The State of Western Australia v Sandon [No 5] - [2025] WASC 32

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- SANDON [No 5] [2025] WASC 32
CORAM:   TOTTLE J
HEARD:   21 JANUARY 2025
DELIVERED          :   6 FEBRUARY 2025
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 Offender - Contravention proceedings - Application under s 53 of the High Risk Serious Offenders Act 2020 (WA) - Whether the respondent will substantially comply with the standard conditions of a supervision order - Whether supervision order will ensure adequate protection of the community - Whether supervision order should be rescinded, affirmed or amended - Supervision order amended - Turns on own facts

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)
High Risk Serious Offenders Act 2020 (WA)
Sentence Administration Act 2003 (WA)

Result:

Supervision order amended and affirmed

Category: B

Representation:

Counsel:

Applicant	:	Ms T Holloway
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 Hart [2019] WASC 4
The State of Western Australia v Sandon [No 3] [2023] WASC 148
The State of Western Australia v Sandon [No 4] [2024] WASC 41
Western Australia v Yates [No 3] [2021] WASC 382

TOTTLE J:

Introduction

The respondent is a high risk serious offender for the purposes of the High Risk Serious Offenders Act 2020 (WA) (the Act) and is the subject of a supervision order made under the Act. By an application made under s 53 of the Act the State of Western Australia alleged the respondent contravened the provisions of the supervision order on 16 occasions. The respondent admitted the contraventions. These reasons explain why I concluded that the respondent should be permitted to live in the community subject to the terms of an amended supervision order notwithstanding his contraventions of the provisions of an earlier supervision order. The terms of the amended supervision order made by me on 21 January 2025 are reproduced in annexure B to these reasons.

Background

On 12 August 2022, the respondent was released from custody having served a term of imprisonment for aggravated robbery of three years and six months. In anticipation of the respondent's release, on 3 June 2022 the State applied for a restriction order under s 48 of the Act.
Shortly before his release from custody, on 20 July 2022, a six‑month post sentence supervision order (PSSO) was imposed by the Prisoners Review Board pursuant to s 74D of the Sentence Administration Act 2003 (WA).
On 28 July 2022 McGrath J found that the conditions of the PSSO rendered it unnecessary to make an interim supervision order because the respondent would be subject to the PSSO whilst in the community awaiting the hearing of the restriction order application.
On 9 February 2023 Lundberg J ordered that the respondent be made subject to an interim supervision order commencing 10 February 2023. The restriction order application was heard on 14 February 2023.
On 17 May 2023 Lundberg J found that the respondent was a high risk serious offender and that the community would be adequately protected if the respondent was subject to a supervision order pursuant to s 48(1)(b) of the Act.[1] His Honour summarised the respondents criminal offending,[2] and detailed the respondents most serious criminal offences in a table which I annex to these reasons.[3]
[1] The State of Western Australia v Sandon [No 3] [2023] WASC 148.
[2] The State of Western Australia v Sandon [No 3] [2023] WASC 148 [29] ‑ [39].
[3] Annexure A.
The supervision order came into effect on 31 May 2023 for a total period of 20 months and 10 days. It was due to expire on 10 February 2025.
Between 2 June 2023 and 16 February 2024, the respondent contravened the conditions of his supervision order on 16 occasions.[4] With the exception of one contravention which related to the possession of a canister of capsicum spray, it appears that the respondent's addiction to illicit substances was the underlying cause of the contraventions. The respondent breached condition 25 of the supervision order on 13 occasions. Twelve of those breaches were related to the respondent's urinalysis results which detected the presence of illicit substances, namely amphetamine, methylamphetamine, morphine, heroin and codeine. The other breach related to the possession of a canister of capsicum spray. The respondent breached condition 27 of the supervision order on two occasions by providing an invalid urine sample. On both occasions the urinalysis test returned invalid preliminary results and the respondent admitted to providing his friend's urine for the sample. On one occasion the respondent breached condition 4 of the supervision order by failing to comply with a reasonable direction of his community corrections officer. On that occasion, the respondent was given a direction to attend Maddington Adult Community Corrections Centre (ACCC) for urinalysis testing and he did not attend.
[4] Exhibit 1, pages 436 - 442.
On various dates in the Magistrates Court, the respondent pleaded guilty to all 16 offences of contravening the supervision order contrary to s 80 of the Act.
It is of some significance that the respondent did not commit any 'serious offence' as defined by the Act whilst subject to the supervision order.
The contravention application was filed on 22 February 2024. McGrath J ordered that the respondent be subject to an interim detention order and that he be detained in custody until the final determination of the application pursuant to s 56(2)(b) of the Act.[5]
[5] The State of Western Australia v Sandon [No 4] [2024] WASC 41.
The hearing of the contravention application was adjourned on two occasions. The primary reason for the adjournments was to allow time for the respondent to find suitable accommodation in the community.
As is apparent from his guilty pleas, the respondent accepted that he had contravened the terms of the supervision order. I am satisfied that the supervision order was contravened in the manner and on the occasions alleged by the State.
On the morning of the hearing on 21 January 2025, the State filed a urinalysis report of a sample collected from the respondent on 20 December 2024. The sample was positive for amphetamine and methylamphetamine.[6] The respondent submitted a further urinalysis sample on 15 January 2025 which was negative for amphetamine and methylamphetamine. Except for the sample collected on 20 December 2024, since being detained in custody under the interim detention order, the respondent's urinalysis test results have not detected the presence of illicit substances.
[6] Exhibit 2.

The respondent's offending

In Sandon [No 3],[7] Lundberg J summarised the respondent's history of offending as follows:[8]
[7] The State of Western Australia v Sandon [No 3] [2023] WASC 148.
[8] The State of Western Australia v Sandon [No 3] [2023] WASC 148, [30] ‑ [39].
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 A] 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.
Although not all the offences in [annexure A] 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.
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. 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.
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. The Respondent had been taking methamphetamines at the time.
The facts of some of the Respondent's other offences are worth describing in order to convey the Respondent's history.
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.
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.
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.
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.
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.
As outlined above, the respondent's commission of 'serious offences', as defined by the Act, is limited to two offences, one for which he was convicted in June 2013 and the other in October 2019. The respondent was under the influence of methylamphetamine when he committed the offences that led to these convictions.

The evidence

The State tendered three volumes of documentary materials which contained the respondent's criminal history, prison records, orders and judgments from earlier proceedings.[9] The materials tendered included the following reports:
(a)a treatment progress report dated 1 August 2024 prepared by Ms Chantelle Place, a forensic psychologist;
(b)a letter in lieu of update treatment progress report dated 8 January 2025 prepared by Ms Place;
(c)a psychiatric report dated 31 July 2024 prepared by Dr Edward Petch;
(d)an addendum psychiatric report dated 4 November 2024 prepared by Dr Petch;
(e)an addendum psychiatric report dated 7 January 2025 prepared by Dr Petch;
(f)a high risk serious offender's performance report dated 16 August 2024 prepared by Ms Pauline Stuart, a senior community corrections officer;
(g)an updated performance report dated 30 October 2024 prepared by Ms Stuart; and
(h)an updated performance report dated 7 January 2025 prepared by Ms Stuart.
[9] 'Exhibit 1' comprises the three volumes of documentary materials.

Dr Petch's evidence

Dr Petch's report of 31 July 2024 was based on his interview with the respondent on 17 June 2024.[10]
[10] Exhibit 1, page 445.
Dr Petch reported that his diagnoses of the respondent were consistent with Attention Deficit Hyperactivity Disorder (ADHD), Substance Use Disorder, Emotionally Unstable Personality Disorder and Antisocial Personality Disorder.
In Dr Petch's opinion the respondent's propensity to commit serious violent offences is underpinned by his substance misuse disorder, his untreated ADHD and his personality disorders.[11] The propensity is largely driven by intoxication, and if that can be managed through the imposition of conditions that stabilise his mood and environment then the overall risk the respondent poses to the community is likely to be substantially moderated.[12] In relation to the most foreseeable risk scenario, Dr Petch described a negative cycle of anti-social behaviour which is 'set off' if the respondent suffers a set‑back and a deterioration in mood:[13]
The main foreseeable scenario remains one in which he suffers a setback, and his mood (which remains potentially changeable) deteriorates. To counter unpleasant feelings, which he has previously found intolerable, he may seek out the company of anti-social friends and be offered alcohol and or drugs as recently occurred. If his guard is down or he needs emotional relief, he may take some, and once started, his coping abilities are unlikely to enable him to cease further use, which is therefore likely to rapidly escalate. Once this happens his life may rapidly deteriorate. Previously he had to leave home, his relationship faltered, he lost his employment (both his structured activity and income ceased), his income fell, his debts may have accrued and ultimately he lost his freedom. These could easily recur. He could fall out of touch with his supervising community corrections officer as has happened in the past (but was largely maintained most recently). These losses would be likely to drive disappointment in himself, and he would be likely to seek further solace in drugs and alcohol. As his use increases and the costs rise, once his financial situation deteriorates he may resort to stealing again and engage in acquisitive criminal activity to fund his habits. It is in this context that his previous violence has occurred, and may well recur. Most recently he was able to avoid offending, but this does not mean the risks were not there.
[11] Exhibit 1, page 514.
[12] Exhibit 1, page 514.
[13] Exhibit 1, pages 513 ‑ 514.
In relation to the respondent's risk of serious offending, Dr Petch concluded as follows.[14]
The propensity of Mr Sandon to commit serious offending is still underpinned by his substance misuse disorder (currently in remission in a controlled environment and on maintenance therapy), 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 is drug debt. In the course of these endeavours, he has on previous 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 again escalate rapidly and would become grave. Should he receive further appropriate treatment for his substance misuse disorders, it is possible that his risk of relapse will reduce. He will have to more actively engage in this than he has done hitherto. In my opinion, abstinence from drugs would be likely to reduce the overall risk of serious violence that the community faces from Mr Sandon. As things stand Mr Sandon still poses a moderate to high risk that he will commit future serious violence and in my opinion, this risk is likely to increase in certain situations, particularly if he is unsupervised and untreated or if he relapses into substance misuse again.
The risk of him relapsing into substance misuse is itself dependent on other factors. These include his other symptoms, for example mood stability and ADHD symptoms. If these are stable, his risk of relapsing into substance misuse is reduced. Psychosocial factors relate to his stability in relationships, jobs, housing and peer group influences. If these are stable, the risks of relapsing into substance misuse is reduced. If they are unstable, the risk of substance misuse will escalate. Last time he relapsed, he placed blame on the stress of compliance with his order whilst juggling his reporting and work commitments. His housing, peer group and relationship pressures remained stable (at least until the substance misuse had restarted). There are therefore three main approaches to reducing his risk of relapse into substance misuse: treat his substance use through replacement therapy, residential and community-based rehabilitation and ongoing psychological input, optimise his other mental health conditions through ongoing treatment, and thirdly optimise his psychosocial functioning in the community. Substance misuse may recur despite these measures.
Should the court find that it appropriate to allow the restriction order to continue, it may not be necessary to impose a continuing detention order in order to manage his risk of substance misuse. Incarceration of itself has not appeared to have significantly ameliorated Mr Sandon's risk in the past. It may be possible to adequately manage his risk in the community if appropriate supervision conditions are put in place and further interventions made to reduce the risk. The conditions of the PSSO and the supervision order demonstrated that the provisions of that order have provided a degree of protection to the community. These however may however not be sufficient to manage the risk should he relapse and start to use drugs and or alcohol.
If further treatment interventions are made in respect of his substance misuse and his other disorders, in the longer term it is likely that the risks could be managed in the community without the need for ongoing supervision. In my opinion though, until they are made, his risk of relapse into substance misuse remains high, and following this the risks of serious offending will escalate, so that a close degree of supervision will be needed for the foreseeable future.
[14] Exhibit 1, pages 514 ‑ 515.
Dr Petch made the following recommendations to manage and reduce the respondent's risk of relapse into substance abuse and the consequential risk of serious offending.

Monitoring Strategies

Dr Petch recommended that the respondent be subject to a number of 'monitoring strategies' to enable the early detection of warning signs indicating that the respondent's risk has escalated.[15] The strategies include, the imposition of reporting requirements to a community corrections officer, occasional visits to his home environment to ensure his accommodation is appropriate, random drug and alcohol testing, a review of electronic devices as required to monitor his interactions and associations, and a requirement that he disclose his existing and new relationships to his community corrections officer.

Treatment Strategies

[15] Exhibit 1, page 515.

Dr Petch made a number of treatment recommendations to assist stabilising the respondent's mood and related substance abuse.[16] First, referral to a treating psychiatrist for the assessment and treatment of ADHD, endorsing both pharmacological and psychological intervention. Dr Petch reported a possible link between the respondent's ADHD and his substance misuse and is of the opinion that pharmacological treatment with stimulant medication in a controlled environment may bring the respondent's impulsivity under control and bring order into his life which may obviate the respondent's drive to use illicit substances.[17]
[16] Exhibit 1, pages 515 ‑ 516.
[17] Exhibit 1, pages 499, 516.
Second, referral to a treating psychiatrist to consider pharmacological treatment for the respondent's emotionally unstable personality disorder.[18] The respondent's personality disorder has contributed to mood fluctuations which the respondent finds difficult to control when he is intoxicated, thus driving him towards anger, aggression and violence.[19] In Dr Petch's opinion, mood-stabilising medication may diminish the extent and frequency of the respondent's mood swings and allow him to regain a degree of control over his prevailing mood and anger.[20]
[18] Exhibit 1, page 502.
[19] Exhibit 1, page 516.
[20] Exhibit 1, pages 502, 516.
Third, referral to a psychologist for possible treatment with dialectical behaviour therapy to provide the respondent with techniques to manage stress, emotional turmoil, anger and increase his tolerance to stress.[21]
[21] Exhibit 1, page 516.
Fourth, methadone replacement therapy couple with psychological input to assist the respondent's abstinence from illicit drugs and aide his stability.[22]
[22] Exhibit 1, page 516.
Fifth, referral for possible re‑admission to a drug rehabilitation programme to assist in relapse prevention, coping skills and anger and stress management. Dr Petch reported that the respondent previously attended the Goldfields Rehabilitation Service in Kalgoorlie but relapsed and left the programme early after completing only six weeks. Despite this failed attempt, Dr Petch believes that re‑admission to a drug rehabilitation programme would be helpful and that contributing to the respondent's difficulty with the last attempt was the fact that the placement in Kalgoorlie was away from his support network.
Sixth, attendance at a community‑based violence programme.

Supervision Strategies

Dr Petch recommended there be a complete abstinence from drugs and alcohol and the respondent be required to remove himself from the company of, and not associate with, any person who has or is suspected of having drugs and that he be restrained from entering licensed premises until he has completed a drug and alcohol rehabilitation programme.[23]

Duration of the supervision order

[23] Exhibit 1, page 517.

Dr Petch recommended the duration of a supervision order be at least 24 months from any future date of release to ensure the respondent has demonstrated an enhanced motivation to change, ongoing abstinence, time for referrals and waiting lists for the relevant consultations, time for treatment to be effective and to be evaluated and time to demonstrate an enhanced stability with ongoing treatment.[24]
[24] Exhibit 1, page 517.
Dr Petch's updated addendum psychiatric report of 7 January 2025 was primarily concerned with the suitability of the respondent's proposed accommodation which had become available through a friend of the respondent's sister, Ms X. Ms X has offered to rent the respondent a room in her family home with her two children. Ms X lives near the respondent's sister who has the care of his 8‑year‑old daughter. Dr Petch commented that the accommodation 'is a potentially stable set of circumstances, suitable for optimising [the respondent's] functioning in the community'.[25]
[25] Exhibit 1, page 535.
Ms X is considering moving to another suburb in May 2025 to be closer to family. She has, however, said that she would be amenable to the accommodation arrangement with the respondent continuing in the event that she does move. Dr Petch reported that if after May 2025 the respondent has no alternative accommodation and is effectively rendered homeless then it is foreseeable that his drug and alcohol use would escalate and the effects upon his risk of committing a further serious offence would become grave.[26] In Dr Petch's opinion, the respondent appears to be motivated to find alternative longer‑term accommodation, Dr Petch commented that his chances of doing so from the community are significantly enhanced compared to trying to source accommodation from custody.[27] Dr Petch concluded that, for the moment, the proposed accommodation seemed to be appropriate for as long the respondent can reside there.[28]
[26] Exhibit 1, page 535.
[27] Exhibit 1, page 535.
[28] Exhibit 1, page 536.
In his oral evidence, Dr Petch emphasised the importance of focusing on aspects of the respondent's ongoing management which would help control his drive for intoxication and drug use, thus reducing the risk that he would commit a serious offence. This could be achieved by controlling the respondent's environment in a manner targeted at stabilising his mood, lifestyle and the related risk of relapse. In addition to the recommendations made in his report, Dr Petch gave evidence that this could be facilitated by imposing tailored conditions that are not overly restrictive.
In Dr Petch's opinion the conditions of the supervision order should ideally strike a balance between, on the one hand, providing the respondent with the necessary stability and structure but on the other hand, not be so restrictive such that the respondent's frustration with the conditions would drive him to relapse into substance abuse. In Dr Petch's opinion this balancing exercise would be served best if the conditions imposed afforded some flexibility at the discretion of his community corrections officer:[29]
Anything to reduce the burden on him, but to ensure that the ability of the State to impose conditions where they're needed, if the risk changes, would be helpful. And it may only need to be temporary — you know — if, for example, there was a lapse getting back on track, and then back to as you were, or if the circumstances change within his relationships, for example. But his Community Correction Officer will be across all that, and I think it's important, as time goes on, that there is sufficient flexibility to be able to manage the degree of risk that Mr Sandon poses, but not go over the top and be restrictive, which we know has led to enhanced risk, not reduced risk.
[29] ts, page 198.
Relatedly, Dr Petch was asked about the desirability of the imposition of a curfew. When last in the community on a supervision order, the respondent reported to Dr Petch that his frustrations with the restrictive conditions such as the 11.00 pm curfew affected his mood and 'drove him to use'. Dr Petch felt that his opinion on whether a curfew would assist or impede the respondent's risk of relapsing into drug use fell outside his area of expertise, but he was not convinced that a curfew would necessarily be helpful.[30]
[30] ts, page 181.
When asked about the inclusion of a restriction on alcohol Dr Petch said:[31]
I don't have a strong opinion. I think that, unless it's absolutely necessary, an order about alcohol he might find restrictive, but on the other hand it might serve to reduce the risk, if he doesn't use large quantities of alcohol. I don't think small quantities of alcohol is a particular problem for him, but large quantities of alcohol over a long period of time might be a problem. So it might be, depending on – on the court's wishes – it – it might be sensible to leave it to the discretion of his community officer, if – if that is possible, to agree with him in advance what is sensible and what is not sensible. You know, lots of people in the community drinks small – small amounts of alcohol with no problem, and I wouldn't want to restrict him from doing that, unless, of course, if his use is escalating, and it's becoming out of control, and it's associated with drug use, and the risk of serious violence is thought to be escalating. And at that point, we might think, 'Well, actually, you need to cut down on the alcohol use or stop.'
[31] ts, page 186.
Dr Petch was asked about the recent positive drug test and the impact that it had on his opinion about the ability for the respondent to be adequately managed in the community if he was re‑released on a supervision order. In response he said:[32]
I think it just highlights to the court the issue of his drug use and the strength of his condition being live. It's not an academic issue. It's a real issue that affects him day to day ... It reminds us all that we need to be vigilant about his use, because we know that his use … has in the past been linked to serious offending ... The drive to use is still strong, despite the fact that this hearing was coming up, he used, whatever the circumstances were. He has used in prison before. He has used in the community before. It's not always the case that drug use leads to violence. It doesn't, but it can do, and that's what the court ... has to be mindful of, in evaluating the risks and the links between the substance misuse and the violence- serious violence as defined by the Act ... So it just focuses ... our attention on the fact that this is a live issue and needs ongoing management.
[32] ts, page 180.
When asked about the respondent's ability to cope with the conditions of a supervision order if released into the community,[33] Dr Petch gave evidence that although it would take some time to acclimatise, he was of the opinion that the respondent would do so quickly.
[33] ts, page 184.
Dr Petch agreed that the respondent 'seemed to be very open to engagement in treatment',[34] and that he had demonstrated a significant improvement regarding his response to supervision'.[35]
[34] ts, page 197.
[35] ts, page 197.
In relation to the respondent's foreseeable risk of offending described at [20] above, Dr Petch pointed out some recent developments that mitigate the circumstances which have historically contributed to the respondent's cycle of offending. He broadly referred to these as the 'pillars of a stable existence' which included the stable accommodation which has been secured by the respondent, financial security facilitated by the respondent's recent compensation pay out and his eligibility to receive social security benefits through Centrelink, the respondent's stable relationship with his partner and the prospect of establishing a work routine by finding a job in the construction industry which the respondent previously enjoyed.

Ms Stuart's evidence

Ms Stuart has been the respondent's primary supervising officer since July 2022. In her report of 16 August 2024, Ms Stuart recorded that the respondent attended weekly supervision sessions as directed and that his level of engagement was typically positive. She described the respondent as 'open and forthcoming with discussions relating to his drug use, general functioning and structure/use of time'.[36]
[36] Exhibit 1, page 519.
Ms Stuart reported that while subject to the PSSO the respondent was initially open to engaging in substance abuse counselling but he 'has historically failed to engage with individual substance abuse counselling whilst in the community'.[37]
[37] Exhibit 1, page 520.
In relation to the respondent's family and other community supports, Ms Stuart identified the respondent's positive relationship with his sister, who has the care of his daughter, and his partner who recently gave birth to his second daughter. Other than this limited positive support network, the respondent was unable to identify any positive peer influences and admitted that his peer group all use illicit substances.
In Ms Stuart's 7 January 2025 report she recorded that Ms X had agreed to rent the respondent a room while he and his partner attempt to source a private rental. Ms Stuart reported on the accommodation arrangement as follows:[38]
[Ms X] disclosed she is considering relocating to [a suburb] in May 2025 when her lease expires to be closer to extended family, although informed [Ms Stuart] she would be willing to continue the arrangement and allow [the respondent] to relocate with the family should he not already have secured his own rental accommodation.
[Ms X] was provided some detail regarding [the respondent's] offending behaviour and was already aware it was violent in nature. [Ms X] was conscious [the respondent] was receiving pharmacotherapy (Methadone) for treatment of his opioid dependence and presented with a realistic view that he may relapse into drug use, although reinforced she has a strong zero tolerance approach to illicit drug use or criminal behaviour and informed this will not be permitted on her property. [Ms X] reported her first concern was for her children and [the respondent] would have to find a new residence if he could not adhere to her boundaries. [Ms X] disclosed she had an issue with Methylamphetamine herself in the past, however, has not used illicit substances since before the birth of her seven-year-old son. [The respondent's] peers would not be permitted to visit the home, although [Ms X] was happy for [the respondent's] partner and the children to visit during the day. [Ms X] further stated that the home was too small for [the respondent's] partner and four children to stay overnight and understood [the respondent] would be required to spend each night at the property. She expressed her intention to move both of her children into one bedroom to allow [the respondent] to have his own privacy.

[38] Exhibit 1, pages 541 ‑ 542.

At the hearing on 21 January 2025, Ms Stuart gave evidence that she had a positive relationship with the respondent and that he had agreed to engage in substance abuse counselling. Ms Stuart's opinion was that at present, the respondent is 'thinking clearly' and 'motivated to remain offence free'.[39] Ms Stuart also said:[40]
Can I just say, though, that his circumstances are very different to when he was offending. At the time when he was previously offending, he was homeless, where now he's in a stable relationship, children, has got accommodation and finances to find other accommodation.
[39] ts, page 208.
[40] ts, page 210.
When asked about a proposed condition regarding the consumption of alcohol, Ms Stuart gave evidence that the officers are unable to monitor what a small amount of alcohol is and that in her opinion the condition would have to impose a total ban on alcohol or nothing. Observing that the condition could allow the consumption of alcohol if prior approval of the community corrections officer was obtained, Ms Stuart was asked 'if, for instance, [the respondent] wanted to attend a family event or something in particular, he could come to you?' Ms Stuart responded:[41]
He could in theory, yes, come and ask. And if it was – he had shown that he wasn't drinking, that might be something that we would consider further down the order.
[41] ts, page 206.
When asked about the purpose of the curfew condition, Ms Stuart responded that it was to ensure the respondent was at home at night, whereas previously he had gone out late in the evening to purchase drugs. Ms Stuart accepted that the respondent had also purchased drugs in the daytime and that the time of day had no impact on whether or not the respondent would purchase drugs.[42]
[42] ts, page 207.
Ms Stuart gave evidence that in the initial stages of the supervision order, it was her impression that the respondent did not understand the gravity of the situation he was in but she is of the opinion that he understands now and that when he was arrested before being detained on the interim detention order he realised that if he did not change then his detention in custody would persist.[43]
[43] ts, pages 208, 210.
There is one final matter that came to light through Ms Stuart's evidence. This was that the positive urinalysis test result of 20 December 2024 followed a request by the respondent for testing. That would tend to suggest both a level of openness on the respondent's part about his addiction and an acceptance of responsibility on his part to address the consequences flowing from it.

Section 55 of the Act and applicable legal principles

The provisions under the Act in relation to contravention proceedings are materially the same as the provisions under the now repealed Dangerous Sexual Offenders Act 2006 (WA) (the DSO Act). For this reason, the principles established by the authorities in relation to the DSO Act guide the application of the provisions of the Act.
Section 53 of the Act specifies the circumstances in which the applicant may apply for an order under s 55.
Section 55 of the Act provides:
(1)If, on the hearing of an application under section 53, the court is satisfied on the balance of probabilities that the offender to whom the application relates has contravened or is contravening a condition of a supervision order, the court must -
(a)rescind the supervision order and make a continuing detention order in relation to the offender; or
(b)except as provided in section 29, make an order amending the conditions of the supervision order, or extending the period for which the offender is to be subject to the supervision order, or both; or
(c)except as provided in section 29, make an order affirming the supervision order without amendment or extension.
(2)If, on the hearing of an application under section 53, the court is satisfied on the balance of probabilities that the offender to whom the application relates is likely to contravene a condition of a supervision order, the court must –
(a)rescind the supervision order and make a continuing detention order in relation to the offender; or
(b)except as provided in section 29, make an order -
(i)amending the conditions of the supervision order; or
(ii)amending the conditions of, and extending the period for which the offender is to be subject to, the supervision order.
(3)In deciding which order to make under subsection (1) or (2), the paramount consideration is to be the need to ensure adequate protection of the community.
The respondent, given that he is subject to the supervision order, is an 'offender' to whom the application relates for the purposes of s 55.
The references in s 55 to a 'continuing detention order' are references to 'an order that the offender be detained in custody for an indefinite term for control, care, or treatment'.[44] The references in s 55 to a 'supervision order' are references to 'an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate, in accordance with s 30'.[45]
[44] High Risk Serious Offenders Act 2020 (WA) s 26(1).
[45] High Risk Serious Offenders Act 2020 (WA) s 27(1).
Section 29 provides:
(1)A court cannot make, affirm or amend a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made, affirmed or amended.
(2)The onus of proof as to the matter described in subsection (1) is on the offender.
(3)This section does not apply to the making of an interim supervision order.

The term 'standard condition' is defined in s 3 of the Act to mean, in relation to a supervision order, a condition which under s 30(2) of the Act must be included in the order. Section 30(2) provides:
(2) A supervision order in relation to an offender must require that the offender —
(a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender's current name and address; and
(b)report to, and receive visits from, a community corrections officer as directed by the court; and
(c)notify a community corrections officer of every change of the offender's name, place of residence or place of employment at least 2 days before the change happens; and
(d)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 section 31 or 32); and
(e)not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and
(f)not commit a serious offence during the period of the order; and
(g)be subject to electronic monitoring under section 31.
Therefore, the effect of s 29(1) and s 29(2) of the Act is that the offender must satisfy the court on the balance of probabilities that he will substantially comply with the standard conditions set out in s 30(2) before the court can amend or extend a supervision order, or do both, pursuant to s 55(1)(b) or affirm a supervision order pursuant to s 55(1)(c).
For the court to be satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions of a supervision order, it must be satisfied that the offender 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 Act, namely the adequate protection of the community by the management and the mitigation of the offender's risk of committing a serious offence.
Even if the court is satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions set out in s 30(2), this will not necessarily mean that a supervision order should be amended, extended or affirmed. This is because by reason of s 55(3) the paramount consideration, in deciding whether to make an order under s 55(1), is the need to ensure the adequate protection of the community. Accordingly, even if the court is satisfied that an offender will substantially comply with the standard conditions of a supervision order, there may be circumstances in which, despite such a finding, the court is not satisfied that releasing the offender on a supervision order will ensure the adequate protection of the community.[46]
[46] Western Australia v Yates [No 3] [2021] WASC 382 [22] ‑ [30].
In this case there is no doubt that the respondent has contravened the conditions of the supervision order and the court is required to make an order under s 55 (1).

Assessment factors

In Director of Public Prosecutions for Western Australia v Hart,[47] Fiannaca J considered the meaning of 'substantially comply' in relation to the provisions of the DSO Act. His Honour identified the following factors to consider in relation to the meaning of 'substantially comply':[48]
[47] Director of Public Prosecutions (WA) v Hart [2019] WASC 4.
[48] Director of Public Prosecutions (WA) v Hart [20] ‑ [52].
1.the offender's attitude to the conditions of the supervision order (in particular whether he is likely to deliberately flout the conditions);
2.his capacity to comply with the conditions;
3.what measures there are in place to ensure he 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 DSO Act;
5.the respondent's motivation to remain offence free and in the community;
6.any willing participation in a sex offender treatment programme;
7.abstinence from drugs;
8.conduct while in prison; and
9.demonstrated gains in treatment, self-management and life skills.
His Honour made a number of general observations concerning the assessment of prior contraventions which are useful to set out below:
(a)the fact that the respondent has contravened the conditions of a supervision order will not necessarily result in a continuing detention order;
(b)given the onerous nature of supervision orders, missteps are to be expected; and
(c)the frequency or regularity of contraventions might inform the question of whether the person will substantially comply.
Even if I am satisfied that on the balance of probabilities the respondent would substantially comply with the standard conditions, in deciding whether to rescind the supervision order and make a continuing detention order or affirm the supervision order, I remind myself that the paramount consideration is the need to ensure the adequate protection of the community.

Disposition

Save the matter of the curfew that I comment on in the next paragraph, I accepted the opinions expressed by Dr Petch and Ms Stuart in their respective reports and accepted that their recitation of the facts was accurate. I made factual findings in accordance with the summaries of their evidence contained in these reasons.
I was not satisfied that the supervision order should include a curfew condition. The utility of a curfew condition is that it would restrict the respondent's ability to procure illicit drugs at night as he has done in the past. That said, if the respondent were intent on taking illicit drugs it is unlikely that a night‑time curfew would prevent him from obtaining drugs though it might make it more difficult. My concern was that a curfew would be perceived by the respondent as an unnecessary restriction on his freedom to which he might react adversely without the concomitant benefit of achieving the object of the curfew by denying the respondent the opportunity to secure drugs. Moreover, illicit drug use by the respondent is likely to be detected by random urinalysis testing.
There is a substantial overlap between the considerations that bear on the question of whether the respondent will comply with the standard conditions of a supervision order and whether a supervision order will ensure the adequate protection of the public.
These observations may be made.
First, the respondent complied with the standard conditions of the supervision order made on 17 May 2023.
Second, the respondent has engaged positively with Ms Stuart who, as recorded earlier, described him as 'open and forthcoming with discussions relating to his drug use, general functioning, and structure/use of time'.
Third, the respondent has accommodation in Ms X's family home. Ms X is aware of the respondent's history and has said that she will not tolerate any use of illicit drugs. There is a potential difficulty constituted by the possibility that the presently available accommodation may only be available until May 2025. This potential difficulty was not an insuperable obstacle to the making of a supervision order. Were he not to be released on a supervision order the respondent had no prospect of obtaining longer term accommodation. If the risk that the respondent's proposed accommodation arrangements come to an end in May 2025 transpires, then the respondent will require very close supervision but he will be in the best position that he could be in to find alternative accommodation. Further, he will be looking for alternative accommodation with his partner.
Fourth, on re‑entering the community the respondent will have the support of his partner of some two years. This is in contrast to the situation that existed when released into the community in 2022 when the respondent appears to have had no pro‑social supports and entered into a succession of short‑term relationships including one with a woman who had been supplying him with drugs.
Fifth, until the positive urinalysis report of 20 December 2024 the evidence points to the respondent having been abstinent from drugs while in prison pursuant to the Interim Detention Order. This contrasts with his use of illicit drugs while serving the custodial sentence imposed on him in October 2019. Of course, the positive report of 20 December 2024 is very concerning but as Dr Petch observed drug addiction is a life‑long problem.[49] The reality is that relapses occur and therein lies the importance of the support structures provided by an appropriate supervision order.
[49] ts, page 189.
Sixth, the respondent is a high risk serious offender and, as I have said, I accept Dr Petch's evidence about the risk of the respondent committing further serious offences but it must be borne in mind that the respondent's commission of serious offences is limited to two offences one committed 12 years ago and one committed six years ago. With one exception (the offence involving possession of the capsicum spray) his offending while the supervision order has been in place has all involved misuse of drugs and is a manifestation of his substance use disorder.
Seventh, when released into the community, the respondent will be subject to the terms of the supervision order which provide a controlled environment and a structure that will support the respondent. Taken with the support the respondent will derive from his partner and with her a stable family background, the support of his sister and safe and supported accommodation, the respondent is well placed to rehabilitate himself. That is not to say that it will be easy or that there will not be setbacks but the structures that I have just described will assist the respondent in dealing with the difficulties and overcoming the setbacks.
Taken in combination the matters that I have described in the preceding paragraphs satisfied me that the respondent would comply with the standard conditions of a supervision order and separately that the supervision order (as amended by me) would be sufficient to adequately protect the community. The amended supervision order is set out in annexure B to these reasons.

Annexure A

Annexure B

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MH
Associate to the Honourable Justice Tottle
6 FEBRUARY 2025