unnecessary in my view given the terms of ss 24 and 25 HRSO, which provide for cooperation and the sharing of information between supporting agencies.  I will therefore not include the new condition

    Conditions 23 & 24 (Alcohol)

14. The Respondent proposed the deletion of these conditions.  They would otherwise prohibit the Respondent purchasing, possessing, consuming or using alcohol, and preclude him remaining at any licensed premises with the exception of cafes, restaurants and sporting venues (unless permitted to do so, in advance, by the CCO).

15. Ms Stuart's report dated 25 January 2023 (which is Exhibit D) provides some basis for the inclusion of the above conditions.  Within that report, Ms Stuart observed that the Respondent admitted his regular consumption of alcohol and noted that he appeared to lack insight into the risk this presents.  Ms Stuart noted that the Respondent had been arrested on six occasions between January and February 2019 for stealing alcohol from bottle shops.

16. Dr Petch was comfortable with the removal of the second condition, but his evidence was that he supported the inclusion of the prohibition on purchasing, possessing, consuming or using alcohol (ts 86).

17. Ms Hasson was of the view that neither of these conditions was necessary in relation to the Respondent (ts 102).  Her evidence was that these conditions may be relevant to managing risk in general, but they were not directly relevant to the Respondent's circumstances.  There was no direct link between the over-use of alcohol and the Respondent's offending (ts 102).

18. On the evidence, there does not appear to be a strong basis for the inclusion of either condition 23 or 24.  As Ms Hasson indicated, there is no direct link between use of alcohol and the Respondent's offending. 

19. I am also conscious the Respondent is a proficient darts player and he should be allowed to continue with that pursuit in the interests of furthering his prosocial lifestyle.  A condition which inhibits his ability to enter licensed premises is likely to impair his ability to pursue this interest. 

20. Accordingly, I will delete these conditions

H.     Orders

1. I will order that a Supervision Order be made pursuant to s 48(1)(b) HRSO Act, for a period which expires on 10 February 2025, on the standard conditions and with the additional conditions which are detailed in Annexure A to these reasons.

2. The duration of the Supervision Order is intended to be an effective period of two years, noting that the Respondent has been subject to an Interim Supervision Order since 10 February 2023. To allow for any necessary arrangements to be made by the Respondent's CCO, I will order that the Supervision Order commence from 31 May 2023 (which also ensures compliance with the time period of 21 days in s 27(3) HRSO Act).

ANNEXURE A

SUPERVISION ORDER - CONDITIONS

Pursuant to section 48(1)(b) of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act), the Court, having found that the Respondent is a high risk serious offender within the meaning of section 7(1) HRSO Act, makes a supervision order in relation to the Respondent (the Order), for a total period of 20 months and 10 days, commencing on Wednesday, 31 May 2023 and expiring on Monday, 10 February 2025, on the following conditions:

You, THE RESPONDENT, must:

STANDARD CONDITIONS REQUIRED BY THE HRSO ACT

1. Report to Maddington Adult Community Corrections Centre at 191 Burslem Drive, Maddington within 48 hours of the imposition of the Order and advise the officer of your current name and address.

2. Report to and receive visits from, a Community Corrections Officer (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, complying 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 HRSO Act.

ADDITIONAL CONDITIONS

Residence

1. Take up primary residence at [redacted] and not change this address unless it is approved in advance by a Community Corrections Officer assigned to you.

2. If spending the night at an address other than that mentioned in condition 8, report to the CCO that address at your subsequent supervision session.

Reporting to a CCO and supervision by a CCO

1. Be under the supervision of a CCO 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. Comply with the requirements of all programs and interventions designed to address your offending behaviour and/or risk of serious re-offending, as directed by a CCO.

Medications/Mental Health

1. To comply with mental health treatment as directed by a medical practitioner or a Community Mental Health Team member, including medication.

2. Disclose to the CCO on the next occasion you report to that person or agency the medical practitioner's details and allow contact for oversight and monitoring to occur regarding your treatment.

3. Attend any medical practitioner, psychologist, psychiatrist, or counsellor as directed by the supervising CCO.

Reporting to WA Police

1. Report to the Officer-in-Charge of the Serious Offender Management Squad at the Hatch Building, 144 Stirling Street, Perth WA 6000 within 48 hours of being placed on this Order, 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 other specific Police location in WA) or his/her delegate.

2. If requested, permit Police Officers to enter and search your person, residence and/or vehicle 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 the provisions of the High Risk Serious Offenders Act 2020 (WA).

Disclosure/Exchange of information

1. Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this Order, inclusion confidential information.

2. Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates (including peers and partners) 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 serious 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 within 48 hours of such contact occurring.

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.

Prevention of high-risk situations

1. Report at your next contact with your CCO, the formation of any social association (of more than 1 contact by any means), domestic, romantic, sexual or otherwise intimate relationship by you with any person.

2. Attend for, and submit to, urinalysis or other testing for 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 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.

5. 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.

6. Not allow any person other than a CCO or WA Police access to any telecommunication device/s referred to in Condition 30, without prior approval. Should any other entity be required to access a device for instances such as technical advice, approval must be sought in advance from a CCO. Enable device locking or password access of your telecommunication device/s. Not provide or disclose such passwords or other means used to access any telecommunication device referred to in Condition 30, to any person other than a CCO or Police Officer.

7. Upon request, permit a CCO or WA Police at any location nominated by them, to access any telecommunication device capable of storing digital data or information, 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.

8. Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised, any data or information including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on your telecommunication device/s, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police.

9. 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.

_______________________________

THE HON JUSTICE LUNDBERG

ANNEXURE B

RESPONDENT'S CRIMINAL HISTORY[44]

[44] The source of this information is Exhibit A, pgs 1 - 17.  The shaded offences are ‘serious offences’.  As noted in the reasons, this table is not a complete record of the Respondent’s history of offending, but it does identify the Respondent’s principal past offending.

Offence date	Offence	Sentence
24 Feb 2008	Stealing Criminal Code, s 378	Spent conviction $200
25 Feb 2008	Gains Benefit by Fraud Criminal Code, s 409(1)(c)	Spent conviction $100
1 March 2008	Gains Benefit by Fraud Criminal Code, s 409(1)(c)	Spent conviction $100
12 May 2008	Stealing Criminal Code, s 378	$750
9 May 2009	Careless Driving Road Traffic Act 1974, s 62	$200 MDL Disqualified 3 months; mandatory - concurrent
	No Authority to Drive – Never Held Road Traffic Act 1974, s 49(1)(a)	$100 MDL Disqualified 3 months; mandatory - concurrent
7 July 2009	Unlicensed Vehicle (Owner/Driver) Road Traffic Act 1974, s 15(3)	$100
	No Authority to Drive (Fines Suspended) Road Traffic Act 1974, s 49(1)(a) & (3)(d)	$200
23 August 2009	No Authority to Drive (Fines Suspended) Road Traffic Act 1974, s 49(1)(a) & (3)(d)	$100
	No Authority to Drive (Fines Suspended) Road Traffic Act 1974 s 49(1)(a) & (3)(d)	$200 MDL Disqualified 3 months; mandatory - concurrent
23 Sept 2009	No Authority to Drive – Never Held and Disqualified Road Traffic Act 1974, s 49(1)(a)	$400 MDL Disqualified 9 months; mandatory - concurrent
12 Nov 2009	Assault Occasioning Bodily Harm Criminal Code, s 317(1)	$2000
	Assault Occasioning Bodily Harm Criminal Code, s 317(1)	$2000
4 March 2011	Possess a Prohibited Drug (Cannabis) Misuse of Drugs Act 1981, s 6(2)	$400
12 March 2012	Unlawful assault and thereby did bodily harm with circumstances of aggravation Criminal Code, s 317(1)	Community Based Order: 12 months Concurrent from 20 March 2012
	Breach of Violence Restraining Order Restraining Orders Act 1997, 61(1)
	Breach of Community Based Order Sentencing Act, s 62	$3000
	Breach of Community Based Order Sentencing Act, s 62	$500
13 March 2012	Breach of Violence Restraining Order Restraining Orders Act 1997, s 61(1)	$500 (global)
18 March 2012	Breach of Violence Restraining Order Restraining Orders Act 1997, s 61(1)
22 March 2012	Breach of Violence Restraining Order Restraining Orders Act 1997, s 61 (1)	$500 (global)
	Breach of Violence Restraining Order Restraining Orders Act 1997, s 61(1)	$500 (global)
	Assault Occasioning Bodily harm; Criminal Code, s 317(1)	$2000
11 April 2012	Breach of Violence Restraining Order Restraining Orders Act 1997; s 61 (1)	$500
7 May 2012	2 x Person who breaches CRO or community order without reasonable excuse Sentencing Act, s 131(1)	$500 (global)
28 Sept 2012	Stealing Criminal Code, s 378	$200
17 Nov 2012	Stealing Criminal Code, s 378	$300
20 Nov 2012	Breach of Bail Undertaking Bail Act 1982, s 51(1)	$200
29 Dec 2012	Burglary and Commit Offence in Dwelling Criminal Code, s 401(2)(b)	1 month imprisonment cumulative
	Stealing Criminal Code, 378	No Sent s 11
19 Jan 2013	Aggravated Armed Robbery Criminal Code (WA) s 392(d) – offence dealt with in the Supreme Court This type of offence is a serious offence within the meaning of that term under the HRSO Act – Schedule 1, Division 1, Subdivision 3, item 34.	1 year imprisonment
17 Jan 2015	Drove a vehicle with number plate not issued to that vehicle Road Traffic Act 1974, s97(2)(f)(iii)	$250
	Unlicensed Vehicle Owner/Driver Road Traffic Act 1974, 15(30	$250
	No Authority to Drive (Fines Suspended) Road Traffic Act 1974, s 49(1)(a) & 3(d)	$300
	Driving with prescribed illicit drug Road Traffic Act 1974, s 65AC(1)	$300 MDL Disqualified 3 months; mandatory
3 Feb 2015	Unlicensed Vehicle (Owner/Driver) Road Traffic Act 1974, s 15(3)	$200
	Drove a vehicle with number plate not issued to that vehicle Road Traffic Act 1974, s 97(2)(f)(iii)	$800
	No Authority to Drive (Fines Suspended) Road Traffic Act 1974, s 49(1)(a) & (3)(d)	$200
	Stealing Criminal Code, s 378	$400
17 Feb 2015	No Authority to Drive (Fines Suspended) Road Traffic Act 1974, s 49(1)(a) & (3)(d)	$200
	Unlicenced Vehicle (Owner/Driver) Road Traffic Act, s 15(3)	$200
	Stealing Criminal Code, s 378	$800
22 Feb 2015	Stealing Criminal Code, s 378	$800
7 March 2015	Stealing Criminal Code, s 378	$300
	Assault Occasioning Bodily Harm Criminal Code, s 317(1)	3 months' imprisonment Cumulative
16 Aug 2015	Common Assault Criminal Code, s 313(1)(b)	6 months' imprisonment Suspended
	Breach of Suspended Sentence Dealt with in the Perth District Court	8 months' imprisonment Concurrent
2 Nov 2015	Unlawful Wounding Criminal Code, s 301(1)	8 months’ imprisonment Concurrent Suspended
	Breach of Suspended Sentence Dealt with in the Perth District Court	8 months' imprisonment Concurrent
24 Nov 2015	Breach of Bail Undertaking Bail Act 1982, s 51(1)	1 month imprisonment Suspended
	Breach of Suspended Sentence Dealt with in the Perth District Court	8 months' imprisonment Concurrent
25 July 2016	Stealing Criminal Code, s 378	$1000
20 Aug 2016	Damaging property Criminal Code, s 445	$1000
6 Sept 2016	Stealing Criminal Code, s 378	$1000
3 Nov 2016	Breach of a Suspended Imprisonment Order Sentencing Act, s 80	No Order/Penalty
	Stealing Criminal Code, s 378	18 months' imprisonment Concurrent
2 Jan 2019	Common assault Criminal Code (WA) s 313 (1)(b)	6 months' imprisonment Concurrent
[unknown]	14 x Gains Benefit by Fraud Criminal Code, s 409(1)(c)	$2000 (global)
28 Jan 2019	Aggravated Robbery Criminal Code (WA) s 392(d) – offence dealt with in the Perth District Court This type of offence is a serious offence within the meaning of that term under the HRSO Act – Schedule 1, Division 1, Subdivision 3, item 34.	3 years 6 months' Concurrent
30 Jan 2019	Stealing Criminal Code, s 378	$200
	Possess a Prohibited Drug (Heroin) Misuse of Drugs Act 1981, s 6(2)	$1000 (global)
	Possess a Prohibited Drug (Methylamphetamine) Misuse of Drugs Act 1981, s 6(2)
31 Jan 2019	Stealing Criminal Code, s 378	$300
3 Feb 2019	Stealing Criminal Code, s 378	3 months' imprisonment Concurrent
4 Feb 2019	Stealing Criminal Code, s 378	$500
7 Feb 2019	Stealing Criminal Code, s 378	$400
	Stealing Criminal Code, s 378	$500
9 Feb 2019	Stealing Criminal Code, s 378	$500
10 Feb 2019	Stealing Criminal Code, s 378	$500
12 Feb 2019	Give False Personal Details to Police Criminal Investigation (Identifying People) Act 2002, s 16(8)	$250

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

IHN

Associate to the Honourable Justice Lundberg

17 MAY 2023