The State of Western Australia v Slater [No 4] - [2024] WASC 241

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- SLATER [No 4] [2024] WASC 241
CORAM:   FIANNACA J
HEARD:   10 & 13 MAY 2024
DELIVERED          :   13 MAY 2024
FILE NO/S:   SO 7 of 2021
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
KEITH RONALD SLATER
Respondent

Catchwords:

Criminal law - High Risk Serious Offenders Act 2020 (WA) - Contravention of supervision order - Lack of suitable accommodation - Difficulty in allowing supervision order to continue - Whether desirable to make interim detention order

Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

Interim detention order issued

Representation:

Counsel:

Applicant	:	Ms D McDonnell
Respondent	:	Ms A Fedele

Solicitors:

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

Cases referred to in decision:

State of Western Australia v Corbett [No 5] [2017] WASC 115
The State of Western Australia v Slater [No 2] [2021] WASC 465
The State of Western Australia v Slater [No 3] [2023] WASC 22

FIANNACA J:

(This judgment was delivered extemporaneously and has been edited from the transcript.)

Introduction

This is an application by the State of Western Australia, under s 53(2) of the High Risk Serious Offenders Act 2020 (WA) (the Act), for an order under s 55 of the Act that the supervision order made in respect of the respondent under s 48(1) of the Act, by Forrester J on 8 February 2023,[1] be rescinded, and that the court make a continuing detention order in respect of the respondent. The applicant also seeks an order under s 56(2)(b) of the Act that the respondent be detained in custody while proceedings in respect of the application for an order under s 55 are pending. I will refer to that order as an 'interim detention order'. The applicant filed a minute of proposed orders programming the application to a hearing, which included the proposed interim detention order.
[1] The State of Western Australia v Slater [No 3] [2023] WASC 22 (Slater [No 3].
The application was heard by me on an urgent basis on Friday, 10 May 2024. The respondent was represented by counsel, Ms Fedele, who did not oppose the programming orders, but had not had sufficient opportunity to provide the respondent with advice, or obtain instructions from him, in respect of the proposed interim detention order. That was understandable, given that the matter was brought on at short notice.
Accordingly, at the conclusion of the hearing on 10 May 2024, I made orders programming the application to a hearing on 27 September 2024, but adjourned the application in respect of the interim detention order until this afternoon (13 May 2024) so that Ms Fedele could obtain instructions.
Having heard further submissions, I am of the view that it is appropriate and necessary to make an interim detention order for the following reasons.

History

On 8 February 2023, Forrester J made a supervision order in respect of the respondent, pursuant to s 48(1)(b) of the Act, having found that he is a high risk serious offender, in accordance with the provisions of the Act. That is, her Honour found that it was necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against an unacceptable risk that he would commit a serious offence, as defined in the Act: Slater [No 3]. Her Honour found that the unacceptable risk related to offending of a violent, sexual nature: Slater [No 3] [223] - [229]. While her Honour was satisfied that a restriction order was necessary, as there was no other means by which the community could be protected against the unacceptable risk, her Honour was of the view that adequate protection of the community could be provided by the conditions of a supervision order, if the respondent were in the community.
Her Honour arrived at that view notwithstanding the fact that the respondent had been subject to an interim supervision order under the Act, pending the determination of the restriction order application, and had contravened requirements of that order on several occasions. He had been convicted of 24 charges, under s 80(1) of the Act, of contravening requirements of the order. The contraventions included illicit drug use and issues with the respondent's electronic monitoring equipment. One of the contraventions involved the respondent removing his electronic monitoring device, an offence that attracts a mandatory minimum penalty of 12 months' imprisonment. The respondent was sentenced accordingly upon being convicted of that offence.
I will return, shortly, to her Honour's reasons for being satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions of a supervision order,[2] and that such an order was appropriate. I note, however, that, at the time that her Honour arrived at her decision, the respondent was still serving the term of 12 months' imprisonment that had been imposed in respect of the contravention involving the removal of his electronic monitoring device.
[2] As required by s 29 of the Act.
The respondent was released on the supervision order, which contained 44 conditions, on 1 March 2023. Since then, he has been convicted under s 80(1) of the Act of 22 further offences of contravening requirements of the supervision order. He also has charges pending in the Magistrates Court for three further alleged contraventions of the supervision order, concerning two alleged breaches of a curfew and an alleged failure to charge his electronic monitoring device. Those offences are alleged to have been committed by the respondent on 17, 18 and 19 April 2024. If convicted of those offences, apart from any penalty that may be imposed separately for the offences, the respondent will be liable to serve a term of suspended imprisonment of 6 months and 15 days that was imposed on 16 April 2024 for other offences of contravening requirements of the supervision order. The respondent will be required to serve that term of imprisonment, unless the court finds that it is unjust to require him to do so.
The respondent is currently remanded in custody in respect of the pending charges. His next appearance is on 14 May 2024, at which time a bail application is expected to be made. It seems to me there are some difficulties that the respondent will need to overcome before he will be granted bail, having regard to his history and the evidence apparently available in respect of the alleged offences, but most significantly because of the fact that he does not have available to him at this stage appropriate accommodation.
Given that a bail application may be made, the applicant sought an urgent hearing of this application so that the court could consider the need to detain the respondent in light of what the applicant submits is a significantly elevated risk that the respondent will commit a serious offence.

Statutory provisions and legal principles

The provisions of the Act that are relevant to the application for the interim detention order are s 53(2)(b) and s 56(2). Section 53(2)(b) enables the State to apply for an order for the offender to be detained in custody while proceedings on the application for an order under s 55 are pending. The court's power to make such an order is contained in s 56(2). That subsection provides that the court may at any time in the pending proceedings (that is, the proceedings pending in respect of the contravention application):
(a)if the offender is detained in custody, order the offender to be released subject to subsection (3), or
(b)if the offender is not detained in custody, order the offender to be detained in custody.
Subsection (3) of s 56 provides:
The court cannot order the offender to be released unless it is satisfied on the balance of probabilities that —
(a)releasing the offender is justified by exceptional circumstances; and
(b) the offender will substantially comply with the standard conditions of the supervision order, including any amendments to the standard conditions made under subsection (7)(b).
The question of what is meant by 'detained in custody' in s 56(2)(a) was considered by Quinlan CJ in The State of Western Australia v Slater[No 2][2021] WASC 465. His Honour was of the view that, prima facie, 'detained in custody' within the meaning of s 56 means detained pursuant to the provisions of the Act. His Honour said, at [19]:
Section 56(2)(a) cannot be construed as providing this court with a general dispensing power to release persons who are otherwise in custody, either as sentenced prisoners or on remand for other offences. In the context of pt 4 div 5 of the Act, in my view, the expression 'detained in custody' would ordinarily apply to a person who is in custody as a consequence of having been arrested pursuant to a warrant issued under s 51 of the Act, in relation to a suspended or anticipated contravention of the supervision order. An order of the court would be necessary to 'release' such a person from custody, and so s 56(2)(a) would apply, including the requirements of section 56(3).
That view of the Chief Justice has been adopted in other cases since then. I respectfully agree with his Honour's interpretation in any event. His Honour went on to consider the appropriate approach that should be taken to an application under s 56(2)(b). His Honour said, at [24] and [25]:
Accordingly, I propose to consider the State's application on the basis that it is an application that I make a positive order under s 53(2)(b). For that reason, no issue of exceptional circumstances arises.
Rather, the real issue is that which applies generally to an interim detention order (under s 46(2)(c)) or an interim supervision order under (s 58(2)(c)), namely, whether the court is satisfied that to ensure adequate protection of the community it is desirable to make either an interim detention order or an interim supervision order. That is, in effect, the test that applies to the making of an interim supervision order generally.
I accept the applicant's submission that the test outlined by the Chief Justice is the appropriate test to be applied in determining whether an interim detention order should be made in this case.
The question of whether it is desirable to make such an order requires consideration of all the circumstances, including the respondent's history on the supervision order, the matters in respect of which he has already been convicted constituting contraventions of the requirements of the order, and the pending charges. Most significantly, it requires consideration of whether his conduct over a period of time, and, importantly, most recently, suggests an elevation of his risk of committing a serious offence such that a supervision order may no longer provide adequate protection of the community.
At this stage of the process, of course, the court is required to determine the question of whether it is desirable to make an interim detention order, rather than allowing the respondent to continue to be subject to a supervision order, without the benefit of considering all of the evidence and any further assessment that may be made of the respondent by an expert, as is required by the programming orders I have already made. The determination is also made in circumstances where the court has not heard full submissions as to whether the supervision order to which the respondent has been subject should be rescinded, and a continuing detention order should be made instead. Nevertheless, it is necessary to have regard to the evidence that is available at this stage.

The accommodation issue

One of the most significant factors is that, because the respondent has been remanded in custody since his arrest on 19 April 2024, he no longer has available to him the accommodation where he was residing at the time of his arrest. That accommodation can properly be described as being temporary accommodation, in that he was being housed in a hotel after the accommodation that had been available to him from a family member was withdrawn. When he was released by Forrester J, the availability of accommodation where he would have family support was a factor that was of some significance in her Honour's decision that a supervision order was appropriate, and that the respondent would substantially comply with the standard conditions of a supervision order. In my view, the fact that the respondent does not have such accommodation available to him now is a matter that affects the question of whether he could be expected to substantially comply with the standard conditions of the supervision order or, indeed, with other requirements of the supervision order that was imposed by her Honour.
The fact is that there is no accommodation available to the applicant to return to if he were to be released into the community after his appearance in the Magistrates Court tomorrow.
As I said earlier, that may well be an obstacle to a grant of bail, but I cannot determine the issue in these proceedings on the basis of whether or not bail will be granted. It is a question of whether it is desirable, having regard to all of the circumstances, to make an interim detention order at this time.

Contraventions of the supervision order

Before coming to the factors that were relevant to Forrester J's determination, when her Honour made the supervision order, and the reasons for concluding now that the circumstances have changed, it is necessary to say something about the contraventions of which the respondent has been convicted and those that are the subject of pending charges in the Magistrates Court.

Number and nature of the contraventions

First, the contraventions of which he has been convicted are numerous. As I said, there have been 22 convictions for contravening a requirement of the supervision order. There are some other associated charges involving the use of prohibited drugs, where those offences were effectively the underlying conduct that grounded the contravention offence. The contraventions have consisted of breaches of curfew, being in possession of prohibited drugs (including methylamphetamine and cannabis), disposing of a mobile telephone (which was regarded as the equivalent of deleting data, which is a contravention of a requirement of the supervision order), using alcohol on one occasion, and engaging in conduct that involved him failing to comply with the requirement that he be subject to electronic monitoring. That conduct, on occasions, involved allowing his electronic monitoring device to lose charge, by failing to do what was necessary to ensure that it was charged, and, therefore, not being monitored for periods. There was one occasion, on 9 September 2023, when he was not monitored for a period of 57 minutes. There were subsequent occasions when he was not monitored for a longer period.
It is sufficient to note that the offending by way of contravening requirements of the supervision order, which occurred from May of 2023 through to March of 2024 and included a contravention involving the use of amphetamine and cannabis, which was detected on urinalysis testing, demonstrates a persistent disregard for his obligations under the supervision order.

Respondent's attitude to the supervision order

Indeed, it would not be unfair, it seems to me, having regard to the history outlined in the affidavits in support of the application, being the affidavit of Shae Raine Hazzard affirmed 7 May 2024 and the affidavit of Daniel Sean McDonnell affirmed 9 May 2024, the latter of which annexes the various prosecution notices and statements of material facts in respect of the contraventions, that the respondent has tended to treat the conditions of the supervision order with contempt. It is notable, as is pointed out by Ms Hazzard in her affidavit, that the respondent has, in fact, spent significant periods in custody since he was released on the supervision order. Those periods are set out in paragraph 16 of Ms Hazzard's affidavit. They include a period of 61 days from 17 June 2023 to 15 August 2023 and 106 days on remand from 22 November 2023 to 6 March 2024, and a further period of remand of 18 days from 13 March 2024 to 16 April 2024.
The point to be made from referring to those periods of remand is that the times that the respondent has been subject to the supervision order in the community, during which he has contravened requirements of the supervision order, have not been lengthy. It seems to me that it can properly be regarded as a scenario in which the respondent has persistently contravened his order and has persistently shown his distaste for the conditions to which he is subject. He has said that he regards the conditions to be onerous, but it seems to me that he has indicated an attitude that he ought not to be subject to the requirements of the supervision order at all.
I have arrived at that perception on the basis of the materials that are before me at this stage. The perception may be shown to be wrong in due course, once the respondent has been assessed again for the purposes of the contravention proceedings, but, at this point in time, I do not have any evidence directly from the respondent, whereas I do have detailed evidence from Ms Hazzard in respect of the respondent's conduct.

Efforts made by the Department to find suitable accommodation for the respondent

I am also satisfied, based on the evidence in the affidavit of Ms Hazzard, that the Community Offender Management Unit (COMU) has made significant efforts to find accommodation for the respondent in the past. It was submitted by the respondent's counsel that one might expect that the Department, through COMU, will continue to make such efforts. That may be a fair expectation on the basis of their track record in respect of the respondent in this matter so far, but the fact remains that he does not have accommodation available to him at this point in time.

The pending charges for contravention offences

I turn, then, to the allegations in respect of the pending charges in the Magistrates Court. Ms Fedele said that the respondent intends to plead guilty to the two charges that involve a breach of his curfew. Those are offences alleged to have occurred on 17 and 18 April, for the first count, and on 18 and 19 April, in respect of the second count. There is then a charge that alleges that, being subject to a supervision order, the respondent contravened a requirement of the order without reasonable excuse, by failing to charge his electronic monitoring device. That is alleged to have occurred on 19 April 2024. Ms Fedele has not obtained instructions from Mr Slater in respect of that matter. She said that, while he intends to plead guilty to the charges involving the breach of the curfew, he does not intend to plead guilty to the charge relating to the failure to charge his electronic monitoring device.
As to the charges concerning the breaches of curfew, Ms Fedele submitted that the circumstances are such, as suggested by the instructions she has from the respondent, that the Magistrates Court may conclude that it would be unjust to require the respondent to serve the term of imprisonment that was previously suspended. She submitted that the penalty that will be imposed in respect of those matters may not be a significant penalty.
Ms Fedele submitted that, in all the circumstances, the Magistrates Court may give favourable consideration to an application for bail, although, she quite properly acknowledged that, at this stage, the respondent faces a difficulty in respect of the unavailability of accommodation.
The allegations in respect of the breach of curfew charges are as follows. The first charge, being charge number 22299 of 2024 in the Perth Magistrates Court, is said to be a contravention of condition 4 of the supervision order, which reads that:
The respondent must 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 34 or 35.

The Community Corrections officer is said to have given a written lawful instruction to the respondent on 16 April 2024 (in effect, the curfew requirement) that he was not to leave his designated residence at the particular hotel where he was residing between the hours of 6.00 pm and 6.00 am on Mondays, Tuesdays, Wednesdays, Thursdays, Fridays, Saturdays and Sundays, without permission from a Community Corrections officer.
It is acknowledged that the respondent was given verbal approval to go downstairs, to remain in the vicinity of the entrance to the building to have a cigarette before returning back to his room. That approval was given by his Community Corrections officer.
The allegation is that on 17 April 2024, the respondent was identified as leaving his residence several times throughout the curfew hours. It is alleged that his tracking data identifies him as being present outside of the curfew location for an extended period of time, crossing the road and walking down several alleyways of neighbouring buildings. Inquiries with the hotel and the Perth city camera room, identified that the respondent was loitering around the front of the hotel. He was further identified, through CCTV footage, as having engaged with several members of the public 'varying from groups of intoxicated females across the road from his curfew location to occupants of the hotel and other persons loitering also in the area'.[3]
[3] Affidavit of Daniel Sean McDonnell dated 9 May 2024 (Annexure "AI", Statement of Material Facts for charges PE 22299-22301/24) p 327.
The Statement of Material Facts goes on to say that CCTV identified the respondent out the front … between 10.15 pm and 11.22 pm, but the GPS tracking device identified an even greater period of time, although the CCTV did not capture that. At no time was the respondent seen to have a cigarette in his hand.[4]
[4] Affidavit of Daniel Sean McDonnell dated 9 May 2024 (Annexure "AI", Statement of Material Facts for charges PE 22299-22301/24) p 327.
The next charge, which is charge number 22300 of 2024, is again said to be a breach of the same curfew condition. It is alleged that, on that occasion, on 18 April 2024, the respondent was identified as having left his residence several times throughout the curfew period. His tracking data showed that he was present outside the curfew location for an extended period of time, crossing the road to the hotel across the road. CCTV from the hotel is said to identify the respondent leaving the hotel at approximately 6.30 pm and approaching the other hotel at approximately 7.00 pm. It is alleged that at no point was he seen to have a cigarette in his hand.
He was arrested in respect of the breach of curfew offences on 19 April 2024.
In relation to the third pending charge, to which the respondent intends to plead not guilty (according to his instructions to Ms Fedele), which is charge number 22301 of 2024, it is alleged that he was given a written lawful instruction on 16 April 2024 in respect of being subject to electronic monitoring by an ankle monitor. Amongst other conditions, the instruction included that he was to charge the transmitter for three hours every day, and that he was to immediately return to, or remain at, the place where he was residing and charge the transmitter if it was indicating a low battery. The allegation is that, on 18 April 2024, at approximately 7.12 pm, there was a trigger alert identifying that the respondent's GPS transmitter was low on battery. It is alleged that several attempts were made to locate him, to notify him about charging the device. Phone calls were made to his room. However, there was no answer to those phone calls. It is alleged that members of the hotel security attended the respondent's room and, again, there was no answer. It is alleged that the battery continued to lose power, and at approximately 15 minutes after midnight, the respondent's GPS transmitter went into shutdown, meaning, that it had lost all power and was not being tracked. Police were contacted, along with the Electronic Monitoring Office. At approximately 11.21 pm, officers attended the respondent's room, where they located him, awake. A new tracker was fitted, as, at that point in time, his other tracker was unserviceable. Those are the allegations.
Ms Fedele informed the court that the respondent's instructions are that on 17 and 18 April 2024, when he was outside the hotel, he was looking for cigarettes, including looking for 'bumpers', which are essentially cigarette butts that still have some tobacco that might be smoked. His instructions are that he was approaching 'everyone and anyone' to see if they had cigarettes they would provide him, and that it was in those circumstances (in which he is alleged to have been loitering) that he came into contact with the females, who have been described from the CCTV footage as at least appearing to be intoxicated.
In relation to the battery going flat on 19 April 2024, the respondent has said that he was the one who telephoned the authorities to say that the battery was flat. The fact that there is no mention of that in the Statement of Material Facts to which I referred a short time ago means that there is some doubt as to whether I can rely on what the respondent has said to his counsel. What he has said is not on affidavit. It has not been given to the court by way of evidence; it is by way of information from the bar table. I am prepared to have regard to it as an indication of what the respondent will say in the Magistrates Court in respect of the charges that are still pending. Otherwise, I cannot give the explanations any weight at this point in time, having regard to the observations that were made from the CCTV footage, as described in the statements of material facts.
In any event, as Ms Fedele has quite properly acknowledged, none of what the respondent has said by way of instructions would provide an excuse for his breach of the curfew. He was not having a cigarette. Therefore, he was not within the exception that had been made for him, which was to be able to go downstairs at the front of the hotel. It was not an exception allowing him to go down laneways, or across the road and engage with other people. He was allowed to go to the front of the hotel and smoke a cigarette. That was not what he was doing. He would have been well aware of his obligations to comply strictly with the requirements of the supervision order, having regard to his history of contraventions and the fact that he had been convicted on many occasions of breaching the requirements of the supervision order.

Reasons why it is desirable to make an interim detention order

It is important that I deal next with the difficulty with allowing the supervision order to continue; in other words, the difficulty with not making an interim detention order in circumstances where the respondent does not have accommodation.
The evidence before me indicates that the respondent no longer has accommodation available to him. That was acknowledged on his behalf on Friday and today. He has not provided any evidence to indicate where he might be accommodated if he were to be released again on the supervision order.
With respect to the significance of proposed accommodation, it is important to have regard to the comments made by Hall J in State of Western Australia v Corbett [No 5],[5] to this effect:
Accommodation for a person on a supervision order is not simply a place to live. The location and type of accommodation are factors that are integral to any proper assessment of the risk of reoffending. The absence of suitable accommodation makes it impossible to be satisfied that a supervision order is presently a viable option.
[5] State of Western Australia v Corbett [No 5] [2017] WASC 115.
In my view, that is precisely the situation in which the respondent finds himself. Even if it would otherwise be appropriate to allow him to continue to be subject to the supervision order in the community, it would not be possible for him to continue on his supervision order without suitable accommodation. He would be in immediate breach of a fundamental requirement of the supervision order, which is that he reside at a particular place. There is no particular place for him to reside at this point in time.
In my opinion, in such circumstances, it is necessarily desirable to make an interim detention order for the adequate protection of the community. In the absence of accommodation that can be said to provide, as an integral part of the supervision process, adequate protection of the community, the only option is to make an interim detention order.
However, it seems to me that the circumstances are such that an interim detention order is desirable in any event.
As Ms Hazzard points out in her affidavit, at paragraph 17(a)(xii), when making the supervision order, Forrester J spoke to the respondent directly, saying:[6]
It's the barest of margins and I'm releasing you on this and I'm giving you the benefit of the doubt here, in being satisfied that you can substantially comply with the rules. If you don't, you will only have yourself to blame when you end up in custody. And you will be back in custody until the order is reviewed and you can demonstrate that you will comply.
[6] ts 234 (8 February 2023 before Forrester J).
Her Honour then went on to indicate that she was aware how difficult it is to stay off drugs, particularly when the respondent goes to the place where he was going to be living.
It is necessary, in my view, to have regard to what her Honour said in her reasons in respect of why, notwithstanding the respondent's prior contraventions of the interim detention order, including the very serious contravention that consisted of removing his electronic monitoring device, that she could be satisfied that he would substantially comply with the standard conditions of the supervision order, and that such an order was appropriate. Her Honour said, at [235] - [237]:[7]
While the respondent has many criminogenic factors which require addressing, the most fundamental is his substance use. In the time he was subject to the interim supervision order, the respondent failed to take any real steps towards dealing with the substance misuse issues, or, indeed, engage in any other programmatic intervention.
It is telling that despite this, during the time he was on the interim supervision order the respondent did not commit any offence of a violent or sexual nature. While not minimising the seriousness of the offence for which he is presently imprisoned, and I interpose to say that that was the contravention involving the removal of the electronic monitoring device, the interim supervision order achieved its object, being the protection of the community from serious offending on the part of the respondent, and further, from any violent offending.
I acknowledge that the respondent was not in the community for a significant period of time due to the number of contravention offences he committed. However, contrary to previous occasions, the respondent is now willing to undertake a residential rehabilitation course. Very importantly, he has abstained from drug use in custody since at least March 2022. That is the longest period the respondent appears ever to have been drug-free. If the respondent can remain so, he has a much greater prospect of also remaining offence-free.
[7] Slater [No 3] [235] - [237].
Her Honour then said:[8]
Accordingly, in my view, a supervision order is capable of providing the appropriate level of protection of the community which is required.
[8] Slater [No 3] [238].
In then dealing with the question of whether the respondent would substantially comply with the standard conditions of the supervision order, her Honour said:[9]
However, the experts report that his most recent custodial term appears to have resulted in the respondent finally developing some insight not only into the fact that his substance misuse is a fact that he needs to address to remain offence-free, but that he needs significant assistance in order to address it, including, if possible, residential rehabilitation.
He has expressed a willingness to engage with agencies, which will also address other treatment needs, has indicated a desire to seek out employment opportunities and has hope of obtaining suitable accommodation in the near future. While not overstating its significance, the fact that the respondent has remained drug-free in custody since March 2024 is also an important and tangible indicator of his change in motivation.
None of those factors guarantee that the respondent will comply with the standard conditions of a supervision order. However, they do demonstrate a considerable alteration in his attitude both towards accepting his own risk and his willingness to address the factors which give rise to it.
[9] Slater [No 3] [243] - [245].
Regrettably, in my opinion, the respondent has demonstrated, since he has been released on the supervision order, that what was perceived as a considerable alteration in his attitude, both towards accepting his own risk and his willingness to address the factors which gave rise to it, was somewhat ephemeral. It certainly was not enduring. All of his conduct that is the subject of the contravention offences suggests that his attitude has reverted to one where he does not fully appreciate the risks associated with his drug use and his failure to comply with the requirements of his supervision order, in particular, the directions that he is given by his Community Corrections officer and the need to ensure that the authorities have him under monitoring through his electronic devices on a continuous basis. All these things indicate that he does not have the appropriate insight that seemed to be emerging at the time that her Honour came to the view that a supervision order was appropriate.
As I said earlier in these reasons, the perceptions that I have formed on the basis of the material currently before the court may ultimately prove to be wrong, or it may be that, in due course, the respondent will demonstrate an altered attitude that would favour a finding that he can be managed in the community, subject to a supervision order, and that he will substantially comply with the standard conditions of a supervision order.
In my opinion, the large number of convictions for contraventions of the supervision order at this point in time make it difficult to conclude that the respondent would substantially comply with standard conditions. A number of the convictions relate to standard conditions, in that they relate to directions that have been given to him by the Community Corrections officer.
It was submitted on behalf of the respondent that, as was the case before Forrester J, he has not committed a sexual offence during the time that he has been subject to the supervision order, and the court might conclude from that fact that the order has been effective in protecting the community. What the court is concerned with at this point in time is whether there is an elevation in the respondent's risk that may make the commission of a serious offence more imminent, to the point where it is no longer acceptable for him to be managed within the community, because the management of his risk in the community may not be sufficiently effective to provide adequate protection of the community.
As I pointed out to counsel for the respondent, with all due respect, where the primary risk in the past has been the respondent's drug use and his access to vulnerable women, the fact that he has continued to use illicit drugs, and on at least one occasion, alcohol, the fact that he has put himself out of reach for periods of time, irrespective of how that may have occurred in relation to his monitoring device, and the fact that most recently his contact while he was in breach of his curfew included contact with women who appear to have been intoxicated, irrespective of his claim that he was simply asking for cigarettes, suggests an increase or an elevation of his risk, where the only next step would be the commission of an offence.
It cannot be the case that the court must wait until the respondent has committed an offence of a sexual nature before it can be said that his risk is elevated to the point where the community can no longer be adequately protected. The whole point of the conditions of a supervision order is to be able to identify red flags in the light of conduct that is in contravention of the requirements of the supervision order, or by other conduct that is detected as a result of compliance with the supervision order. Such red flags enable an assessment to be made in respect of the respondent's risk to the community and whether it can be adequately managed within the community, subject to a supervision order.

Conclusion

Having regard to all of those matters, I have come to the conclusion that, at this point in time, it is desirable to make an interim detention order, because I am not satisfied that the community could be adequately protected if the applicant were to be subject again to the supervision order.
For the reasons I have given, it is appropriate at this stage to make an interim detention order.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JH
Associate to the Honourable Justice Fiannaca
2 JULY 2024