The State of Western Australia v Tomasovich [No 3] - [2024] WASC 156

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- TOMASOVICH [No 3] [2024] WASC 156
CORAM:   MUSIKANTH J
HEARD:   19 APRIL 2024 & 3 MAY 2024
DELIVERED          :   3 MAY 2024
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 - Whether respondent is a high risk serious offender - Whether continuing detention order should be affirmed or supervision order made - Supervision order made

Criminal law - High Risk Serious Offenders Act s 8(b) - Statutory scheme - Objects - Continuing control, care or treatment - Delay in referral for recommended treatment - Turns on own facts

Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

Continuing detention order rescinded and supervision order made

Category: B

Representation:

Counsel:

Applicant	:	Ms T Hollaway
Respondent	:	Mr D J McKenzie

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	David McKenzie Legal Pty Ltd

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

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
Italiano v The State of Western Australia [2009] WASCA 116
The State of Western Australia v AB [No 3] [2022] WASC 126
The State of Western Australia v ACJ [2021] WASC 219
The State of Western Australia v Dragon [No 2] [2022] WASC 189
The State of Western Australia v Garlett [2021] WASC 387
The State of Western Australia v Hoskin [No 2] [2024] WASC 104
The State of Western Australia v JKX [No 3] [2023] WASC 23
The State of Western Australia v MAM [2022] WASC 100
The State of Western Australia v MBW [No 8] [2023] WASC 80
The State of Western Australia v Mills [No 2] [2023] WASC 126
The State of Western Australia v Sandon [No 3] [2023] WASC 148
The State of Western Australia v Tomasovich [2021] WASC 422
The State of Western Australia v Tomasovich [No 2] [2022] WASC 402
The State of Western Australia v White [2023] WASC 432

MUSIKANTH J:

Introduction

By application dated 29 September 2023, the State seeks an order that the continuing detention order made by the Honourable Justice Curthoys on 24 November 2022 against the respondent, Kamm Luke Levi Tomasovich, be reviewed pursuant to s 64 of the High Risk Serious Offenders Act 2020 (WA) (HRSOAct).
The application for review of the continuing detention order was heard before me on 19 April 2024 and 3 May 2024.
The State submits that Mr Tomasovich remains a high risk serious offender, and that his continuing detention order be replaced with a supervision order.
Mr Tomasovich, through his counsel, accepts that he remains a high risk serious offender.[1]
[1] ts 177.
It remains a matter for the Court to determine whether Mr Tomasovich is high risk serious offender.[2]
[2] HRSO Act s 7, s 68.

Procedural history

Mr Tomasovich is currently the subject of a continuing detention order dated 24 November 2022. At the time of the hearing before me, Mr Tomasovich was a 42-year-old man.
Mr Tomasovich's most recent serious offence for the purposes of the HRSO Act (serious offence) was armed robbery committed on 8 September 2017.[3] The incident involved Mr Tomasovich approaching the counter of a bank, stating he had a firearm and asking the victim to put notes in a bag. The victim gave Mr Tomasovich a bag containing $3,135. Mr Tomasovich was not armed at the time but was pretending to be armed with a firearm.
[3] HRSO Act s 5; sch 1 subdiv 3 item 34.
Mr Tomasovich was sentenced to imprisonment for 4 years and 2 months, to be served concurrently commencing 12 September 2017. That sentence ended on 12 November 2021.
Mr Tomasovich committed several assaults on officers while in custody.
On 22 October 2021, the State applied for a restriction order to be made in respect of Mr Tomasovich under the HRSO Act.
On 26 November 2021, Mr Tomasovich was made subject to an interim supervision order while awaiting the determination of that application.[4]
[4] The State of Western Australia v Tomasovich [2021] WASC 422.
After being released into the community, Mr Tomasovich committed various breaches of that order, several relating to possession and use of methylamphetamine. He attracted sentences for those breaches ranging from fines to community-based orders.
On 24 November 2022, Mr Tomasovich was convicted of two breaches of requirements of his interim supervision order, with respect to conduct occurring on 9 and 15 November 2022, by using a prohibited drug (namely, methamphetamine) and by possessing alcohol. For those breaches, he was sentenced to three months imprisonment, to be served concurrently commencing 24 November 2022.
Mr Tomasovich currently remains in detention. This is because on 24 November 2022, Curthoys J declared Mr Tomasovich to be a high risk serious offender and made an order that he 'be detained in custody for an indefinite term for control, care and treatment'[5] (continuing detention order).
[5] The State of Western Australia v Tomasovich [No 2] [2022] WASC 402 [175].
The continuing detention order, which was made after hearings on 12 May 2022 and 20 July 2022, is now up for review.
The State applies for a restriction order on the grounds that such an order is necessary to ensure adequate protection of the community against an unacceptable risk that Mr Tomasovich will commit a serious offence.[6]
[6] HRSO Act s 7(1).
A restriction order under the HRSO Act can take the form of a continuing detention order, or a supervision order.
A court cannot make a supervision order in relation to the offender unless Mr Tomasovich discharges his burden pursuant to s 29(1) of the HRSO Act, that he would substantially comply with the standard conditions of the order as made.
Although noting Mr Tomasovich 'may experience some difficulty in discharging his burden', the State did not contest the proposition that the risk identified may be able to be managed within the community on a supervision order.[7]
[7] State's submissions dated 15 April 2024, [3].
At the hearing, the State explained that the State did not oppose the making of a supervision order if the Court were satisfied that Mr Tomasovich would substantially comply with the standard conditions.[8]
[8] ts 247.

Evidence

The State led evidence from three witnesses at the hearing:
(a)Professor Natalie Pyszora (a consultant forensic psychiatrist);
(b)Ms Chantelle Place (acting manager forensic psychological assessment team, Corrective Services, Department of Justice) (Department); and
(c)Ms Julie Dabala (a senior community corrections officer with the Department).
The State also tendered a two-volume Book of Materials (exhibit 1), which included:
(a)Mr Tomasovich's criminal record;
(b)a chronology of offending prepared by the State Solicitor's Office;
(c)various records of the Department of Justice in relation to Mr Tomasovich's time in prison (including charge history, incident history, placement history, history of board secretariat decision slips, substance use tests, management plans, and medical progress notes);
(d)reports prepared for the HRSO proceedings before Curthoys J in 2022, including reports of:
(i)Dr Natalie Pyszora (as Professor Pyszora then was) dated 31 March 2022 and addendum dated 17 July 2022 (together, 2022 Pyszora Report);
(ii)Dr Tara Yewers (a counselling psychologist) dated 8 May 2022;
(iii)Ms Jodii Nichols (a senior community corrections officer with the Department) dated 12 April 2022 and update dated 10 May 2022;
(iv)Dr Ben Bannister (a forensic psychologist with the Department) dated 12 April 2022;
(v)Ms Shae Hazzard (a senior community corrections officer with the Department) dated 19 July 2022;
(e)a psychiatric report of Professor Pyszora dated 28 February 2024 (2024 Pyszora Report);
(f)a community supervision assessment authored by Ms Dabala dated 27 March 2024 (CSA Report); and
(g)a letter from Ms Place dated 19 February 2024, in lieu of a treatment progress report.
The State also tendered an update letter from Ms Place dated 12 April 2024 (exhibit 2), and the four-volume Book of Materials that was before Curthoys J in 2022 (exhibit 3).

Legal Principles

The court must hear the application and review the continuing detention order under s 64 and s 66 of the HRSO Act.
In reviewing the order, the court must determine whether the offender remains a high risk serious offender.[9]
[9] HRSO Act s 66.
The offender is a high risk serious offender for the purposes of the HRSO Act if the court is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.[10]
[10] HRSO Act s 7(1).
This requires the court, first, to be satisfied that a risk that an offender will commit a serious offence is unacceptable and, secondly, that it is necessary to make a restriction order to ensure adequate community protection against a risk that the offender will commit a serious offence.[11]
[11] The State of Western Australia v Sandon [No 3] [2023] WASC 148 [18]; The State of Western Australia v Dragon [No 2] [2022] WASC 189 [245]; The State of Western Australia v Garlett [2021] WASC 387 [136(d)].
An unacceptable risk is one that is not trivial or transient.[12]
[12] The State of Western Australia v Garlett [2021] WASC 387 [136(b)], [138]; The State of Western Australia v Sandon [No 3] [2023] WASC 148 [20]; The State of Western Australia v Dragon [No 2] [2022] WASC 189 [20].
In determining whether it is necessary to make a restriction order to adequately protect the community, the court makes two evaluative assessments; one of 'necessity' and the other of 'adequacy'.[13]
[13] The State of Western Australia v Garlett [2021] WASC 387 [136(a)], [138]; The State of Western Australia v Dragon [No 2] [2022] WASC 189 [19].
In Italiano,[14] in the context of the Dangerous Sexual Offenders Act 2006 (now the HRSO Act), Buss JA (as his Honour then was) observed that a finding that there is an 'unacceptable risk' is an evaluative and predictive finding of fact involving a balancing exercise in which the court was required, on the one hand, to have regard to, among other things, the nature of the risk (the commission of a [serious] offence with serious consequences for the victim) and the likelihood of the risk materialising and, on the other hand, the serious consequences for the offender (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order) if an order was made.[15]
[14] Italiano v The State of Western Australia [2009] WASCA 116.
[15] Italiano v The State of Western Australia [2009] WASCA 116 [46].
As Corboy J explained in Garlett,[16] the factors identified by Wheeler JA in Director of Public Prosecutions (WA) v Williams[17] and Buss JA in Italiano,[18] and the balancing exercises to which their Honours referred, would be most relevant to the determination of whether it is necessary to make a restriction order to adequately protect the community.[19]
[16] The State of Western Australia v Garlett [2021] WASC 387.
[17] Director of Public Prosecutions (WA) v Williams[2007] WASCA 206; (2007) 35 WAR 297 [68].
[18] Italiano v The State of Western Australia [2009] WASCA 116 [46].
[19] The State of Western Australia v Garlett [2021] WASC 387 [136(c)].
The approach is:
(a)finding whether the risk is unacceptable by reference to whether it was trivial or transient (which is treated as an exhaustive definition of 'unacceptable risk'); and only then
(b)undertaking the balancing exercise with reference to whether it is necessary to make an order to adequately protect the community.[20]
[20] The State of Western Australia v Garlett [2021] WASC 387 [136] - [139]; The State of Western Australia v Sandon [No 3] [2023] WASC 138 [18] - [22]; The State of Western Australia v JKX [No 3] [2023] WASC 23 [71] - [75]; The State of Western Australia v MBW [No 8] [2023] WASC 80 [18] - [23]; The State of Western Australia v Hoskin [No 2] [2024] WASC 104 [19] - [25]; The State of Western Australia v Dragon [No 2] [2022] WASC 189 [20] - [21]; The State of Western Australia v AB [No 3] [2022] WASC 126 [27] - [34]; The State of Western Australia v White[2023] WASC 432 [36] - [42]; The State of Western Australia v MAM [2022] WASC 100 [18] - [20].
The State bears the onus of satisfying the court that the offender is a high risk serious offender, by acceptable and cogent evidence and to a high degree of probability.[21] The words 'high degree of probability' are incapable of further definition.[22] They import more than a finding on the balance of probabilities but less than a finding of proof beyond reasonable doubt.[23]
[21] HRSO Act s 7(2).
[22] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [28] (Steytler P and Buss JA).
[23] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [28] (Steytler P and Buss JA).
If the court finds the offender remains a high risk serious offender, the court must either affirm the continuing detention order, or replace it with a supervision order (subject to s 29).[24]
[24] HRSO Act s 68 (1)(b).
If the court finds the offender does not remain a high risk serious offender, it must rescind the continuing detention order.[25]
[25] HRSO Act s 29, 30, 68(1)(b).
Where the court finds the offender remains a high risk serious offender, the court's discretion to either affirm the continuing detention order or replace it with a supervision order must be guided by the paramount consideration of ensuring adequate protection of the community.[26]
[26] HRSO Act s 68 (2).
Supervision orders granted under the HRSO Act are provided for in pt 4 div 1.
A supervision order must contain the standard conditions set out in s 30 of the HRSO Act, as well as any other conditions the court thinks appropriate for the purposes of rehabilitation, or protection of the community or victims.[27]
[27] HRSO Act s 30(5).
A court cannot make, affirm, or amend a supervision order unless it is satisfied that the offender will 'substantially comply' with the standard conditions of the order.[28]
[28] HRSO Act s 29(1).
The standard conditions are that the offender:
(a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender's current name and address;
(b)report to, and receive visits from, a community corrections officer as directed by the court;
(c)notify a community corrections officer of every change of the offender's name, place of residence or place of employment at least two days before the change happens;
(d)be under the supervision of a community corrections officer and comply with any reasonable direction of the officer (including a direction for the purposes of s 31 or s 32 of the Act);
(e)not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer;
(f)not commit a serious offence during the period of the order; and
(g)be subject to electronic monitoring under s 31 of the Act.[29]
[29] HRSO Act s 30(2) read with the definition of 'standard condition' in s 3.
The onus of proof is on the offender to show that they will 'substantially comply' with these conditions.[30]
[30] HRSO Act s 29(2) read with s 29(1).
In considering whether an offender is a high risk serious offender, the court may have regard to any relevant matter,[31] but must consider the matters set out at s 7(3)(a)-(j).[32] These matters are considered below.
[31] HRSO Act s 7(3)(j).
[32] HRSO Act.

Antecedents - s 7(3)(g)

Mr Tomasovich's antecedents, as at 24 November 2022, were summarised by Curthoys J in The State of Western Australia v Tomasovich [No 2], as follows:[33]
(a)Mr Tomasovich had given inconsistent accounts of his relevant personal history over time but his mother's accounts as recorded in various reports had been consistent;
(b)Mr Tomasovich was (then) a 40-year-old man having been born on 27 January 1982. He was 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;
(c)Mr Tomasovich's behaviour began to deteriorate following his parents' separation. His mother reported 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, [Dr] Yewers, that he attended school to Year 9 but eventually completed Years 10 and 11 in prison as an adult; and
(d)Mr Tomasovich had relatively close relationships with his parents and siblings. Between 11 January 2022 and 12 May 2022, he was residing with his mother.
[33] The State of Western Australia v Tomasovich [No 2] [47] - [50].
Relevantly, Curthoys J also noted as follows:[34]
(a)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 and stated to [Professor] Pyszora that alcohol is his substance of choice;
(b)Mr Tomasovich started smoking cannabis at 14 years of age and progressed to heroin and amphetamines by the age of 16. Although he had generally not used illegal drugs in prison, he repeatedly sought prescription for benzodiazepines as well as other sedating or anxiolytic medications;
(c)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 had obtained prescriptions for high dose benzodiazepines from a number of general practitioners, including one practitioner who Mr Tomasovich continued to blame for his serious offending in 2017 for allegedly prescribing him a large dose of benzodiazepine. Mr Tomasovich considered 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;
(d) [Professor] Pyszora considered that Mr Tomasovich would require treatment for his benzodiazepine dependence partly because of its association with Mr Tomasovich's offending;
(e)Mr Tomasovich had a longstanding and complex psychiatric history. There had been differing opinions between psychiatrists on whether Mr Tomasovich had an enduring mental illness;
(f)Mr Tomasovich suffered from persecutory beliefs and was prone to making attributions of hostile intent to others, including in situations that are neutral or ambiguous; and
(g)Psychiatric assessments confirmed that Mr Tomasovich suffered from an enduring psychotic illness, whether that was schizophrenia or delusional disorder. There was consistent agreement that he had a severe personality disorder with enduring personality traits of paranoia, anger, impulsivity, intolerance to frustration and an external locus of control.
[34] The State of Western Australia v Tomasovich [No 2] [133] - [139].

Criminal record - s 7(3)(g)

Mr Tomasovich has an extensive criminal record.
On 15 May 2003, Mr Tomasovich stole a motor vehicle and drove recklessly.
Sometime between 14 March 2004 and 15 March 2004, Mr Tomasovich again stole a motor vehicle.
On 15 March 2004, Mr Tomasovich committed two counts of burglary with intent to commit an offence, in circumstances of aggravation. He used a stolen car to drive to a Retravision Store, and whilst in company stole three DVD players to the value of $300. He then rammed the entrance of All Bikes causing extensive damage and stole four bike helmets totalling $1,680.

On 15 March 2004, Mr Tomasovich attempted to prevent the course of justice by escaping legal custody, during which he shoved a police officer.
On 15 March 2004, Mr Tomasovich stole a Shogun racing bike from the rear yard of a residential address before attempting to ride away.
On 6 November 2006, Mr Tomasovich committed armed robbery on an 82 year old woman, pretending to be armed. He pulled the victim from her vehicle and threw her on the ground, before getting into her vehicle and driving away.
On 23 July 2008, Mr Tomasovich assaulted his female partner, resulting in bodily harm.
On 24 July 2008, Mr Tomasovich unlawfully wounded his female partner. Mr Tomasovich became aggressive towards his female partner and punched her several times to the head. The victim raised her hands in self-protection. She received a cut to one of her fingers as Mr Tomasovich was holding a knife. He then stabbed the victim once to the head using the knife and later stabbed her to the wrist with a used syringe.
On 10 March 2010, Mr Tomasovich committed armed robbery, during which he entered a bank, told the teller he had a firearm, stole $3,000, and left.
On 3 April 2010, Mr Tomasovich attempted armed robbery, entering a bank and handing the teller a note stating he had a firearm. The teller activated the silent alarm and did not give him money. Mr Tomasovich left.
On 3 April 2010, half an hour later, Mr Tomasovich committed armed robbery at a visitor's centre, telling the female victim to give him money. Mr Tomasovich lifted his shirt to reveal a replica firearm, and then stole money from the victim and two other employees before leaving.
On 6 April 2010, Mr Tomasovich attempted armed robbery by entering a bank armed with a toy firearm. He pointed it at the tellers and demanded money. The tellers informed him that they could not access the larger notes and only had coins. Mr Tomasovich left.
On 6 April 2010, immediately afterwards, Mr Tomasovich entered a store while in possession of the toy firearm and demanded money from two separate female employees. Security were called and Mr Tomasovich left. Also present were a 32-year- old female customer and her four year old daughter.
On 6 April 2010, a few hours later, Mr Tomasovich entered a pharmacy while armed with the toy firearm. He pointed it at a female employee and threatened to shoot her unless she emptied the till. The employee removed all the notes from the till and gave them to Mr Tomasovich.
On 27 October 2014, Mr Tomasovich committed two offences of assaulting a public officer, whereby he punched two court security officers.
On 30 August 2015, Mr Tomasovich assaulted another public officer, elbowing a prison officer to the side of the temple and face. The victim fell to the ground. Mr Tomasovich then engaged in a scuffle with the victim.
On 8 September 2017, Mr Tomasovich committed armed robbery. Dressed in a black hooded jumper and pants, he approached the counter of a bank and stated 'put all the money in a bag. I have a gun'. He had both hands in the pockets at the front of the hooded jumper and told the victim not to press any buttons, referring to the silent alarm. He was not armed but was pretending to be armed with a firearm. He left with $3,135 in cash.
On 7 January 2018, Mr Tomasovich assaulted a public officer. He punched a female prison officer to the face while holding a pen. The victim suffered a laceration to her left nostril and a fractured nose.
On 6 October 2018, Mr Tomasovich assaulted a public officer. He punched a male prison officer to the face.
On 15 July 2022, Mr Tomasovich contravened a requirement of his supervision order by leaving the inclusion zone.
On 15 July 2022, Mr Tomasovich committed the offences of possessing a prohibited drug (namely, methylamphetamine) and, consequentially, contravening a requirement of his supervision order not to possess, consume or use any prohibited drug. Mr Tomasovich possessed three small clip seal bags, one bag containing approximately 0.1 gm of methylamphetamine, one containing traces of methylamphetamine, and one containing unknown crystals.
On 23 September 2022, Mr Tomasovich committed the offences of using a prohibited drug and, consequentially, contravening a requirement of a supervision order, by testing positive for methylamphetamine in a urinalysis.
On 21 August 2021, Mr Tomasovich committed the offences of contravening a requirement of a supervision order, as well as removing or interfering with an electronic monitoring device. Mr Tomasovich went swimming for 20 minutes in a swimming pool despite being provided with a written lawful instruction not to submerge the transmitter in any body of water.
On 20 October 2022, Mr Tomasovich committed trespass by jumping a closed pedestrian gate and crossing the train tracks as a train was approaching.
On 28 October 2022 to 2 November 2022, Mr Tomasovich committed the offences of using a prohibited drug (namely, methylamphetamine) and, consequentially, contravening a requirement of his supervision order not to possess, consume or use any prohibited drug.
On 9 November 2022, Mr Tomasovich committed the offences of using a prohibited drug (namely, methylamphetamine) and, consequentially, contravening a requirement of his supervision order not to possess, consume or use any prohibited drug.
On 15 November 2022, Mr Tomasovich contravened a requirement of his supervision order not to possess or consume or use alcohol without prior approval; the police having on that date attended Mr Tomasovich's home address and located two partially empty bottles of alcohol.

Section 74 report prepared for application, and extent of co-operation by the offender - s 7(3)(a)

Professor Natalie Pyszora

Section 74 of the HRSO Act provides for the preparation of independent reports by qualified experts.
The 2024 Pyszora Report is such a report, and the following relevantly emerges from it.

Offending history

On 21 February 2024, Professor Pyszora conducted an interview with Mr Tomasovich.
Reflecting on Mr Tomasovich's previous assaults on prison officers, Professor Pyszora opined that Mr Tomasovich continued to minimise his actions and did not express remorse.[35]
[35] 2024 Pyszora Report [71].
Reflecting on the assault on the female officer on 7 January 2018, in which Mr Tomasovich was holding a pen, Professor Pyszora noted that he had initially said the incident was due to bad communication and 'not getting on with officers'.[36] However, being challenged on this, he accepted that the assault on the female officer was serious.[37]
[36] 2024 Pyszora Report [71].
[37] 2024 Pyszora Report [71].
Reflecting on the assault on a male officer on 6 October 2018, Mr Tomasovich had effectively stated it was bad communication, and a poor relationship with the officer.[38] Mr Tomasovich said '[the officer] was assaulted, but I was also kicked and punched, I pushed his face back. I know the assaults were bad, but they were minor. I hardly got any time'.[39]
[38] 2024 Pyszora Report [71].
[39] 2024 Pyszora Report [71].
Nonetheless, Professor Pyszora observed that, in contrast to his 2022 interviews, at no point did Mr Tomasovich state or imply that he was proud of his previous offending.[40]
[40] 2024 Pyszora Report [72].
Further, Mr Tomasovich is 'attending education' one day per week,[41] and has stated that he intends to work, potentially in a labouring job, as he needs to keep busy and be financially secure.[42]
[41] 2024 Pyszora Report [74].
[42] 2024 Pyszora Report [78].
Mr Tomasovich states that he would comply with all mental health appointments,[43] and that he has no intention of accessing any firearms.[44] He has reiterated that his previous offences did not involve the use of actual firearms, but rather toy firearms or no weapon at all.[45]
[43] 2024 Pyszora Report [81].
[44] 2024 Pyszora Report [77].
[45] 2024 Pyszora Report [77].
According to Professor Pyszora, Mr Tomasovich seems to have benefited from the alcohol and drug course he completed during his time in custody.[46] He has also demonstrated some insight into the risk factors that using these substances have historically posed for him, making him more likely to commit offences and has stated that any future use 'would be risking freedom'.[47] Mr Tomasovich has also indicated that he now understands that any breach of his Supervision Order by using alcohol or methamphetamine, or by swimming with his electronic monitoring device, will result in imprisonment.[48]

Diagnosis

[46] 2024 Pyszora Report [88].

[47] 2024 Pyszora Report [88].

[48] 2024 Pyszora Report [91].

According to Professor Pyszora, Mr Tomasovich still suffers from antisocial personality disorder, delusional disorder persecutory type, and substance use disorder,[49] anxiety and panic attacks.[50] She also considers that Mr Tomasovich still has a propensity to seek addictive medication.[51]
[49] 2024 Pyszora Report [99].
[50] 2024 Pyszora Report [59] - [60], [63], [65].
[51] 2024 Pyszora Report [63], [65], [99], [121].
That said, Professor Pyszora notes that Mr Tomasovich has not reported delusions or hallucinations over the last year,[52] and has also demonstrated insight into his mental state.[53]
[52] 2024 Pyszora Report [51] - [66].
[53] 2024 Pyszora Report [80].
Professor Pyszora also observes that Mr Tomasovich's mental health has improved since 2022,[54] there has been general compliance and good behaviour in prison,[55] and his mood has been described as 'euthymic' on at least two occasions during the second half of 2023.[56]
[54] 2024 Pyszora Report [154].
[55] 2024 Pyszora Report [36] - [37].
[56] 2024 Pyszora Report [59], [65].
On the second occasion, 21 November 2023, Mr Tomasovich was described as calm and cooperative, with coherent and relevant speech, and appropriate affect. Although he described 'mild situational anxiety', there were 'no persecutory delusions or hallucinations. He was functioning very well with his studies', although he still enquired about getting, among other things, Buspirone for anxiety.[57]

Risk assessment

[57] 2024 Pyszora Report [65].

Professor Pyszora found that Mr Tomasovich's Hare Psychopathy Checklist-Revised (PCL-R) pro-rated score remained 31.6, indicating significant psychopathy.[58]
[58] 2024 Pyszora Report [108].
According to Professor Pyszora the percentile rank for Mr Tomasovich's total pro-rated score was 88.0%; meaning his score was higher than 88.0% of North American Male Offenders. Mr Tomasovich's Factor 1 percentile was 100% and Factor 2 was 67.9%.
Factor 1 assesses interpersonal and affect personality characteristics of psychopathy (e.g. glibness and superficial charm, pathological lying, callousness, lack of remorse or guilt, shallow affect, etc.). Factor 2 assesses social deviance (i.e. behavioural) features and is more akin to the criteria for antisocial personality disorder (e.g. antisocial acts, impulsivity, irresponsibility, poor behavioural controls, early behavioural problems, etc).[59]
[59] 2024 Pyszora Report [110].
Professor Pyszora noted that high PCL-R scorers often pose challenges to service and treatment providers in terms of motivation, engagement, cooperation and interpersonal dynamics. These factors need to be managed and monitored as part of treatment and management services.[60]
[60] 2024 Pyszora Report [111].
According to Professor Pyszora, Mr Tomasovich's Violence Risk Appraisal Guide (Revised) (VRAG-R) category remained 9; the highest of the categories for violent re-offending risk.
For persons within this category, 76% of them will commit a further violent offence within 5 years.[61] However, the VRAG-R does not (and cannot) provide any assistance as to whether Mr Tomasovich will be in that 76%.[62]
[61] 2024 Pyszora Report [113].
[62] 2024 Pyszora Report [113].
As Professor Pyszora explained in her earlier report, the VRAG-R score has a broader range of 'violent offences' than those defined as a 'serious offence' within the meaning of s 5 of the HRSO Act. Relevantly, 'violent offences' include threatening with a weapon, assault with a weapon, assaulting a 'peace officer', and assault causing bodily harm.[63]
[63] 2022 Pyszora Report [309].
She also analysed Mr Tomasovich using the HCR-20 V3 (Historical, Clinical and Risk Management 20, Version 3),[64] being, according to Professor Pyszora, 'the most commonly used and valued set of clinical guidelines for violence risk assessment and management in the community, correctional, and forensic mental health settings throughout the world', and one which 'performs as well as or better than other approaches in terms of predictive validity'.[65]
[64] Douglas, Hart, Webster, Belfrage 2013; 2024 Pyszora Report [115] - [144].
[65] 2024 Pyszora Report [116].
In summary, Professor Pyszora reached the following conclusions in this regard:[66]
[66] 2024 Pyszora Report [115] - [144]
(a)Historical risk factors:
(i)present were a history of problems with previous violence, other antisocial behaviour, relationships, employment, substance use, major mental disorder, personality, violent attitudes, and problems with his response to treatment and supervision; and
(ii)not present was a history of problems with traumatic experiences.
(b)Clinical risk factors:
(i)present were recent problems with insight;[67]
[67] According to Professor Pyszora, Mr Tomasovich's emerging insight into mental illness and adverse effects of substance use appeared superficial, and he did not accept medical advice about appropriate medication: 2024 Pyszora Report [127].
(ii)partially present were recent problems with treatment or supervision response;
(iii)not present or possibly partially present were '[r]ecent [p]roblems with [s]ymptoms of [m]ajor [m]ental [d]isorder';[68] and
(iv)not present were '[v]iolent [i]deation or [i]ntent'[69] or instability.[70]
(c)Risk management factors:
(i)present were future problems with stress or coping;
(ii)present or partially present were future problems with his living situation (depending on suitable accommodation being identified);
(iii)possibly present were future problems with professional services and plans (depending on the conditions of any ongoing order mandating management of his risk factors as wells as the ability of agencies to quickly intervene in the event of warning signs related to escalating risk); and
(iv)not present were problems with personal support.
[68] Professor Pyszora noted that Mr Tomasovich appeared to be mentally stable since his return to prison in November 2022 (despite refusing to continue with his depot antipsychotic medication), and that he had been compliant with his prescribed antipsychotic medication which, in combination with low levels of daily stressors, appeared to have been enough to maintain his mental stability. However, it was possible that Mr Tomasovich continued to have chronic psychotic symptoms which he was able to conceal, and that he had previously managed to appear well on psychiatric reviews while acting on delusional beliefs in his home environment: 2024 Pyszora Report [131].
[69] Mr Tomasovich denied any thoughts of perpetrating violence including armed robberies, denied he was proud of his previous offending, and there were no reports of violent intentions or aggressive behaviour 'in the past 15 months in custody': 2024 Pyszora Report [130].
[70] Mr Tomasovich's behavioural and interpersonal interactions in custody had been reported as positive 'in the past 15 months': 2024 Pyszora Report [132].
Professor Pyszora opines that Mr Tomasovich is most likely to commit a 'serious offence' in the context of an armed robbery or attempted robbery.[71] This would involve threatening victims with the presence of a firearm, while being armed with either a replica or toy firearm or simply stating that he has a firearm.[72]
[71] 2024 Pyszora Report [146].
[72] 2024 Pyszora Report [146].
Whilst I note that Mr Tomasovich has never used an actual firearm in committing any of the armed robberies of which he has previously been convicted, Professor Pyszora expressed the view that psychological harm to victims of such an offence 'would be significant', and that '[in] the event of an opportunistic armed robbery against a vulnerable victim physical harm could also be caused'.[73]
[73] 2024 Pyszora Report [148].
Having said that, Professor Pyszora considers that 'more likely than a further armed robbery offence' is the prospect of Mr Tomasovich engaging in offending involving 'grievance fuelled retribution', for which he presents a 'chronic' risk, whether the grievance is delusional, or reality based.[74]
[74] 2024 Pyszora Report [152].
Professor Pyszora notes that use of weapons in any attack may result in a serious offence and refers back to Mr Tomasovich's 2018 attack on the female prison officer involving use of a pen. [75] However, she expresses no opinion as to the likelihood that Mr Tomasovich will in fact use a weapon in committing any such an offence.

Overall opinion

[75] 2024 Pyszora Report [152].

Professor Pyszora concludes that Mr Tomasovich presents 'no imminent risk of serious offending if on a [s]upervision [o]rder with appropriate conditions to manage risk'.[76]
[76] 2024 Pyszora Report [151].
However, in her view, Mr Tomasovich does present a high risk of committing a further serious offence if he is not subject to a restriction order.[77]
[77] 2024 Pyszora Report [153].
According to Professor Pyszora, Mr Tomasovich's risk is manageable on a supervision order provided he has suitable accommodation, and appropriate conditions are imposed.[78]

Recommendations

[78] 2024 Pyszora Report [154].

Professor Pyszora recommends that any imposed supervision order last for a minimum of five years to ensure Mr Tomasovich can develop the required internal control strategies, and to allow for stabilisation of his mental health in the community.[79]
[79] 2024 Pyszora Report [165].
She also recommends several monitoring, treatment, and supervision strategies.[80]
[80] 2024 Pyszora Report [155], [157], [162].
Among the proposed monitoring strategies, Professor Pyszora recommends regular review by a senior community corrections officer (SCCO), regular and random drug and alcohol testing, SCCO contact with key family members and supports to obtain collateral information, home visits by agencies involved in his management,[81] monitoring of Mr Tomasovich's fixated grievances and electronic monitoring.[82]
[81] 2024 Pyszora Report [155].
[82] 2024 Pyszora Report [156].
Among treatment strategies, Professor Pyszora recommends that Mr Tomasovich engage in individual psychological therapy to address his criminogenic needs surrounding antisocial personality structure and cognitions as well as substance misuse and consequential thinking.[83] She notes that Mr Tomasovich's progress in psychological therapy is likely to be slow due to a high Factor 1 psychopathy score.[84]
[83] 2024 Pyszora Report [157].
[84] 2024 Pyszora Report [158].
Professor Pyszora considers that Mr Tomasovich will require monitoring and treatment by the Community Forensic Mental Health Service, and recommends that a condition of compliance with mental health treatment be imposed.[85]
[85] 2024 Pyszora Report [159].
She also considers that Mr Tomasovich would need to remain abstinent from benzodiazepines,[86] and that further conditions to manage this should include urinalysis for unprescribed medications, as well as a condition that Mr Tomasovich report any new prescription to the Community Offender Monitoring Unit (COMU) before starting a new medication.[87]
[86] 2024 Pyszora Report [160].
[87] 2024 Pyszora Report [160].
Regarding supervision strategies, Professor Pyszora recommends there should be appropriate restrictions on community freedom,[88] including electronic monitoring, a direction that Mr Tomasovich not associate with persons using alcohol or illegal drugs, and a restriction on unauthorised attendance at licenced premises.[89]
[88] 2024 Pyszora Report [162].
[89] 2024 Pyszora Report [162].

She also considers that a condition of exchange of information between agencies involved in managing his risk will be vital, given Mr Tomasovich's lifelong tendency to provide different accounts to different people, or to the same people at different times.[90] According to Professor Pyszora, this would be important in managing risk and the potential for Mr Tomasovich to persuade his general practitioner that he requires a script for benzodiazepines.[91]
[90] 2024 Pyszora Report [161].
[91] 2024 Pyszora Report [161].
In her report, Professor Pyszora also touches briefly on the topic of 'victim safety planning', noting that any such planning will depend on 'general management' of the risk of serious offending given the victims of Mr Tomasovich's serious offences (in the community) have been employees of banks and shops, as well as an elderly stranger.[92]
[92] 2024 Pyszora Report [164].
According to Professor Pyszora, victim safety planning relating to 'grievance thinking' would depend on early detection of emerging paranoia and grievances against those tasked with managing Mr Tomasovich in the community.[93]

Extent to which the respondent cooperated

[93] 2024 Pyszora Report [164].

As noted, Professor Pyszora interviewed Mr Tomasovich on 21 February 2024.
The interview lasted for 2.75 hours.[94]
[94] 2024 Pyszora Report [5].
Nothing in Professor Pyszora's report suggests to me that Mr Tomasovich failed to co-operate in her examination of him.[95]
[95] See generally 2024 Pyszora Report [67] - [98].

Other medical, psychiatric, or psychological or other assessments ‑ s 7(3)(b)

I have also had regard to all other reports and assessments forming part of the exhibits before me, including those referred to in paragraph 22(d) above prepared for the 2022 HRSO hearing (exhibit 3).[96]
[96] A description of what is contained in these volumes may be found in The State of Western Australia v Tomasovich [No 2] [2022] WASC 402 [40] - [41], [43].
A summary of the salient features of, and conclusions expressed in those reports and assessments are set out in The State of Western Australia v Tomasovich [No 2] [2022] WASC 402 [70] - [110].

Community Supervision Assessment

The CSA Report was authored by Ms Dabala, and was co‑endorsed by Ms Dabala, Aimee Goode and Tara Jones of the COMU.
Among other things, the report describes Mr Tomasovich's previous response to community supervision, his progress since the imposition of the continuing detention order, the proposed community supervision plan, Mr Tomasovich's behaviours to be managed, and proposed management strategies.
The report also notes that Mr Tomasovich completed all six sessions of the voluntary Alcohol and Drugs Group (PAST) program at Casuarina Prison in June 2023, was said to have participated in all therapeutic activities and was a 'keen attentive group member'.[97]
[97] CSA Report, page 402.
The report notes, however, that Mr Tomasovich 'does not believe he has a benzodiazepine addiction despite his repeated requests for this drug in custody, achieving success at Christmas 2023 and despite his participation in the PAST program'.[98]
[98] CSA Report, page 409.
According to the report, Mr Tomasovich proposes to live in a caravan at a rural property [redacted]. His father lives [redacted] at the same property. The report goes on to note that Mr Tomasovich would not be permitted inside the house on the property but could use laundry and bathroom facilities which are separate to the main house. [redacted]. Mr Tomasovich would be permitted to live at the property until the property is put up for sale. It is not known when this will occur.[99]
[99] CSA Report, page 404.
Concern is expressed in the report regarding the 'proximity' of the proposed accommodation to numerous licensed premises, of which there are 26 within a two-kilometre radius, and also to the fact that there are some 108 registered firearms within 500 m of the proposed address.[100]
[100] CSA Report, page 405.
In the above respects, I note that Mr Tomasovich has been diagnosed with substance use disorder, and his drug and alcohol use has been associated with his past offending (including a serious offence committed under the influence of alcohol). I also note that he has reported that heavy alcohol use leads to amphetamine use.
Further, although Mr Tomasovich has never used a real firearm in the course of his offending, he has committed numerous armed robbery offences in the past.
However, in connection with the potential concerns raised in the CSA Report regarding the proximity of Mr Tomasovich's proposed accommodation to licenced premises, Professor Pyszora testified that: 'if Mr Tomasovich wants to drink alcohol, there's a bus stop nearby … any supply of alcohol is a risk, but if he's placed in the metro area, wherever he is, he's likely to have relatively easy access to alcohol'.[101]
[101] ts 190.
Further, in connection with the potential concerns raised concerning proximity of those premises to registered firearms, Professor Pyszora noted that 'Mr Tomasovich's previous armed robberies have never involved an actual firearm. He has either pretended to have a gun or has had a replica firearm bought from toy stores. And one would assume that registered firearms would be securely stored'.[102]
[102] ts 190 - 191.
Another concern raised in the CSA Report was that it did not appear that Mr Tomasovich's father was able to detect a decline in his mental health when in the community previously, although he was living elsewhere at that time.[103]
[103] CSA Report, pages 404 and 410.
The CSA Report concludes with a proposal that some 42 'additional conditions' be imposed (that is, in addition to the standard conditions) if Mr Tomasovich were to be granted a supervision order.
According to the report, those conditions were proposed in consultation with Professor Pyszora.

Treatment Progress Report

No progress report relating to any treatment of Mr Tomasovich's psychological needs was available at the time of hearing.
Instead, two letters were sent to the Court dated 19 February 2024 and 12 April 2024.
In the first letter, Ms Place, among other things, noted that:
(a)at the 2022 HRSO hearing, [Professor] Pyszora recommended that Mr Tomasovich participate in individual psychological therapy 'to address his criminogenic needs';
(b)[Dr] Yewers, in her report [prepared for the purposes of the same hearing], had agreed that treatment should proceed, however 'she did not specify which method of treatment (group or individual) should be provided';
(c)in line with the recommendation from [Professor] Pyszora, the COMU had actioned a referral to the Forensic Psychological Intervention Team (FPIT) 'in 2023';
(d)Mr Tomasovich had 'yet to be assigned' a treating clinician, and had 'not received any form of treatment since his last court date'; and
(e)as a result, 'there are no treatment outcomes to review or comment on'.
I digress to observe that:
(a)in her 2022 report, Dr Yewers had recommended that Mr Tomasovich's treatment needs should be addressed 'as recommended in previous assessments'[104] and referenced an earlier report of Dr Amanda Thompson, a senior forensic psychologist with the Department, dated 29 June 2020; and
(b)Dr Thompson's 15-page report:
(i)had also formed part of the materials before Curthoys J at the 2022 hearing; and
(ii)contained detailed recommendations for Mr Tomasovich's treatment, including the provision of 'targeted psychological intervention' by a specialist psychological service psychologist/PHS as required.
[104] Psychological Report of Dr Tara Yewers dated 8 May 2022 [162].
In her letter dated 12 April 2024, Ms Place provided an update to the Court. According to the update, Mr Tomasovich had been assigned a treating clinician, and would be assessed as to whether treatment would be suitable on 22 April 2024.
I note that the scheduled date was three days after 19 April 2024; being the date set for Mr Tomasovich's review hearing before me.
At that hearing, Ms Place informed the Court that there had been no referral of Mr Tomasovich to her unit, the Forensic Psychological Assessment Team (FPAT), until 6 October 2023.[105]
[105] ts 222.
This was not only more than 10 months after the date upon which Curthoys J made the continuing detention order, but also some eight days after the State had filed its application for the first review of that order (ie. on 28 September 2023).
Ms Place ascribed the delay between her unit, the FPAT, receiving the referral on 6 October 2023, and Mr Tomasovich only being assigned a treating clinician on 10 April 2024, to significant understaffing in the FPIT.[106]
[106] ts 223.
However, what could not adequately be explained was the time taken between Mr Tomasovich having been found a high risk serious offender, on 24 November 2022, and the referral to the FPAT, which only occurred on 6 October 2023.[107]
[107] ts 227.
Professor Pyszora's recommendation that Mr Tomasovich participate in individual psychological therapy 'to address his criminogenic needs' was, in my view, unambiguous.
With the benefit of that recommendation, and the other evidence before his Honour, Curthoys J made the continuing detention order for the purposes of Mr Tomasovich's 'control, care and treatment'.[108] (emphasis added)
[108] The State of Western Australia v Tomasovich [No 2] [2022] WASC 402 [175].
This, of course, accords with one of the express objects of the HRSO Act; namely, to 'provide for the continuing control, care or treatment of high risk serious offenders'.[109] (emphasis added)
[109] HRSO Act s 8(b).
Despite the above, Mr Tomasovich was not offered any form of psychological treatment in custody in the nearly 17 months between the time Curthoys J's order was made on 24 November 2022, and the time when Mr Tomasovich's review hearing before me commenced on 19 April 2024.
In my view, this failure is inconsistent with the statutory scheme.
The above matters are of significant concern to the Court.
No doubt appropriate steps will be taken to ensure that failures of a similar kind do not occur again.
Pleasingly, on 29 April 2024, Mr Tomasovich was interviewed by one of the Department's clinical psychologists.
Mr Tomasovich was described in the psychologist's memorandum as 'affable' and was said to have spoken 'without prompting'. The memorandum from the psychologist further recorded that Mr Tomasovich stated on several occasions that he was '100% motivated' and committed to attending counselling both prior to his release and as relevant to compliance with a future supervision order.[110]
[110] Exhibit 4 (memorandum by David Summerton dated 1 May 2024).

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

'Propensity' means that the offender has an inclination, tendency, or a disposition to commit serious offences either generally, or in a particular way, or upon a particular type of victim.[111]
[111] The State of Western Australia v Mills [No 2] [2023] WASC 126 [78]; Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [178].
Professor Pyszora's 2024 Report indicates that Mr Tomasovich is likely to commit further serious offences, particularly in the context of armed robbery or attempted armed robbery.[112]
[112] 2024 Pyszora Report [146], [153].
The report also indicates that Mr Tomasovich is likely to commit such offences on the vulnerable.[113] He is not likely to commit offences on men, or upon people who can retaliate.[114]
[113] 2024 Pyszora Report [147].
[114] 2024 Pyszora Report [147].
Although Professor Pyszora does not suggest that Mr Tomasovich has a propensity to commit serious offences other than armed robbery or attempted armed robbery, she does suggest that he has a propensity to engage in offending involving grievance fuelled retribution and that this may manifest itself in the commission of a serious offence.

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

Mr Tomasovich has repeatedly committed armed robbery (or attempted armed robbery) with a toy or replica firearm, and by threatening his victim with this firearm.[115] Mr Tomasovich has never carried an actual firearm in the carrying out of his offences.[116]
[115] 2024 Pyszora Report [146].
[116] 2024 Pyszora Report [146].
Mr Tomasovich also has a pattern of breaching his previous supervision order by possessing and using methylamphetamine.

Efforts by offender to address cause(s) of offending behaviour, including participation in any rehabilitation programme - s 7(3)(e)

Historically, Mr Tomasovich has participated in several rehabilitation programs during periods of incarceration:
(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.[117]
[117] 2022 Pyszora Report [238] - [245].
Mr Tomasovich also attended and completed the voluntary alcohol and other drugs (PAST) program in mid-2023.[118]
[118] 2024 Pyszora Report [54].
As has been noted above, Mr Tomasovich has also recently advised one of the Department's clinical psychologists that he is '100% motivated' and committed to attending counselling.

Whether participation in any rehabilitation program has had positive effect - s 7(3)(f)

Mr Tomasovich is said to have participated in all therapeutic activities as part of the PAST program, and was a 'keen attentive group member'.[119]
[119] CSA Report, page 402.
Mr Tomasovich advised Professor Pyszora that the program had 'definitely helped' him, and taught him about drug use, lapses and relapses, financial impacts, and alteration in mental health.[120] Mr Tomasovich acknowledged he would always be a recovering addict for methamphetamine,[121] and also indicated that he would be happy to undertake further Narcotics Anonymous classes. [122]
[120] 2024 Pyszora Report [88].
[121] 2024 Pyszora Report [88].
[122] 2024 Pyszora Report [88].
According to Professor Pyszora, Mr Tomasovich also felt confident that he would remain free of alcohol in the future and would continue drinking alcohol free beers.[123]
[123] 2024 Pyszora Report [88].
In my view, the above evidence would indicate that the PAST program had at least some positive impact on Mr Tomasovich.

Need to protect members of community from risk of offender committing serious offence - s 7(3)(i)

Although, Mr Tomasovich has to date not been convicted of a 'serious offence', as defined under the HRSO Act, which resulted in grave physical injury to any person, and while none of those offences have been carried out with real firearms, I note that Mr Tomasovich's offence on 24 July 2008 involved stabbing his female partner to the head with a knife.
Moreover, as Professor Pyszora has opined, the psychological harm to victims of armed robberies of the kind of which Mr Tomasovich has been convicted 'would be significant'.[124]
[124] 2024 Pyszora Report [148].
In this regard Mr Tomasovich has, in the past, repeatedly threatened victims with a firearm (albeit a replica), often pointing it at his victims with accompanying verbal demands and threats. It is reasonable to conclude that a victim of such an offence would frequently be left with the impression that, at the very least, their life was in danger. Such an experience is often extremely traumatic. The need to protect members of the community from this risk is not easily dismissed.
There is a need to prevent members of the community from being subjected to this kind of trauma and from being the subject of armed robbery.
There is, in my view, plainly also a need to prevent members of the community from the risk of a serious offence being committed which may result, in this case, from offending involving grievance fuelled retribution.

Risk of offender committing serious offence if not subject to restriction order - s 7(3)(h)

The serious offences that Mr Tomasovich has in the past committed are armed robbery and attempted armed robbery.
As noted, Professor Pyszora considers that, in the future:
(a)Mr Tomasovich is most likely to commit a 'serious offence' of a similar kind;[125]
(b)however, 'more likely than a further armed robbery offence' is the prospect of Mr Tomasovich engaging in offending involving 'grievance fuelled retribution', for which he presents a 'chronic' risk.[126]
[125] 2024 Pyszora Report [146].
[126] 2024 Pyszora Report [152].
In her report, Professor Pyszora concluded that Mr Tomasovich presents a high risk of committing a further serious offence, most likely in the same vein as his previous serious offences: armed robbery or attempted armed robbery, using a replica or toy firearm.[127]
[127] 2024 Pyszora Report [146].
In her opinion, Mr Tomasovich presents a high risk of committing such an offence if he is not subject to a restriction order.[128]
[128] 2024 Pyszora Report [153].
I am only required to consider the risk of the offender committing a 'serious offence' for the purposes of the HRSO Act.[129]
[129] HRSO Act (WA) s 7(1).
In my view, an inference that there is a high likelihood of Mr Tomasovich committing further armed robbery or attempted armed robbery is supported by Mr Tomasovich's repeated past offending of that nature.
Further, having particular regard to Professor Pyszora's opinion to the effect that there is even a greater chance of Mr Tomasovich engaging in conduct involving 'grievance fuelled retribution', and that use of a weapon in any attack may result in a serious offence for the purposes of the HRSO Act, I consider there is also the real prospect of Mr Tomasovich committing other serious offences, potentially of a violent nature; including an act causing bodily harm or danger, done with intent to harm.[130]
[130] HRSO Act (WA) sch 1 div 1 Item 15.
In all the circumstances, I am satisfied that the likelihood of Mr Tomasovich committing a further serious offence is high.
In determining whether an offender is a high risk serious offender, it is not only necessary to consider the likelihood of the risk eventuating, but also the nature and gravity of the risk.[131]
[131] The State of Western Australia v AB [No 3] [2022] WASC 126 [382]; The State of Western Australia v ACJ [2021] WASC 219 [28] - [29].
Mr Tomasovich's pattern of offending involves committing armed robbery without causing serious physical injury, while being armed with a toy or replica firearm. However, there is always the possibility that Mr Tomasovich's offending may escalate so that such an injury is inflicted.
Further, as noted, Professor Pyszora considers that Mr Tomasovich is most likely to engage in offending involving grievance fuelled retribution. If Mr Tomasovich were to use a weapon in such an offence, there is, in my view, the real prospect of it resulting in the offence being a serious offence.

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

The questions the court must answer are (1) whether the risk of the offender committing a further serious offence is an 'unacceptable' risk, and (2) whether it is necessary to make a restriction order for the adequate protection of the community. The second question requires the court to make evaluative assessments (of 'necessity' and 'adequacy'). [132]
[132] The State of Western Australia v Garlett [2021] WASC 387 [136(a)], [138]; The State of Western Australia v Dragon [No 2] [2022] WASC 189 [19].
On the evidence before me, that evidence being acceptable and cogent, I am satisfied to a high degree of probability, that Mr Tomasovich poses an 'unacceptable risk' of committing a serious offence.
On the evidence before me, I am also satisfied to a high degree of probability that it is necessary to make a restriction order in relation to Mr Tomasovich to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence.[133]
[133] HRSO Act s 7(1).
As such, Mr Tomasovich remains a high risk serious offender.

Whether to make a continuing detention order or a supervision order?

I turn to whether to affirm Mr Tomasovich's continuing detention order, or to replace it with a supervision order.

Substantial compliance

Under s 29(1) of the HRSO Act, the 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 the order as made.
Section 29(2) confirms the onus of proof in relation to s 29(1) is on the offender.
The standard conditions of a supervision order are as set out in paragraph 40 above.
In her oral evidence, Professor Pyszora testified, in response to a question about whether she had any reason to be concerned that Mr Tomasovich would not likely comply with the standard conditions, that there was no reason why he should not substantially comply.[134]
[134] ts 218.
Professor Pyszora noted that Mr Tomasovich was 'certainly in a better position now',[135] and also that any previous breaches of his interim supervision order had related to conditions which were not the standard conditions.[136]
[135] ts 220.
[136] ts 220.
I accept this evidence, and am satisfied that Mr Tomasovich will substantially comply with the standard conditions as listed in s 30(2) of the HRSO Act.

Disposition

Having carefully considered all the material before me, and the evidence adduced at the hearing, I am satisfied that a supervision order is sufficient to ensure the adequate protection of the community.
I heard from counsel for the parties as to the proposed conditions of a supervision order. The proposed conditions include the standard conditions required by the HRSO Act.[137]
[137] HRSO Act s 30(a) - (g).
They also include further conditions, which were developed by reference to the recommendations of Professor Pyszora,[138] as well as the CSA Report.[139]
[138] 2024 Pyszora Report [153] - [165].
[139] CSA Report, pages 410 - 415.
At the hearing on 19 April 2024, I expressed preliminary concerns as to the formulation of some of the proposed further conditions.
Following that hearing, the State produced a revised set of proposed conditions in consultation with counsel for Mr Tomasovich.
At the hearing on 3 May 2024, I discussed the revised proposal with counsel for the parties.
For the reasons discussed with counsel, I foreshadowed that I was content to impose conditions substantially as contained in the revised proposal, subject to some minor variations.

Orders

Accordingly, I make an order that Mr Tomasovich's continuing detention order be rescinded, and that in its place a supervision order be made subject to the conditions which I now publish.[140]
[140] See Annexure A.

Annexure A

Pursuant to section 68(1)(b) of the High Risk Serious Offenders Act 2020 (WA), the Court, having found that the Respondent remains a high risk serious offender within the meaning of s 7(1) of the High Risk Serious Offenders Act 2020 (WA), makes a supervision order in relation to the Respondent, for a period of five (5) years from 27 May 2024, not being a date earlier than 21 days from the date this Order is made, on the following conditions:

You, KAMM LUKE TOMASOVICH, must:

STANDARD CONDITIONS REQUIRED BY THE HRSO ACT

Report to a Community Corrections Officer (CCO) at the East Perth Adult Community Corrections Centre, Level 1, 30 Moore Street East Perth Western Australia, within 48 hours of being issued this Order and advise the CCO of your current name and address.

Report to and receive visits from, a CCO as directed by the Court.
Notify a CCO of every change of your name, place of residence, or place of employment at least two (2) business days before the change happens.
Be under the supervision of a CCO, which includes complying with any reasonable direction of the CCO (including direction for the purposes of s 31 or s 32).
Not leave, or stay out of the State of Western Australia without the permission of a CCO.
Not commit a serious offence during the period of the Order.
Be subject to electronic monitoring under s 31.

ADDITIONAL CONDITIONS

Residence

Take up residence at [redacted] and spend each night at that address or at a different address only if such different address is approved in advance by a CCO assigned to you.

Reporting to a CCO and supervision by a CCO

Report to, and receive visits from, a CCO at times and at places as directed by the CCO and comply with the lawful orders and directions of a CCO.
Not commence or change paid or unpaid employment, volunteer work, education, or training without the prior approval of a CCO.
Disclose to a CCO the name and details of any paid or unpaid employment, education, training or volunteer work in which you intend or seek to commence.

Attendance at programs or treatment

Consult, engage and attend appointments with any medical practitioner, psychiatrist, psychologist, mentor, support service, counsellor and/or support person nominated by a CCO, as directed by a CCO.
Comply with the requirements of all programs designed to address your serious offending behaviour and/or risk of serious re-offending, as directed by a CCO.

Reporting to WA Police

Report to WA Police at times and at locations as directed by a CCO or WA Police.
If requested, permit Police Officers to enter and search your residence and/or vehicle, and/or search your person for the purpose of monitoring your compliance with your obligations under this Order and allow the seizure of any such items that the Police Officers believes to contravene the conditions of the Order.
Remain at your premises and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the provisions of the High Risk Serious Offenders Act 2020.

Disclosure/Exchange of Information

Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information.
Allow a CCO, WA Police, or other person or agencies approved by a CCO, to interview any associates or potential associates and, where appropriate to disclose to them confidential information including your offending history.

Restrictions on contact with Victims

Have no contact, directly or indirectly, with any victim of your violent offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-Offender Mediation Unit of the Department of Justice.
Unless contact with the victim is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your violent offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victims at all times.
Report to a CCO and WA Police any contact with any victim of your offending on the next working day you report to a CCO or WA Police.

Criminal conduct

Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments.
Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014, and your use is in accordance with the instructions of the prescriber.

Curfew

Be subject to a curfew, pursuant to s 32 of the High Risk Serious Offenders Act 2020, such that you are to remain at and not leave your approved address as directed by a CCO from time to time.
When subject to a curfew under this order, present yourself for inspection at the front door or front yard of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew.
When subject to a curfew under this Order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew.

Prevention of high-risk situations

Not associate with any person known by you to be subject to a High Risk Serious Offender Interim or Supervision Order in the community, unless such association is authorised in advance by a CCO. The term 'associate' does not include the bare minimum of interaction or communication necessary between two people to promptly and civilly terminate any inadvertent or uninvited invitation or community.
Not associate with [redacted].
Attend for, and submit to, urinalysis or other testing for alcohol, prohibited or nonprescribed drugs and/or medication as directed by a CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place.
Provide a valid sample pursuant to Condition 29.
Not purchase, or possess, or consume alcohol.
Not enter, or remain at, any premises which you know, or should reasonably know, are licensed premises unless:
a.For the purpose of averting or minimising a serious risk of death or injury to yourself or another person; or
b.For a purpose, and duration approved in advance by a CCO; or
c.On the order of a CCO or Police Officer; or
d. For the purpose of consuming a meal and any non-alcoholic beverage(s) at a restaurant with one or more member(s) of your immediate family provided:
(i)prior notice of at least 24 hours is given to a CCO of the names of the member(s) of your immediate family who will be attending (or are likely to attend) with you, the location of the restaurant, and the day and time you will (or are likely) to attend; and
(ii)you do not remain in attendance at such restaurant for longer than three-and-a-half (3½) hours or for such longer period of time (if any) as may be approved in advance by a CCO.

Not remain in the presence of any person who you know, or should reasonably know is affected by alcohol or prohibited substances, unless the identity of such person is approved in advance by a CCO or Condition 32(d) applies.
Not remain in any place where prohibited drugs are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place, or request the persons consuming prohibited drugs to leave your residence and to immediately approach or phone the police if the persons do not comply with your request.
Advise a CCO or Police Officer of every computer, telecommunication and/or electronic device capable of storing digital data or information, possessed or used by you, whether or not it is capable of being connected to the internet, and the location of that device.
Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in Condition 35, without prior approval of a CCO or for a purpose approved in advance by a CCO.
Enable device locking or password access to your computer, telecommunication and/or electronic devices, and not provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device referred to in Condition 35, or any online accounts, to any person other than a CCO or Police Officer unless otherwise approved in advance by a CCO.

Upon request, permit a CCO or WA Police at any location nominated by them, to access any computer, telecommunication and/or device capable of storing digital data, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device; this includes providing all screen name(s), user name(s), and email addresses. Should any other entity be required to access a device for instances such as technical advice, approval must be sought in advance from a CCO.

Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunication and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police and to notify a CCO once done.
Not to be in possession of any firearm, any ammunition or any offensive or prohibited weapon, replica or dangerous article and not to apply for, acquire or hold a licence to possess any firearm, any ammunition or any offensive or prohibited weapon, replica or dangerous article.

Medications/Mental Health

Attend and engage with any medical practitioner, psychologist, psychiatrist, or counsellor as directed by the supervising CCO.
Undergo medication treatment, including dose and type of antipsychotic medication as directed by the CCO in accordance with any advice having been given by a medication practitioner or medical practitioners.

Disclose to a CCO on the next occasion you report to that person or agency any medical practitioner you attend for treatment, to allow for oversight and monitoring to occur regarding your treatment.

Attend and engage with mental health services as nominated by a CCO and to follow the advice of the treating medical practitioner, psychologist, psychiatrist or counsellor with regard to treatment and medication.

Comply with all testing to monitor your compliance with that treatment as directed by a CCO.

Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of reoffending and compliance with treatment to the Department of Justice.

Permit any medical practitioner or medical practitioners to advise a CCO immediately if they become aware or suspect that you have, or intend to cease undergoing antipsychotic medication contrary to the advice of the medical practitioner or medical practitioners, or you have apparently ceased to consult with that medical practitioner or medical practitioners on such treatment.
Comply with the requirements of the Community Forensic Mental Health Service (CFMHS) as directed by a CCO.

Advise a CCO in the manner that they direct of any new medication prescription prior to or immediately after commencing it, except where the new prescription is issued or new prescription medication is administered to you as an inpatient in hospital, urgently after hours, or in other circumstances of emergency, in which case you are to advise a CCO thereof as soon as practicable after such circumstances have ended.

Advise a CCO in the manner that they direct of any cessation, or change to the dosage or manner of administration, of any prescribed medication you are taking, prior to or immediately after any such cessation or change, except where such cessation or change occurs while you are an inpatient in hospital, urgently after hours, or in other circumstances of emergency, in which case you are to advise a CCO thereof as soon as practicable after such circumstances have ended.
_______________________________
THE HON JUSTICE MUSIKANTH

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JR
Associate to the Judge
3 MAY 2024