The State of Western Australia v Tomasovich [No 2] - [2022] WASC 402

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- TOMASOVICH [No 2] [2022] WASC 402
CORAM:   CURTHOYS J
HEARD:   12 MAY 2022 & 20 JULY 2022
DELIVERED          :   24 NOVEMBER 2022
FILE NO/S:   SO 14 of 2021
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
KAMM LUKE LEVI TOMASOVICH
Respondent

Catchwords:

Criminal law - High risk serious offender - Application for restriction order - Whether the respondent is a high risk serious offender - Whether unacceptable risk that respondent will commit a serious offence if not subject to restriction order - Whether necessary to make restriction order to ensure adequate protection of community - Whether community can be adequately protected by imposition of supervision order - Whether the respondent will substantially comply with standard conditions of a supervision order

Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

Continuing detention order made

Category: B

Representation:

Counsel:

Applicant	:	D S McDonnell
Respondent	:	M Gunning

Solicitors:

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

Cases referred to in decision:

Director of Public Prosecutions (WA) v Carter [2015] WASC 413
Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212
Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007 35 WAR 297
Garlett v The State of Western Australia [2022] HCA 30
State of Western Australia v CF [2021] WASC 20
State of Western Australia v Quartermaine [No 2] [2021] WASC 267
The State of Western Australia v ACJ [2021] WASC 219
The State of Western Australia v Dick [2022] WASC 286
Western Australia v Latimer [2006] WASC 235

CURTHOYS J:

By application dated 22 October 2021, the State seeks a restriction order with respect to the respondent, Kamm Luke Levi Tomasovich, under s 48 of High Risk Serious Offenders Act2020 (WA) (HRSO Act). The State contends that Mr Tomasovich is a high risk serious offender and that it is necessary that the court make an order detaining him in custody for an indefinite term for control, care or treatment.
At a preliminary hearing on 26 November 2021, Quinlan CJ determined that there were reasonable grounds for believing that a later court might, in accordance with s 7 of the HRSO Act, find that Mr Tomasovich is a high risk serious offender. Quinlan CJ ordered that Mr Tomasovich be made the subject of an interim supervision order pursuant to s 58(5) of the HRSO Act.
This restriction order application was heard before me over two days on 12 May 2022 and 20 July 2022.
The State submits that if not made subject to a restriction order, Mr Tomasovich will recommence high risk behaviours, potentially involving substance abuse, which in turn results in Mr Tomasovich being an unacceptable risk of subsequently committing a serious offence as defined by the HRSO Act.
The State filed its customary detailed and accurate submissions setting out the law and the facts. Mr Tomasovich did not take issue with the State's submissions. Accordingly, I have substantially adopted the State's submissions in these reasons.
The issues that I must consider in this application are:
(1)whether Mr Tomasovich is a high risk serious offender; and
(2)if so, whether to make an order that Mr Tomasovich be detained in custody for an indefinite term for control, care or treatment (a continuing detention order) or that he be released into the community subject to conditions that the court considers appropriate (supervision order).

Developments since the initial restriction order hearing

There have been a number of material developments since the restriction order application was first heard on 12 May 2022.
On 17 June 2022, an arrest warrant was issued under s 51 of the HRSO Act on the basis of a reasonable suspicion that Mr Tomasovich was likely to contravene the interim supervision order made by Quinlan CJ.
At a hearing before Fiannaca J on 17 June 2022, his Honour amended the interim supervision order by including additional conditions that require Mr Tomasovich to undergo mental health treatment.
On 29 June 2022, a directions hearing was held before me in which the State applied for the court to hear further evidence on the restriction order application. That hearing occurred on 20 July 2022.
Since 30 June 2022, Mr Tomasovich has been subject to an involuntary treatment order under the Mental Health Act 2014 (WA). He is on injectable antipsychotic medication every four weeks as mandated by the order.[1]
[1] Exhibit G, 1197 (Addendum psychiatric report of Dr Natalie Pyszora dated 17 July 2022 [7] (Addendum Pyszora Report)).
Mr Tomasovich's senior community corrections officer has been changed as a result of his fixation on his previous community corrections officer.[2]
[2] Exhibit G, 1198 ‑ 1199 (Addendum Pyszora Report [13] - [17]).
Further, between July 2022 and October 2022, Mr Tomasovich has been convicted of various charges relating to contraventions of his interim supervision order.
At the date of the initial restriction order hearing, Mr Tomasovich was residing with his mother. On 13 May 2022, that arrangement was deemed unsuitable by the Risk Management Team and Mr Tomasovich was relocated to hotel accommodation, where Mr Tomasovich continues to reside. This placement is financed by the Community Offender Monitoring Unit (COMU).

Statutory framework and legal principles

Under s 35 of the HRSO Act, the State may make an application for a restriction order in relation to a serious offender under a custodial sentence.
A 'restriction order' is a continuing detention order or a supervision order.[3]
[3] High Risk Serious Offenders Act 2020 (WA) s 3 (HRSO Act).
A 'serious offender under custodial sentence' is defined in s 3 of the HRSO Act to mean a person:
(a) who is under a custodial sentence for a serious offence; or
(b) who -
(i) is under a custodial sentence for an offence or offences other than a serious offence; and
(ii) has been under that sentence at all times since being discharged from a custodial sentence for a serious offence;
As at the date of the State's application, Mr Tomasovich was serving a term of imprisonment for a 'serious offence'. He was released on 22 January 2022.
A 'serious offence' is relevantly defined by s 5(1) of the HRSO Act as an offence specified in sch 1 div 1 or specified in sch 1 div 2 and committed in the circumstances indicated in relation to that offence in div 2.[4]
[4] HRSO Act s 5(1).
Mr Tomasovich has committed offences of armed robbery or attempted armed robbery. The offence of robbery is specified in sch 1 of the HRSO Act and accordingly falls within the definition of a 'serious offence'.
The scope of the HRSO Act is broader than that which existed under the former Dangerous Sexual Offenders Act 2006 (WA) (DSO Act), which was limited to persons convicted of a 'serious sexual offence'.
The constitutionality of the HRSO Act, particularly with respect to the offence of robbery, was recently considered by the High Court in Garlett v The State of Western Australia.[5] The majority of the Court rejected the notion that robbery is inherently insufficiently serious to be a permissible basis for seeking a restriction order.[6] Kiefel CJ, Keane and Steward JJ relevantly observed:[7]
The inclusion of an offence, such as robbery, in Sch 1 to the HRSO Act reflects a legislative judgment as to the kinds of offences which may be such as to cause harm of a kind from which the community needs protection different from that provided by the criminal law. It is not inimical to the institutional integrity of the Court to act upon a legislative judgment that robbery should be included in the serious offences listed in Sch 1. That is especially so where an element of the offence is violence to person or property, or the threat of such violence. It is to be borne in mind that the maximum penalty for a contravention of s 392 of the Criminal Code (WA) ranges between imprisonment for 14 years, 20 years and life, depending upon the circumstances of the contravention.
[5] Garlett v The State of Western Australia [2022] HCA 30.
[6] Garlett [77] (Kiefel CJ, Keane & Steward JJ), [207] (Edelman J), [291] (Gleeson J).
[7] Garlett [80].
Edelman J, as part of the majority, noted however:[8]
On the material before this Court and the proper, albeit narrow, interpretation of the HRSO Act, the limit of injustice has not been reached in the application of the HRSO Act to robbery, although it is perilously close. If I had not been satisfied that the HRSO Act, in its legal operation and (so far as can be considered on the material in this case) its practical operation, makes continuing detention orders for robbery an order of last resort in cases of the most serious robberies, then I would have concluded that the HRSO Act was invalid in its application to robbery.
[8] Garlett [207].
In any event, his Honour concluded:[9]
But on the proper interpretation of the HRSO Act and on the material before this Court, the circumstances in which the legal and practical operation of the HRSO Act permit a continuing detention order for robbery are justified and cannot be meaningfully distinguished from those circumstances related to the many serious sexual offences and terrorism-related offences for which this Court has upheld continuing detention orders.
[9] Garlett [207].
In dissent, Gaegler and Gordon JJ held robbery was not a sufficiently exceptional offence to justify conferral on a court a function of creating a liability to detention in custody in order to 'ensure adequate protection of the community against an unacceptable risk' of its commission.[10]
[10]Garlett [155] (Gaegler J), [191], [200] - [201] (Gordon J).
Notwithstanding the divergent opinions in Garlett, the position remains that robbery is validly prescribed as a serious offence for the purpose of the HRSO Act.
The first question that I must determine in an application of this nature is whether Mr Tomasovich is a high risk serious offender. Section 7(1) of the HRSO Act provides that an offender is a high risk serious offender if the court dealing with an application under the HRSO Act:
finds that it 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.
The State bears the onus of satisfying the court that an offender is a high risk serious offender.[11] The court must be satisfied 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 but less than a finding of beyond reasonable doubt, but is otherwise incapable of further definition.[12]
[11] HRSO Act s 7(2).
[12] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [28] (Steytler P & Buss JA).
The court must consider whether the risk of the respondent committing a serious offence would be unacceptable in the absence of a restriction order. The meaning of 'unacceptable risk' was considered by Wheeler JA in Director of Public Prosecutions (WA) v Williams:[13]
In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention. (emphasis added)
[13] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63].
In The State of Western Australia v ACJ,[14] Fiannaca J quoted the above remarks of Wheeler JA and stated further that:
The meaning of 'unacceptable risk' under the DSO Act was considered further in Director of Public Prosecutions (WA) v GTR, where Steytler P and Buss JA said that the word 'unacceptable' connotes a balancing exercise that will take into account the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim), the likelihood of the risk being realised, and the serious consequences for an offender if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order). Again, those principles apply equally to the concept of 'unacceptable risk' as it relates to a 'serious offence' under the HRSO Act.
The need for the court to be satisfied 'to a high degree of probability' is a standard that is greater than a finding on the balance of probabilities but less than a finding of beyond reasonable doubt, but is otherwise incapable of further definition. This does not necessarily mean that the risk must be at some high percentage of probability. A risk may be less than 50%, yet still be unacceptable. However, the court must identify what it is that constitutes the risk and makes it unacceptable and then consider whether or not those matters have been proved to a high degree of probability by acceptable and cogent evidence. (footnotes omitted)
[14] The State of Western Australia v ACJ [2021] WASC 219 [28] - [29].
It is important to note that the HRSO Act does not require that there be no risk of reoffending. Such a requirement could never be met and would mean no person to whom the Act applies would ever be released.[15] The question is whether the risk of reoffending would be unacceptable without a restriction order in place.
[15] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33].
In deciding whether it is satisfied that a person is a high risk serious offender under s 7(1) of the HRSO Act, the court must have regard to the following matters listed in s 7(3):
(a)any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section;
(b)any other medical, psychiatric, psychological, or other assessment relating to the offender;
(c)information indicating whether or not the offender has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by the offender;
(e)any efforts by the offender to address the cause or causes of the offender’s offending behaviour, including whether the offender has participated in any rehabilitation programme;
(f)whether or not the offender’s participation in any rehabilitation programme has had a positive effect on the offender;
(g)the offender's antecedents and criminal record;
(h)the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;
(i)the need to protect members of the community from that risk;
(j)any other relevant matter.
As s 7(3)(j) implies, the list of matters to be considered by the court is not closed.
While s 7(3)(g) provides that the court must have regard to the criminal record in deciding whether a person is a high risk serious offender, the mere fact that a person has committed previous offences does not necessarily mean that there is an unacceptable risk that the person would commit a serious sexual offence in the future. The relevance of a prior record will depend on the nature of the offences committed, the number of them and the period of time over which they occurred. However, past behaviour is often a good indicator of future conduct.[16] Further, 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.[17]
[16] State of Western Australia v CF [2021] WASC 20 [55]; Director of Public Prosecutions (WA) v Carter [2015] WASC 413 [18].
[17] HRSO Act s 7(4).
If the court is satisfied that the offender is a high risk serious offender within the meaning of s 7(1), the court is required to make a restriction order.[18] The question for the court is whether a detention order or a supervision order should be made.[19]
[18] HRSO Act s 48.
[19] HRSO Act s 48(1).
In deciding whether to make a continuing detention order or a supervision order, s 48(2) of the HRSO Act provides that the paramount consideration is the need to ensure adequate protection of the community.[20] The use of the term 'adequate' indicates a qualitative assessment is required. A court should choose the option which is the least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring than adequate degree of protection of the community.[21] It cannot be assumed at the most assured preventative is detention and therefore, the protection of the community will always favour such an order.[22]
[20] HRSO Act s 48(2).
[21] Western Australia v Latimer [2006] WASC 235 [49].
[22] Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14].
Section 29(1) of the HRSO Act provides that 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.[23] The onus is on the respondent to satisfy the court that they will substantially comply.[24] The relevant factors in determining whether the offender will substantially comply with the standard conditions of a supervision order were considered by Fiannaca J in DPP (WA) v Hart[25] in respect of the DSO Act.[26]
[23] HRSO Act s 29(1).
[24] HRSO Act s 29(2).
[25] [2019] WASC 4 [50].
[26] I recently adapted these factors to the HRSO Act in The State of Western Australia v Dick [2022] WASC 286[34].
The powers conferred by HRSO Act are not to be exercised for the purpose of imposing additional punishment on an offender 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. This purpose 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.[27]
[27] State of Western Australia v Quartermaine [No 2] [2021] WASC 267 [14]; DPP v GTR [97] (Murray AJA).

Evidence

At the hearing of the restriction order application on 12 May 2022, the State tendered three volumes of the book of materials.[28] The first two volumes were dated 21 March 2022 and the third volume was dated 13 April 2022. The State relied on the content of the book of materials pursuant to s 84(5) of the HRSO Act.
[28] Exhibit A.
The first volume contains various materials provided by the Department of Justice including, relevantly, copies of Mr Tomasovich's criminal records. The second volume contains materials relating to Mr Tomasovich's offending history in respect of both serious and non-serious offences as defined under the HRSO Act, as well as relevant post-sentence reports and materials.
The third volume relevantly contains the following reports prepared for the restriction order hearing:
(a)psychiatric report of Dr Natalie Pyszora dated 31 March 2022;
(b)psychological report of Dr Tara Yewers dated 8 April 2022;
(c)proposed HRSO management plan prepared by forensic psychologist, Dr Ben Bannister, dated 12 April 2022; and
(d)community supervision assessment prepared by senior community corrections officer, Jodii Nichols, dated 12 April 2022.

Further exhibits were admitted as set out below:
(a)updated community supervision assessment prepared by Ms Nichols dated 10 May 2022;[29]
(b)affidavit of Graeme Campbell Duff affirmed 11 May 2022;[30]
(c)book of Corrective Services incidents;[31]
(d)book of urinalysis reports;[32] and
(e)case notes of forensic psychologist from the Community Forensic Mental Health Service (CFMHS), David Summerton, David Summerton.[33]
[29] Exhibit B.
[30] Exhibit C.
[31] Exhibit D.
[32] Exhibit E.
[33] Exhibit F.
After the initial hearing on 12 May 2022 the State sought to lead further evidence concerning Mr Tomasovich. A fourth volume of the book of materials was filed and admitted without objection.[34] The fourth volume relevantly contains the following reports:
(a)the updated community supervision assessment at [43(a)];
(b)addendum psychiatric report of Dr Pyszora dated 17 July 2022; and
(c)addendum community supervision assessment of senior community corrections officer, Shae Hazzard, dated 19 July 2022.
[34] Exhibit G.
Further oral evidence was heard on 20 July 2022 from Dr Pyszora and Ms Hazzard.
Following the second hearing, the State forwarded a copy of an affidavit sworn by Mr Tomasovich's father. I have admitted the affidavit into evidence.[35]
[35] Exhibit H.

Is Mr Tomasovich a high risk serious offender?

I now turn to consider whether Mr Tomasovich is a high risk serious offender within the meaning of s 7(1) of the HRSO Act taking into account the matters in s 7(3). It is convenient to begin with Mr Tomasovich's antecedents and criminal history.

Antecedents and criminal history - s 7(3)(g)

Antecedents

Mr Tomasovich has given inconsistent accounts of his relevant personal history over time but his mother's accounts as recorded in various reports have been consistent. I principally rely on those accounts.
Mr Tomasovich is a 40-year‑old man having been born on 27 January 1982. He is the eldest of three children born to his biological parents. His parents separated when he was about 10 years old and his living arrangements became somewhat itinerant thereafter.
Mr Tomasovich's behaviour began to deteriorate following his parents' separation. His mother reports that he was frequently misbehaving at school and had no close friends. He began abusing alcohol and drugs from about the age of 14. He informed psychologist, Ms Yewers, that he attended school to Year 9 but eventually completed Years 10 and 11 in prison as an adult.
Mr Tomasovich has relatively close relationships with his parents and siblings. Between 11 January 2022 and 12 May 2022, he was residing with his mother.
I will consider Mr Tomasovich's alcohol and substance use and psychiatric history in addressing other relevant matters under s 7(3)(j) of the HRSO Act.[36]

Criminal history

[36] See [133] - [144].

Mr Tomasovich has an extensive criminal history, having had contact with the criminal justice system from about 16 years old. He has criminal records in Western Australia, South Australia and Queensland.[37]
[37] Exhibit A, 1 - 14.
Mr Tomasovich has committed eight 'serious' offences under sch 1 of the HRSO Act. These offences exclusively comprise armed robbery or attempted armed robbery. I will first summarise the history of this offending before outlining other relevant offending not covered by sch 1.

Serious offences under the HRSO Act

On 11 May 2007, Mr Tomasovich was sentenced to 27 months imprisonment (of which he served 18 months) following a conviction of armed robbery contrary to s 392(c) of the Criminal Code (WA).[38] The offending involved Mr Tomasovich approaching an 82-year-old female unknown to him in a carpark holding a screwdriver. Mr Tomasovich pulled the victim from her vehicle and threw her to the ground. He got into the vehicle and drove away.[39]
[38] Exhibit A, 610 - 611, 628 - 633.
[39] Exhibit A, 619 - 627.
On 3 August 2011, Mr Tomasovich was convicted of three counts of armed robbery and three counts of attempted armed robbery.[40] The offences occurred on three separate dates: 10 March 2010 (one count of armed robbery); 3 April 2010 (one count of armed robbery and one count of attempted armed robbery) and 6 April 2010 (one count of armed robbery and two counts of attempted armed robbery). On each occasion Mr Tomasovich followed a similar pattern of offending.
[40] Exhibit A, 755 - 768.
The offence of 10 March 2010 involved Mr Tomasovich entering a bank and handing a note to the teller demanding money and stating he had a gun. The teller placed $3,000 in a bag and Mr Tomasovich left the bank (first count of armed robbery).[41]
[41] Exhibit A, 643.
On 3 April 2010, Mr Tomasovich again entered a bank demanding money from the teller. However, Mr Tomasovich left without gaining any money (first count of attempted armed robbery). About 30 minutes later, Mr Tomasovich entered a visitor centre where he demanded money from the teller. He lifted his shirt and exposed a replica gun. He took money from the teller and two other employees before leaving (second count of armed robbery).[42]
[42] Exhibit A, 644.
On 6 April 2010, Mr Tomasovich entered a bank armed with a toy gun. He pointed the gun at the tellers and demanded money. He left the premises after being informed that the tellers could not access the large notes (second count of attempted armed robbery). Mr Tomasovich entered a store soon after and still armed with the toy gun and demanded money from two separate employees. Security were called and Mr Tomasovich left the store (third count of attempted armed robbery). A few hours later, Mr Tomasovich entered a pharmacy, pointed the toy gun at an employee and threatened to shoot her unless she emptied the till. The employee removed all cash from the till and gave it to Mr Tomasovich (third count of armed robbery).[43]
[43] Exhibit A, 646 - 647.
Mr Tomasovich pled guilty to the above six charges and was sentenced to a total effective term of imprisonment of 3 years and 2 months.[44]
[44] Exhibit A, 766 - 768.
On 7 August 2019, Mr Tomasovich was found guilty after trial of a further armed robbery charge. The offending involved Mr Tomasovich entering a shopping centre with the intention of robbing a bank. He approached the counter of the bank and stated 'Put all the money in the bag. I have a gun'. He had both hands in his pockets and told the teller not to press any buttons. The teller gave him $3,135 in a bag. He was not armed with a firearm but pretended to be armed. He left the shopping centre with the money.[45] Mr Tomasovich was sentenced on 4 February 2020 to 4 years and 2 months imprisonment.[46]

Other offences not classed as serious offences under the HRSO Act

[45] Exhibit A, 797 - 798.

[46] Exhibit A, 802.

On 26 February 2002, Mr Tomasovich was convicted of stealing a motor vehicle, re-entering a licenced premise, hindering police, burglary and assaulting a public officer. Mr Tomasovich received a fine and was sentenced to 9 months imprisonment.[47]
[47] Exhibit A, 809 - 810.
On 29 July 2003, Mr Tomasovich was convicted of stealing a motor vehicle and stealing a motor vehicle and driving recklessly. The police chased Mr Tomasovich for about four kilometres. Mr Tomasovich was sentenced to 15 months imprisonment.[48]
[48] Exhibit A, 15.
On 24 August 2004, Mr Tomasovich was convicted of two burglary offences and escaping legal custody. He was sentenced to a total effective term of 3 years and 6 months imprisonment.[49]
[49] Exhibit A, 838.
On 31 March 2005, Mr Tomasovich was convicted of stealing, stealing a motor vehicle, two counts of burglary and committing an offence in a place in circumstances of aggravation and attempting to defeat or prevent the course of justice. The charges concerned an incident in which Mr Tomasovich used a stolen vehicle to drive to retail stores where he stole a number of items. Mr Tomasovich later attempted to escape police custody and stole a bicycle in the process.[50] He was sentenced to a total effective term of 12 months imprisonment.[51]
[50] Exhibit A, 15 - 16.
[51] Exhibit A, 5.
On 23 August 2005, Mr Tomasovich was sentenced to 6 months and 1 day imprisonment for an offence of burglary and committing an offence in a place.[52]
[52] Exhibit A, 843.
On 17 March 2009, Mr Tomasovich was convicted of assault occasioning bodily harm and unlawful wounding. Both offences were committed against Mr Tomasovich's then partner. The assault offence occurred around 23 July 2008 when Mr Tomasovich forced his partner to lie down in the hallway before proceeding to kick and punch her several times. She suffered bruising to her face and upper body. The wounding offence occurred on 24 July 2008 when Mr Tomasovich punched his partner several times to the head. She raised her hands in self-protection and received a cut to her finger from a knife Mr Tomasovich was holding. He then stabbed her to the hand and later stabbed her to the wrist with a used syringe.[53] Mr Tomasovich was sentenced to a total effective term of 6 months and 1 day imprisonment.[54]
[53] Exhibit A, 846 - 947.
[54] Exhibit A, 849.
On 8 January 2015, Mr Tomasovich was convicted of two counts of assault of a public officer. Mr Tomasovich had punched one court security officer to the nose and mouth and another court security officer to the top of the head.[55] He was sentenced to a total effective term of 10 months imprisonment.[56]
[55] Exhibit A, 853.
[56] Exhibit A, 1.
Mr Tomasovich has been convicted of assaulting a public officer on a further three occasions, namely, 8 August 2016, 7 February 2020 and 20 March 2020. The offending involved often unprovoked punching to the faces of prison officers.[57] One of the offences involved Mr Tomasovich holding a pen near the eye of a female prison officer. Mr Tomasovich received terms of imprisonment for these offences ranging from 2 months to 6 months.

Reports prepared by qualified experts - s 7(3)(a)

[57] Exhibit A, 860 - 886.

On 26 November 2021, Quinlan CJ made orders that Dr Pyszora and Dr Yewers prepare reports pursuant to s 46(2)(a) and s 74 of the HRSO Act. Dr Pyszora also prepared an addendum report for the purpose of the second restriction order hearing. I have identified these reports above.[58]

Dr Natalie Pyszora

[58] See [41], [43].

In preparing her initial report, Dr Pyszora interviewed Mr Tomasovich at East Perth Adult Community Corrections Centre on 9 March 2022 and 16 March 2022. She also reviewed relevant records and conducted several meetings.[59]
[59] Exhibit A, 1018 - 1019 (Psychiatric report of Dr Natalie Pyszora dated 31 March 2022 [5] - [6] (Pyszora Report)).
Dr Pyszora diagnosed Mr Tomasovich with:
(a)antisocial personality disorder;[60]
(b)substance use disorder (based on the fact that he is currently dependent on benzodiazepines which has been associated with his prior serious offending);[61] and
(c)delusional disorder, persecutory type (continuous).[62]
[60] Exhibit A, 1076 - 1077 (Pyszora Report [296]).
[61] Exhibit A, 1077 (Pyszora Report [297] - [298]).
[62] Exhibit A, 1077 (Pyszora Report [299]).
Dr Pyszora undertook an assessment of Mr Tomasovich's risk of future reoffending utilising the following risk assessment tools: the Hare Psychology Checklist - Revised (PCL-R); the Violence Risk Appraisal Guide - Revised (VRAG-R) and the Historical, Clinical and Risk Management - 20 - Version 3 (HCR‑20 v3).
Mr Tomasovich's score on the PCL-R was 30 with one item omitted due to unreliable self-report information (namely, the presence of promiscuous sexual behaviour). His pro-rated score was 31.6.[63] Dr Pyszora noted in her report that any score of 30 or higher is used in Australia to classify an individual as a psychopath.[64]
[63] Exhibit A, 1078 (Pyszora Report [305]).
[64] Exhibit A, 1078 (Pyszora Report [304]).
Mr Tomasovich's score on the VRAG-R places him in the 95th percentile and in the highest of nine categories for violent re-offending risk. On average, persons in this risk category have a 76% likelihood of committing a further violent offence within 5 years, and an 87% likelihood of violently reoffending within 12 years.[65]
[65] Exhibit A, 1079 (Pyszora Report [310]).
Dr Pyszora summarised a large number of historical, clinical and management risk factors under the HCR-20 v3 risk assessment tool which are present in Mr Tomasovich and are associated with an increased risk of future serious offending.[66]
[66] Exhibit A, 1081 - 1083 (Pyszora Report [316] - [335]).
Dr Pyszora identified that Mr Tomasovich as having significant outstanding criminogenic treatment needs, including:
(a)antisocial personality disorder;
(b)antisocial cognitions;
(c)antisocial companions;
(d)family and relationship stressors;
(e)substance abuse, lack of employment;
(f)relative lack of education;
(g)lack of pro-social leisure or recreation activities; and
(h)mental health treatment needs.[67]
[67] Exhibit A, 1084 (Pyszora Report [336]).
Dr Pyszora considered there is no imminent risk of serious offending while Mr Tomasovich is under the current interim supervision order, or if he was made subject to a supervision order under appropriate conditions.[68]
[68] Exhibit A, 1085 (Pyszora Report [344]); ts 54 - 55 (12/5/2022).
Nevertheless, Dr Pyszora is of the opinion that if Mr Tomasovich is not made subject to a restriction order, he would present a high risk of committing a serious offence as defined in the HRSO Act.[69]
[69] Exhibit A, 1085 (Pyszora Report [346]).
Dr Pyszora considers that Mr Tomasovich is most likely to engage in serious offending in the context of an armed robbery or attempted armed robbery. That offending:[70]
would involve instrumental violence by threatening victims with the presence of a gun. He would either have a replica or toy gun or he would state that he had a gun. He is most likely to act alone in serious offending. He would undertake a degree of planning and basic anti-surveillance tactics such as change of clothing in an attempt to disguise his identity.
Mr Tomasovich is most likely to target commercial premises such as banks or shops where he believes the staff would be trained to not resist a robbery. Although he denies specifically targeting women in his previous offending, he is unlikely to commit an offence against a male or anyone whom he believes may retaliate. In addition to planned robberies of commercial premises he may undertake opportunistic armed robberies against vulnerable victims in the community, as he did against an 82‑year‑old woman in 2006.
[70] Exhibit A, 1084 (Pyszora Report [339] - [340]).
Dr Pyszora relevantly made the following recommendations for the prevention of future violent behaviour by Mr Tomasovich:[71]
In my opinion, if Mr Tomasovich were not subject to a Restriction Order he would present a high risk of committing a serious offence (within the meaning of s.5 HRSO 2020).
Management plans for prevention of future serious offending need to be based on monitoring, treatment, supervision, and victim safety planning as outlined below.
Monitoring strategies should be implemented to ensure early detection of warning signs of escalating risk. These strategies should include regular review by the [senior community corrections officer], regular and random drug and alcohol testing (to monitor for complete abstinence from illegal drugs and alcohol), [senior community corrections officer] contact with key family members and supports to obtain collateral information on his behaviour and presence of any warning signs, and home visits by [police].
[71] Exhibit A, 1085 (Pyszora Report [346] - [348]).
Dr Pyszora prepared an addendum report for the purposes of the second restriction order hearing on 20 July 2022. In that report, Dr Pyszora detailed the deterioration in Mr Tomasovich's mental health since the initial hearing. She relevantly summarised the written update provided by consultant forensic psychiatrist from the CFMHS, Dr McCreanor, to COMU on 15 June 2022:[72]
[S]ince Mr Tomasovich moved to the hotel on 13/5/22 there had been· number of concerns regarding his behaviour .... [Dr McCreanor] noted that he had also sent thought disordered letters to both Maylands and Cannington police stations. The letters were noted to be nonsensical with bizarre grammar and spelling, espousing paranoid ideas. She noted the recent incidents at the Ombudsman's Office. She thought that overall he appeared to be escalating in his levels of paranoia and dysfunctional behaviour. She noted that previously there had been difficulties in justifying treatment under the [Mental Health Act] as when he had been reviewed by CFMHS, he was able to provide plausible explanations for behaviours and no symptoms were directly observed. Additionally, risk to others had been nonspecific and not imminent. He had also been agreeable to taking oral medication. She noted that his current interim supervision order was not legally robust enough to ethically justify enforcing treatment, but the escalating concerns suggested swifter action was required. She planned to review him on 16 June with the intention of commencing [an injectable antipsychotic medication] fortnightly. However, on that day he refused to commence depot medication and exited the moving CFMHS car that he was being transported in by Dr McCreanor and a senior mental health nurse.
[72] Exhibit G, 1200 - 1201 (Addendum Pyszora Report [25]).
Dr Pyszora also reported that Mr Tomasovich's senior community correction officer, Ms Hazzard, had experienced Mr Tomasovich exhibiting similar paranoid behaviour to that described by Dr McCreanor:[73]
On 16 June 2022 Mr Tomasovich advised during a telephone call with Ms Hazzard that he had emailed correspondence to the Parliamentary Inspector of the Corruption and Crime Commission and the Public Sector Commission. This was raised with police however there was no information at the time indicating the letters or correspondence had been passed on. During the same phone call he stated that he believed officers had broken into his hotel room and stolen his wallet to place him in financial hardship and they were conspiring to have him placed back in custody. He further commented that he felt he was being followed in the community by [police officers] and they were watching him all the time. He denied that these were SOMS officers and said they were officers he had previously engaged with, and he recognised their faces.
[73] Exhibit G, 1201 (Addendum Pyszora Report [26].
Mr Tomasovich's deteriorating mental health and escalating risk prompted a review of Mr Tomasovich by Dr McCreanor for referral to hospital under the Mental Health Act. The relevant developments were summarised by Dr Pyszora as follows:[74]
On 22 June 2022 Mr Tomasovich attended the Frankland Centre for review by Dr McCreanor and he was placed on forms lA and 4A [of the Mental Health Act] to [Royal Perth Hospital (RPH) Emergency Department]. He was transported to RPH by officers from SOMS. Assessment by Dr McCreanor of the CFMHS noted that over the last two months Mr Tomasovich had become increasingly paranoid and disorganised. He believed he had been targeted by police and prison officers. He stated that they were entering his hotel room, slashing his clothes, and stealing items. He believed chemicals were being pumped into his room, leading to him taping up the doors, windows, and vents. He would take erratic trips on public transport to lose his 'tail'. He had mailed multiple thought disordered letters to police stations. It was noted that he had attended the Ombudsman's Office to report his grievances and behaved in an aggressive manner. On assessment at RPH Mr Tomasovich admitted being suspicious and paranoid of other hotel occupants, believing they had been calling him a paedophile, dropping toys on his doorstep, and breaking into his room when he was not there. He also believed that all other hotel residents had card access to his room.
Mr Tomasovich told RPH staff that he had depression and anxiety but was not revealing overt psychotic symptoms and was refusing treatment with antipsychotics. On 24/06/2022 he was placed on a form 6a inpatient treatment order under the MHA 2014 by the psychiatrist. After further assessment and discussion with Dr McCreanor, he received depot Zuclopenthixol Deaconate 200mg IMI on 30/6/22 and was placed on a Community Treatment Order under the [Mental Health Act]. His next appointment with CFMHS was on 5/07/2022 and next depot was due on 14/7/22. The discharge summary notes a primary diagnosis of delusional disorder. While Mr Tomasovich was in hospital a directions hearing was held on 29/06/2022. Suitable accommodation was raised as a significant issue which needed to be addressed.
[74] Exhibit G, 1201 - 1202 (Addendum Pyszora Report [29] - [30], [32]).

Dr Pyszora provided an updated risk assessment using the same risk assessment tools used in her initial report. Mr Tomasovich's score on the PCL-R, VRAG-R and HCR-20 v3 remained unchanged. However, in respect of the HCR-20 v3, Dr Pyszora reported an escalation in in the dynamic risk factors of professional services and plans, living situation and treatment and supervision. She described the escalation in these factors as follows:[75]
Future Problems with Professional Services and Plans
This risk factor was previously not present for Mr Tomasovich. This factor is now partially if not fully present due to the complex challenges faced by professional services in managing his risk. To date, agencies involved in Mr Tomasovich's risk management have been able to quickly mitigate the dynamic risk factors which have arisen since release, including the need to rotate [senior community corrections officers], have two COMU staff see him every time, secure and finance temporary accommodation, commence involuntary antipsychotic medication under the [Mental Health Act], have the matter returned to court for review of conditions, and most recently undertake arrest for alleged contraventions. This high level of resource-intensive multiagency supervision and surveillance has enabled [WA Police], [COMU], and CFMHS to take swift action before the situation has escalated to a high-risk situation. Future success will depend on the conditions of any ongoing legal order mandating management of his risk factors as well as the ability of agencies to quickly intervene in the event of warning signs related to escalating risk. It will also depend on the ability to obtain comprehensive collateral objective evidence of his mental health and behaviours as he is unreliable in self-report. Should Mr Tomasovich remain in the community, agencies will need to continue to closely collaborate and share information in order to manage risk.
Future Problems with Living Situation
This risk factor was previously partially present for Mr Tomasovich. This risk factor is now present. Mr Tomasovich was placed in temporary accommodation on 13 May 2022 with the financial support of COMU. His father's address has been considered and found not suitable. I understand that he has refused to allow COMU to assist in seeking other accommodation on his behalf and he has made efforts to do so on his own. However, to date, there is no suitable alternative accommodation available.
…
Future Problems with Treatment or Supervision Response
This risk factor was previously present for Mr Tomasovich. This factor is still present. Mr Tomasovich has had a negative response to being challenged by his [senior community corrections officer] about breaches of his order. He has not engaged in psychological therapy and will need a specialised approach to engagement and motivation to make any treatment gains as highlighted in my previous report and the report of Dr Yewers. An approach of enlightened self‑interest is more successful in individuals with high psychopathy scores as it encourages motivation related to the individual's gaols (essentially 'what's in it for me') rather than focusing on pro-social or empathy-based gaols.
[75] Exhibit G, 1208 - 1209 (Addendum Pyszora Report [64] - [65], [67]).
Dr Pyszora also relevantly discussed the continued presence of risk factors such as personal support and stress and coping:[76]
Future Problems with Personal Support
This risk factor was previously partially present for Mr Tomasovich. The factor remains partially present. He self‑reports that he receives some support from his mother and father as well as assistance by his brother.
…
Future Problems with Stress or Coping
This risk factor was previously present for Mr Tomasovich and it remains present. He is anxious about the prospect of being placed on an HRSOA supervision order and is fearful of returning to prison. He has not developed any pro-social coping strategies. I note the current allegation of possession of methamphetamine and being in possession of a fitpack when received into prison. This may indicate that he has relapsed into methamphetamine use. Should he secure alternative accommodation this will inevitably create financial strain unless he is able to secure employment. Financial strain will place him at risk of instrumental serious offending.
[76] Exhibit G, 1208 - 1209 (Addendum Pyszora Report [66], [68]).
Dr Pyszora's recommendations for Mr Tomasovich elaborated upon those made in her initial report. She recommended that any restriction order made by the court should be a minimum of five years duration to ensure Mr Tomasovich can develop the required internal control strategies over his substance abuse and serious offending and to provide a significant period for stabilisation of his mental health. The management plans outlined in her previous report were said to still be appropriate but that enhanced conditions would be required to adequately manage the risk.[77]
[77] Exhibit G, 1211 (Addendum Pyszora Report [81]).
Dr Pyszora stated that the proposed conditions of a supervision order she discussed with COMU:[78]
would require a level of multiagency resources to manage his risk. The proposed conditions could provide adequate protection to the community should appropriate accommodation be available and should Mr Tomasovich have sufficient financial resources to mitigate against his risk of returning to armed robbery offences. It would also depend on some improvement in his compliance with conditions and on productive engagement in supervision and psychological therapy. If these factors are not in place, in my opinion his community management may be unviable.
[78] Exhibit G, 1211 (Addendum Pyszora Report [82]).
In the event the court decides to place Mr Tomasovich on a continuing detention order, Dr Pyszora concluded that:[79]
he should be monitored by prison mental health services and encouraged to remain compliant with mental health treatment. However, … there would be no legal compulsion under the [Mental Health Act] to mandate his compliance with regular depot antipsychotic medication in prison.
Return to a custodial environment is highly likely to exacerbate Mr Tomasovich's mental health issues as his paranoid delusional beliefs about being poisoned, gassed, sexually assaulted, and persecuted predominantly involve custodial staff. If a deterioration in mental health is combined with refusal of treatment, his risk of committing a grievance fuelled attack against custodial staff will be increased. His risk is therefore likely to be managed through restrictive practices, as it was prior to his release from the Special Handling Unit in January 2022. Unfortunately, the lack of beds at the Frankland Centre means that he could not have prolonged treatment in an appropriate therapeutic setting. His mental health and risk to others would therefore have to be closely monitored by custodial and mental health staff in prison. He would also need to engage in individual psychological therapy so that he can begin to address his outstanding criminogenic needs while in prison, should his mental health and risk status allow safe 1:1 engagement.

Dr Tara Yewers

[79] Exhibit G, 1211 - 1212 (Addendum Pyszora Report [83] - [84]).

In preparing her report, Dr Yewers interviewed Mr Tomasovich on 24 March 2022 and 4 April 2022. She also consulted Ms Nichols.[80]
[80] Exhibit A, 983 (Psychological report of Dr Tara Yewers dated 8 April 2022 [7] - [9] (Yewers Report)).
Dr Yewers reports that Mr Tomasovich's anti-social personality and psychopathic features are of high relevance to his offending. These traits manifest in various ways, including a disregard for lawful behaviour; anti-authoritarian attitudes; grievance thinking; hostile rumination; callousness and indifference to the rights of others; deceit and manipulation; aggressiveness; and violence.[81]
[81] Exhibit A, 1005 (Yewers Report [112]).
Dr Yewers reports some difficulty in ascertaining a definitive mental health diagnosis for Mr Tomasovich due, in part, to his inconsistencies in presentation. She refers to a discharge summary from the Frankland Centre in which Mr Tomasovich was assessed as having strong motivation to exaggerate or feign psychopathology for gain.[82]
[82] Exhibit A, 991 (Yewers Report [42] - [43]).
Dr Yewers assessed Mr Tomasovich's risk of reoffending using the Violence Risk Scale (VRS) and PCL-R tools.
Using the VRS, Dr Yewers summarised her application of the various static and dynamic risk variables to Mr Tomasovich from which she arrived at a total score of 61, placing Mr Tomasovich in the 'high' risk level for any violent recidivism. Among offenders with a score between 60 and 65, 49.5% reoffend violently within 4.4 years.[83]
[83] Exhibit A, 1013 (Yewers Report [150]).
Mr Tomasovich's score on the PCL-R was 26, falling in the 'medium' range for psychopathy.[84]
[84] Exhibit A, 1015 (Yewers Report [154]).
Dr Yewers considers the most likely risk scenario for Mr Tomasovich to be one that involves hostile or reactive violence. That offending:[85]
is likely to occur in the context of his longstanding proneness to grievance-fuelled thinking, chronic delusional beliefs about the malevolence of others, and anti-authoritarian attitudes. A corresponding deterioration in his mental health, heightened hostile rumination, increased expression of hostility or anger, and/or relapse to drug use (including misuse of prescription medication) would portend escalating risk. The violence is likely to be unprovoked and unpredictable, and probably perpetrated against a person Mr Tomasovich believes has wronged him. The vulnerability of the victim, drug intoxication, and use of a weapon will determine the extent of the harm that is inflicted.
[85] Exhibit A, 1015 (Yewers Report [158]).
A further risk scenario identified by Dr Yewers is the use of instrumental violence to achieve a particular outcome, as occurred in Mr Tomasovich's armed robbery offences.[86]
[86] Exhibit A, 1015 - 1016 (Yewers Report [159]).
Dr Yewers' opinion based on her findings is that Mr Tomasovich presents with a high risk of future serious offending if not subject to a restriction order.[87] The factors said to be pertinent to Mr Tomasovich's violence are his antisocial personality and delusional persecutory beliefs, which are chronic, have endured over time and are unlikely to shift markedly or quickly.[88]
[87] Exhibit A, 1016 (Yewers Report [162]); ts 60 (12/5/2022).
[88] Exhibit A, 1016 (Yewers Report [160]).
Dr Yewers states that should the court make a supervision order, that it should be in place for five years. She outlines certain matters that she recommends should inform the conditions of any supervision order.[89]

Other assessments - s 7(3)(b)

Dr Ben Bannister

[89] Exhibit A, 1016 (Yewers Report [162]).

Dr Bannister is a forensic psychologist. He prepared a report to provide an overview of Mr Tomasovich's intervention history and comment on potential intervention options to address the dynamic risk factors identified in the reports of Dr Pyszora and Dr Yewers.
In his report, Dr Bannister discusses Mr Tomasovich's three counselling sessions with forensic psychologist from CFMHS, David Summerton, in February and March 2022. Mr Summerton characterised Mr Tomasovich's overall presentation as loquacious, distracted and meandering. Mr Tomasovich struggled formulating treatment-based goals, stating he wanted to think about the future rather than the past. As Mr Tomasovich was forthright about being unmotivated to engage in treatment, and Mr Summerton considered some degree of motivation was required for the counselling to proceed, no further contact has been scheduled.[90]
[90] Exhibit A, 979 - 980 (Proposed HRSO management plan prepared by Dr Ben Bannister dated 12 April 2022 [4] (Bannister Report)).
Dr Bannister concluded that in the event Mr Tomasovich is made subject to a restriction order, he will have access to individual counselling to address outstanding treatment needs. He said that Dr Summerton was open and available to reengage with Mr Tomasovich, should his motivation increase.[91]

Jodii Nichols

[91] Exhibit A, 980 (Bannister Report [9]).

Ms Nichols was Mr Tomasovich's senior community corrections officer between January and April 2022. She prepared two community supervision assessment reports for the purpose of this restriction order application.
In Ms Nichols' first report of 12 April 2022, she states that since his release, Mr Tomasovich has been compliant with his reporting obligations and has attended supervision on a weekly basis, although he has expressed frustration with the conditions of his interim supervision order and has been challenging when instances of non-compliance have been addressed.[92]
[92] Exhibit A, 1098 - 1099 (Community supervision assessment prepared by Jodii Nichols dated 12 April 2022, 9 - 10 (First Nichols Report)).
The report concludes with 37 draft conditions of a proposed supervision order.[93] This includes four additional conditions not currently comprised in the interim supervision order. Those conditions pertain to medical treatment and sharing of information.[94]
[93] Exhibit A, 1104 - 1108 (First Nichols Report, 15 - 19).
[94] Exhibit A, 1102 - 1103 (First Nichols Report, 13 - 14).
The views of Dr Pyszora and Dr Yewers on the proposed conditions are incorporated into Ms Nichols' report.[95]
[95] Exhibit A, 1102 ‑ 1104 (First Nichols Report, 13 - 15).
Ms Nichols' second report of 10 May 2022 provides an updated assessment of Mr Tomasovich's compliance with the interim supervision order since the previous report.
It reports concerns that arose in relation to Mr Tomasovich's attitude towards Ms Nichols and his mental health which resulted in him being transferred to a new community corrections officer on 22 April 2022. The decision to transfer was based on the expert assessments completed by Dr Pyszora and Dr Yewers.[96]

Shae Hazzard

[96] Exhibit G, 1193 - 1194 (Updated community supervision assessment prepared by Jodii Nichols dated 10 May 2022, 1 - 2 (Second Nichols Report)).

Ms Hazzard is Mr Tomasovich's current senior community corrections officer and has been so since May 2022. She prepared an addendum community supervision assessment report dated 19 July 2022.
The report provides an updated assessment as to Mr Tomasovich's circumstances including his mental health and compliance with the interim supervision order since the first restriction order hearing on 12 May 2022.
The report concludes with 42 draft conditions of a proposed supervision order. The conditions have been amended and additional conditions included since Ms Nichols' first report. Dr Pyszora supports the updated conditions to assist in monitoring and addressing Mr Tomasovich's ongoing risk factors.[97]

Propensity to commit serious offences in the future - s 7(3)(c)

[97] Exhibit G, 1230 (Addendum community supervision assessment prepared by Shae Hazzard dated 19 July 2022, 16 (Hazzard Report)).

Mr Tomasovich has been convicted of eight serious offences, with all those convictions being for armed robbery or attempted armed robbery. He committed his first armed robbery offence when he was 24 years old and his last armed robbery when he was 35.
Mr Tomasovich has also been convicted of several offences not defined as serious offences under the HRSO Act, including violent offences such as assault occasioning bodily harm and unlawful wounding and six counts of assaulting of a public officer (two of which occurred during his most recent period of incarceration).
Mr Tomasovich's offending history indicates that he has a tendency to commit serious offences, namely armed robberies, as well as other non-serious offences against the person.

Pattern of offending behaviour - s 7(3)(d)

At the preliminary hearing, Quinlan CJ remarked on Mr Tomasovich's 'history of recurrent offending in a serious manner, with impulsivity and recklessness for many years'.[98]
[98] ts 13 (26/11/2021).
Dr Pyszora also commented on Mr Tomasovich's 'established pattern of offending behaviour'.[99]
[99] Exhibit A, 1084 (Pyszora Report [336]).
Mr Tomasovich has committed several armed robberies and attempted armed robberies targeting commercial premises and, on occasion, vulnerable members of the community, as well as other violent offences. His offending involves the use of instrumental violence and reactive violence. The offences often involve the use of weapons, either to inflict physical injury or to threaten and intimidate.
Mr Tomasovich's criminal history indicates a general escalation in frequency of serious offending when not incarcerated.

Efforts to address offending behaviour - s 7(3)(e)

Mr Tomasovich has participated in several rehabilitation programs during his various periods of incarceration.
Mr Tomasovich has completed the following in-prison programs:
(a)Choices Low Intensity in 2002;
(b)Moving On From Dependencies in 2005;
(c)Cognitive Brief Intervention in 2011;
(d)Violent Offender Treatment in 2012; and
(e)Think First in 2013.[100]
[100] Exhibit A, 1064 - 1065 (Pyszora Report [238] - [244]).
Mr Tomasovich does not appear to have completed any other treatment programs or educational courses, despite an identified need for treatment for violent offending.[101]
[101] See exhibit A, 66 - 70.
On 16 April 2020, it was recommended that Mr Tomasovich participate in a Violent Offending Treatment Program however, he was unable to do so because he was housed in the Special Handling Unit (SHU) at Casuarina Prison.[102]
[102] Exhibit A, 945.
When asked recently by Dr Yewers about the programs he had undertaken in prison, Mr Tomasovich said that they were not particularly helpful but he was swayed to do them because he was told that he would be moved 'out of self-care and back to mainstream' if he did not participate.[103]
[103] Exhibit A, 1001 (Yewers Report [90]).
Since his release on the interim supervision order, Mr Tomasovich has attended three sessions of psychological counselling with David Summerton. Mr Tomasovich indicated to Mr Summerton that one hour per week of counselling was a significant impost on his time. Mr Summerton reported that Mr Tomasovich was forthright about being unmotivated to engage in treatment, explaining that he would only do so if compelled, and not by choice. Therefore, no further contact has been scheduled. Mr Summerton did state to Dr Bannister that he was open to reengaging with Mr Tomasovich if his motivation increased.[104]
[104] Exhibit A, 979 - 980 (Bannister Report [4]).
Dr Yewers notes that high factor 1 PCL-R scores such as Mr Tomasovich's score have been identified as indicative of responsivity issues that may interfere with treatment, including weaker working alliances, particularly between the client and therapist, decreased treatment progress, and increased program attrition.[105]
[105] Exhibit A, 1015 (Yewers Report [155]).
Mr Tomasovich expressed to both Dr Pyszora and Dr Yewers an intention to attend Narcotics Anonymous meetings. However, he reported that he was unable to do so due to his curfew, the need to gain approval from his senior community corrections officer and his lack of time due to other commitments. When Ms Nichols asked Mr Tomasovich about his desire to attend Narcotics Anonymous meetings, he stated that gaining employment was his main priority.[106]

Whether rehabilitation programs have had positive effects - s 7(3)(f)

[106] Exhibit A, 1097 (First Nichols Report, 8).

Mr Tomasovich's participation in various treatment programs between 2002 and 2013 did not lead to a discernible change in his offending patterns. Indeed, he has since committed offences similar in nature to the offending prior to treatment intervention.
Mr Tomasovich continues to admit deriving a sense of enjoyment from his offending behaviour and has no remorse beyond regret for the impact it has had on his own life. Dr Pyszora noted:[107]
He has never displayed any empathy for the victims of his serious offences or his other crimes when interviewed by psychiatrists, psychologists, or corrections officers, but has often made expressions of remorse and acceptance of responsibility for his offending when being sentenced at court. This is in contrast to his repeated attempts to blame his offending on the actions of others e.g. a GP providing an overdose script of alprazolam in 2017, and likewise a high dose script of alprazolam prior to the 2010 series of armed robberies. He blames others for the failure to successfully use various defences at court, including Legal Aid's alleged refusal to obtain a toxicology report for the 2017 offences, and incompetence of lawyers, rather than accepting responsibility for his own behaviour.
[107] Exhibit A, 1075 (Pyszora Report [292]).

Similarly, Mr Tomasovich's account of his offences to Dr Yewers involved extreme minimisation, victim blaming and revelling in his offending behaviour.[108]
[108] Exhibit A, 995 - 999 (Yewers Report [60] - [81]).
Dr Pyszora states that Mr Tomasovich is proud of his identity as an armed robber.[109] He also believes that police admire him for it and want to be associated with him as a result. Dr Pyszora notes that he often referred to the fact that he and his girlfriend had allegedly been referred to in the media as the 'Bonnie and Clyde of Bunbury'.[110]

Risk of committing a serious offence - s 7(3)(h)

[109] Exhibit A, 1085 (Pyszora Report [343]).

[110] Exhibit A, 1070 (Pyszora Report [265]).

Mr Tomasovich has limited insight into the underpinnings and circumstances of his violent behaviour as evidenced by his attribution of responsibility to other parties, often his victims, for provoking him through mistreatment, abuse or disrespect.
The psychiatric and psychological evidence set out above supports the finding that Mr Tomasovich is at a high risk of committing a serious offence if not subject to a restriction order. That assessment takes into account Mr Tomasovich's history of violent offending and substance abuse, his diagnosis of antisocial personality disorder and his outstanding treatment needs.

Need to protect members of the community from that risk - s 7(3)(i)

There is a risk that Mr Tomasovich may reoffend against commercial premises or vulnerable members of the community. That offending may involve the use of a weapon to threaten, intimidate or inflict injury. The victims of his offending are likely to suffer significant psychological or physical harm, especially if a weapon is present.

Any other relevant matter - s 7(3)(j)

Alcohol

Mr Tomasovich first used alcohol at 13 or 14 years of age. He has admitted that alcohol use was associated with some of his previous offending[111] and stated to Dr Pyszora that alcohol is his substance of choice.[112]

Substances

[111] Exhibit A, 997 (Yewers Report [72]), 999 (Yewers Report [78]).

[112] Exhibit A, 1029 (Pyszora Report [64]).

Mr Tomasovich started smoking cannabis at 14 years of age and progressed to heroin and amphetamines by the age of 16. Although he has generally not used illegal drugs in prison, he has repeatedly sought prescription for benzodiazepines as well as other sedating or anxiolytic medications.[113]
[113] Exhibit A, 1029 (Pyszora Report [62]).
Mr Tomasovich admitted to abusing his own prescription benzodiazepines. He was on a high dose of benzodiazepines prior to his serious offending in 2010 and 2017, and largely blamed his offending on the effects of these medications. Since his release from prison on the interim supervision order, he has obtained prescriptions for high dose benzodiazepines from a number of general practitioners, including one practitioner who Mr Tomasovich continues to blame for his serious offending in 2017 for allegedly prescribing him a large dose of benzodiazepine.[114] Mr Tomasovich considers that his low levels of anxiety resulting from the overuse of benzodiazepines caused him to engage in armed robbery as it took away his fear of arrest and jail.[115]
[114] Exhibit A, 1029 (Pyszora Report [63]), 1047 (Pyszora Report [153]), 1072 (Pyszora Report [277] - [278), 1097 ‑ 1098 (Nichols Report 8 - 9).
[115] Exhibit A, 1070 (Pyszora Report [268]).
Dr Pyszora considers that Mr Tomasovich will require treatment for his benzodiazepine dependence partly because of its association with Mr Tomasovich's offending.[116]

Mental health

[116] Exhibit A, 1086 (Pyszora Report [353]).

Mr Tomasovich has a longstanding and complex psychiatric history. There has been differing opinions between psychiatrists on whether Mr Tomasovich has an enduring mental illness.
Mr Tomasovich suffers from persecutory beliefs and is prone to making attributions of hostile intent to others, including in situations that are neutral or ambiguous.[117]
[117] Exhibit A, 1005 - 1006 (Bannister Report [113]).
Psychiatric assessments confirm that Mr Tomasovich suffers from an enduring psychotic illness, whether that be schizophrenia or delusional disorder. There is consistent agreement that he has a severe personality disorder with enduring personality traits of paranoia, anger, impulsivity, intolerance to frustration and an external locus of control.
Mr Tomasovich has been assessed on multiple occasions as feigning psychopathology for the purposes of reducing culpability for offending, evading legal sanctions, enabling transfer to hospital or justifying his aggression.[118] Dr Pyszora notes that such conduct is not necessarily inconsistent with a genuine mental illness being present.[119]
[118] Exhibit A, 1033 - 1034 (Pyszora Report [85] - [91]), 1075 (Pyszora Report [293]).
[119] Exhibit A, 1075 - 1076 (Pyszora Report [294]).
Records indicate that when Mr Tomasovich has been on antipsychotic medication his behaviour has been less volatile. However, he has consistently refused a treatment dose of antipsychotic medication when not detained in hospital under the Mental Health Act.[120]
[120] Exhibit A, 1011 (Yewers Report [140]), 1076 (Pyszora Report [294]).
Nevertheless, Mr Tomasovich recently agreed to double his dose of antipsychotic medication.[121]
[121] ts 74 (12/5/2022).
Mr Tomasovich is preoccupied with his perceived persecution to the degree that Dr Pyszora considers that he meets criteria for a pathological fixation. This is defined as preoccupation with a particular person or cause that is accompanied by deterioration in social and occupational functioning. Fixation is a common proximal warning behaviour in targeted attacks.[122]
[122] Exhibit A, 1076 (Pyszora Report [295]).
Mr Tomasovich has contacted various public office holders in person and in writing regarding his alleged mistreatment in custody. He has written to the Western Australian Police Force executive, the Ombudsman and the Corruption and Crime Commission, and approached ministers such as the Attorney General to pursue his allegations.[123]

Prison behaviour

[123] Exhibit A, 1074 (Pyszora Report [286]); exhibit G, 1217 (Hazzard Report, 3).

Mr Tomasovich proved to be a management risk in prison and was accordingly housed in the SHU between January 2018 and his release in January 2022.[124]
[124] Exhibit A, 1094 (First Nichols Report, 5).
Between 12 September 2017 and 6 June 2020, Mr Tomasovich incurred 14 formal charges. The charges involved threatening and assaulting prison officers, damaging property and making false or frivolous complaints.[125] In addition to these charges, Mr Tomasovich was involved in more than 30 incidents pertaining to behavioural misconduct, actual and threatened self-harm, aggressive behaviour, substance test refusal, and possession of contraband.[126]

Employment

[125] Exhibit A, 1094 ‑ 1095 (First Nichols Report, 5 - 6).

[126] Exhibit A, 1095 (First Nichols Report, 6).

Mr Tomasovich has a limited employment history, comprising a few short-term jobs in various trades. While he has historically demonstrated an unwillingness to work for a living, he has indicated some interest in obtaining future employment.[127]
[127] Exhibit A, 1009 (Bannister Report [133]), 1071 (Pyszora Report [274]).
Dr Pyszora expressly referred to a lack of employment as having been a contributor to Mr Tomasovich's offending.[128]

Conclusion as to whether Mr Tomasovich is a high risk serious offender

[128] Exhibit A, 1075 (Pyszora Report [291]).

Having considered the evidence in respect of the factors in s 7(3) of the HRSO Act, that evidence being acceptable and cogent, I am satisfied to a high degree of probability that Mr Tomasovich presents an unacceptable risk of committing a serious offence. Mr Tomasovich has been assessed by Dr Pyszora and Dr Yewers as presenting a high risk of serious offending and that offending would cause significant harm to his victims. That risk is unacceptable to the extent that it is necessary to make a restriction order in relation to Mr Tomasovich to ensure adequate protection of the community.
I therefore find that Mr Tomasovich is a high risk serious offender within the meaning of the HRSO Act.

Continuing detention order or supervision order?

Having concluded that Mr Tomasovich is a high risk serious offender, I must make a restriction order. The question is whether the court should make a continuing detention order or a supervision order.
The court should choose the order that is least invasive or destructive of Mr Tomasovich's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community.
In resolving whether the restriction order should be a continuing detention order or a supervision order, the paramount consideration is the need to ensure adequate protection of the community.[129]
[129] HRSO Act s 48(2).
The court cannot make a supervision order unless it is satisfied, on the balance of probabilities, that Mr Tomasovich will substantially comply with the standard conditions of the order.[130] The onus of proving substantial compliance is on Mr Tomasovich.[131]

Compliance with supervision

[130] HRSO Act s 29(1).

[131] HRSO Act s 29(2).

Prior to the imposition of the interim supervision order in 2021, Mr Tomasovich had been subject to six periods of community supervision from 2000. There have been four breaches of parole orders or intensive supervision orders between 2000 and 2009.[132]
[132] Exhibit A, 1003 (Bannister Report [97] - [102]), 1096 (First Nichols Report, 7).
Mr Tomasovich has demonstrated a somewhat intolerant but unsurprising attitude to the interim supervision order. He has consistently expressed frustration about certain conditions and aspects of the order. For example, he has complained that the conditions concerning curfew and licenced premises prevent him from attending family celebrations.[133]
[133] Exhibit A, 1072 -1073 (Pyszora Report [276], [280]).
However, Mr Tomasovich has been compliant with reporting obligations and has attended supervision sessions on a weekly basis since his release. He has reportedly presented in a polite manner in these sessions with no hostility or aggression observed. He has, on occasions, displayed defiance when non-compliance is addressed and conditions re-reinforced.[134]
[134] Exhibit A, 1097 (Nichols Report, 8).
There have been several incidents of non-compliance with the interim supervision order which have resulted in verbal and written warnings but have not been the subject of formal charges.[135] These incidents mostly involved interfering with his GPS monitoring equipment and failures to comply with written lawful instructions.[136] Dr Yewers and Ms Nichols accepted these incidents were technical breaches.[137]
[135] Exhibit A, 1098 - 1099 (First Nichols Report, 9 - 10); exhibit G, 1223 (Hazzard Report, 9).
[136] Exhibit A, 1098 - 1099 (First Nichols Report, 9 - 10).
[137] ts 64 - 65, 75, 77 (12/5/2022).
More recently however, Mr Tomasovich has been convicted of seven offences relating to contraventions of his supervision order. The offences concern three separate incidents.
The first incident occurred in July 2022 when Mr Tomasovich was arrested for entering an area outside the metropolitan area in defiance of a written lawful instruction. A small quantity of methylamphetamine was later found concealed within the back of Mr Tomasovich's mobile phone. He pled guilty to two counts of contravening a requirement of a supervision order and one count of possession of a prohibited drug, and received a fine.[138]
[138] Prosecution notice lodged 16 July 2022, charge numbers PE 28830 - 28831/2022.
The second incident occurred in August 2022. Mr Tomasovich was charged with contravening a requirement of a supervision order, removing or interfering with an electronic monitoring device and criminal damage for swimming at a public pool while wearing his GPS transmitter. Mr Tomasovich pled guilty to the first two charges and received a fine.[139] The criminal damage charge was remanded to January 2023.
[139] Prosecution notice lodged 31 August 2022, charge numbers PE 36724 - 36726/2022.
The third incident occurred in September 2022 when Mr Tomasovich recorded a positive urinalysis sample for methylamphetamine. Mr Tomasovich pled guilty to contravening a requirement of a supervision order and possession of a prohibited drug and received a fine.[140]
Outstanding treatment needs
[140] Prosecution notice lodged 3 October 2022, charge numbers PE 42999 - 43000/2022.
The State submits that Mr Tomasovich's risk of offending would only be capable of being managed in the community if there was a commitment from Mr Tomasovich to, amongst other things, engage willingly in psychological therapy.
Dr Pyszora and Dr Yewers are of the view that Mr Tomasovich requires individual psychological therapy to address his significant criminogenic needs, as well as other rehabilitation and risk reduction strategies including employment and engagement in prosocial supports.[141]
[141] Exhibit A, 1016 (Yewers Report [160], [162]), 1086 (Pyszora Report [352] - [354]).
Mr Tomasovich continues to demonstrate a cavalier attitude to his offending. He is proud of his identity as an armed robber. That much is confirmed by the fact that he has a photo on his phone of him standing outside one of the banks he robbed.
Further, Mr Tomasovich has amassed multiple prescriptions for high dose benzodiazepines. His addiction to benzodiazepines has been associated with his prior serious offending, which Mr Tomasovich appears to appreciate.

Support and accommodation

Mr Tomasovich's father has offered him accommodation at his house.[142]
[142] See Exhibit H.
The police are opposed to it because of firearms held on nearby properties. The Firearms Act 1973 (WA) and FirearmsRegulations 1974 (WA) require firearms to be secured. There is no evidence that the firearm at the properties are not secured in accordance with the Firearms Act and FirearmsRegulations.
It is clear that Mr Tomasovich's stay at a hotel has had a potentially negative impact on his mental health. Living with his father would provide a stable accommodation, which is important to Mr Tomasovich's mental health. It should also ease any financial pressures.
Further, Mr Tomasovich's father is endeavouring to assist him to obtain employment with the father's employer. Mr Tomasovich has obtained a 'white card' so as to be able to work for his father's employer.[143]

Continuing detention order should be made

[143] See Exhibit H.

The State submitted that the risk presented by Mr Tomasovich on a supervision order would not be reduced to a reasonably acceptable level, taking into account the nature and degree of the risk and the proficiency for supervision order conditions to manage and reduce Mr Tomasovich's risk. The State accordingly submitted that adequate protection of the community can only be ensured by a continuing detention order.
I am concerned about Mr Tomasovich's compliance with a supervision order having regard to the breaches of his interim supervision order. Although the State's witnesses accepted that some of these breaches were technical, the number of breaches is such that I am not satisfied that Mr Tomasovich would substantially comply with the standard conditions of a supervision order.
I recognise there are a number of factors in Mr Tomasovich's favour, namely that:
(a)a return to custody would impact negatively on his mental health;
(b)his father has offered him accommodation and support which should assist in his mental health and ease his financial burden;
(c)his mother continues to offer him support which again should assist in his mental health;
(d)Dr Pyszora is confident that with proper conditions and supervision Mr Tomasovich would not present an unacceptable risk to the community;
(e)his breaches of the interim supervision order have been mostly technical; and
(f)it is four years since Mr Tomasovich committed an assault.
Notwithstanding these factors, I am simply not satisfied that Mr Tomasovich would substantially comply with the standard conditions of a supervision order pursuant to s 29 of the HRSO Act.
Accordingly, I make an order that Mr Tomasovich be detained in custody for an indefinite term for control, care and treatment.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SB
Associate to the Honourable Justice Curthoys
24 NOVEMBER 2022