The State of Western Australia v Warmdean [No 5]

[2024] WASC 396

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- WARMDEAN [No 5] [2024] WASC 396

CORAM:   STRK J

HEARD:   17 OCTOBER 2024

DELIVERED          :   17 OCTOBER 2024

PUBLISHED           :   24 OCTOBER 2024

FILE NO/S:   SO 2 of 2018

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

WILLIAM STANLEY JOSEPH WARMDEAN

Respondent

Catchwords:

Criminal law - High Risk Serious Offenders Act 2020 (WA) - Contravention proceedings - Respondent before the court under a warrant issued under s 51(3) of the High Risk Serious Offenders Act 2020 (WA) - Whether detention order should be made pending determination of pending contravention proceedings

Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

Contravention application programmed to hearing

Respondent to be detained in custody pursuant to s 53(2)(b)

Category:    B

Representation:

Counsel:

Applicant	:	J Lloyd
Respondent	:	T Hager

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Geoffrey Miller Chambers

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 Warmdean [2019] WASC 6

Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4

The State of Western Australia v CA [No 4] [2024] WASC 28

The State of Western Australia v MAR [No 4] [2023] WASC 271

The State of Western Australia v Slater [No 2] [2021] WASC 465

The State of Western Australia v Warmdean [No 2] [2020] WASC 454

The State of Western Australia v Warmdean [No 3] [2021] WASC 438

The State of Western Australia v Warmdean [No 4] [2023] WASC 195

STRK J:

Introduction

1. The State of Western Australia filed an application under s 53 and s 55 of the High Risk Serious Offenders Act 2020 (WA) commencing contravention proceedings with respect to the respondent, who was brought before the Supreme Court under a warrant that had been issued on 16 October 2024 by a magistrate under s 51(3) of the High Risk Serious Offenders Act. In support of the application the State read four affidavits, that of Fleur Marie Allen affirmed on 16 October 2024; Roxanne Stockton affirmed on 8 October 2024; Beau Gregory Desmond Moulton affirmed on 14 October 2024; and Shae Rene Hazzard affirmed on 15 October 2024. The State also referred to a minute of proposed orders provided to the court and to counsel for the respondent on 16 October 2024.

2. In addition to making directions for the hearing of the contravention proceedings, the issue to be determined was whether the respondent ought be released on a supervision order or detained in custody, pending the determination of the contravention proceedings.

3. I did not understand any of the orders in the State's minute of proposed orders to be opposed, and counsel for the respondent did not press for the respondent to be released. It was not argued on behalf of the respondent that his release was justified by exceptional circumstances, nor did counsel for the respondent submit that the court could be satisfied that the respondent would substantially comply with the standard conditions of the supervision order (including any amendments to the standard conditions).

4. The concession was properly made, and in all the circumstances, it was appropriate that the respondent remain subject to an interim detention order pending the determination of the contravention proceedings. Set out below are my reasons.

Background

1. As to the background to the application, I note as follows.

2. On 14 January 2019 an application made on behalf of the State for an order under div 2 of the Dangerous Sexual Offenders Act 2006 (WA) was heard. By that application the State sought an order that:

   (a) the respondent be detained in custody for an indefinite term for control, care or treatment;

   (b)alternatively, that the respondent be subject to conditions when not in custody,

   on the basis that he was a serious danger to the community, in that there was an unacceptable risk that, if one of those orders were not made, the respondent would commit a serious sexual offence.[1] The respondent was then 21 years old.

   [1] As defined in s 4A of the Dangerous Sexual Offenders Act.

3. After hearing the application, the court was satisfied to a high degree of probability that there was an unacceptable risk that the respondent would commit a serious sexual offence if not subject to a detention or a supervision order; and concluded that there were no conditions that could be imposed that would adequately reduce the risk that the respondent would commit further serious sexual offences if he was released into the community, and it was necessary that he be made subject to a continuing detention order pursuant to s 17(1)(a) of the Dangerous Sexual Offenders Act.[2]

   [2] Director of Public Prosecutions (WA) v Warmdean [2019] WASC 6 (Fiannaca J).

4. The continuing detention order was subject to review under the Dangerous Sexual Offenders Act. However, before a review was conducted, the Dangerous Sexual Offenders Act was repealed and replaced by the High Risk Serious Offenders Act, which came into force on 26 August 2020. Pursuant to s 125 of the High Risk Serious Offenders Act, the continuing detention order made by the court on 14 January 2019 was preserved. The High Risk Serious Offenders Act also required that the continuing detention order imposed on the respondent be reviewed, and on 24 November 2020 the court undertook the first review of the continuing detention order pursuant to the High Risk Serious Offenders Act.

5. On 11 December 2020 the court rescinded the continuing detention order and imposed a supervision order in relation to the respondent for the period of 10 years.[3] The respondent was released on the supervision order on 20 January 2021. The supervision order included 59 conditions to which the respondent was to adhere.

   [3] The State of Western Australia v Warmdean [No 2] [2020] WASC 454 (Curthoys J).

6. The respondent breached the supervision order on 13 occasions during the period of 4 February 2021 to 9 March 2021. Nine contraventions were the subject of a charge under s 80(1) of the High Risk Serious Offenders Act, four were not. The respondent pleaded guilty to contravening the supervision order with respect to the nine contraventions charged, and admitted the four uncharged contraventions.[4]

   [4] The State of Western Australia v Warmdean [No 3] [2021] WASC 438 [14] ‑ [19], [76] and [278] (Derrick J).

7. On 9 December 2021 after finding the contraventions proved, the court rescinded the supervision order and made a continuing detention order in relation to the respondent.[5] The court was not satisfied that the respondent would substantially comply with the standard conditions of a supervision order specified in s 30(2)(d), s 30(2)(f) and s 30(2)(g) of the High Risk Serious Offenders Act.[6]

   [5] The State of Western Australia v Warmdean [No 3] [308] (Derrick J).

   [6] The State of Western Australia v Warmdean [No 3] [283] - [304] (Derrick J).

8. On 15 June 2022 the State applied for an order that the respondent's detention under the continuing detention order made on 9 December 2021 be reviewed as soon as practicable after 9 December 2022 pursuant to s 64 of the High Risk Serious Offenders Act. The hearing of the application took place on 26 and 27 April 2023, following which it was found that the respondent remained a high risk serious offender; that the continuing detention order made in respect of the respondent should be rescinded; and that a supervision order should be made in respect of the respondent: TheState of Western Australia v Warmdean[No 4][2023] WASC 195. The respondent was released on the supervision order on 22 May 2023.

9. Since the respondent's release on the supervision order he has been charged with 14 offences of contravening a requirement of the order contrary to s 80(1) of the High Risk Serious Offenders Act (described in these reasons as the contravention offences) and one offence of contravening s 33(3) of the High Risk Serious Offenders Act (in addition to other offences). The respondent was convicted of the various offences on his own plea of guilty. He was sentenced to 12 months' imprisonment for the offence of contravening s 33(3) of the High Risk Serious Offenders Act backdated to 27 November 2023, sentenced to lesser terms of imprisonment to be served concurrently for four other offences (described below), and was made eligible for parole. Parole was refused on 23 April 2024 and the respondent's term of imprisonment will end on 26 November 2024.

10. Since being released on the supervision order on 22 May 2023, the respondent has spent five periods in custody. First, from 4 July 2023 to 5 July 2023 (a period of 2 days in remand); secondly, from 3 September 2023 to 14 September 2023 (a period of 12 days in remand); thirdly, from 26 October 2023 to 16 November 2023 (a period of 22 days in remand); fourthly, from 28 November 2023 to 8 January 2024 (a period of 42 days in remand); and fifthly, 8 January 2024 to date (that is, 17 October 2024 and a period of 283 days of his 12 months' sentence).

11. In light of the contraventions, on 16 October 2024 the State made this application. By the application the State seeks an order under s 55(1)(a) of the High Risk Serious Offenders Act that the supervision order be rescinded and a continuing detention order be made. Further, the State moved for an order under s 53(2)(b) that the respondent be detained in custody while proceedings on the application for an order under s 55 remain pending.

12. The State moved for orders in the terms proposed in its minute dated 16 October 2024, which are reproduced below:

    1. The application for an order pursuant to section 55 of High Risk Serious Offenders Act 2020 be heard on [to be inserted].

    2.The Respondent undergo an examination by a qualified expert, namely Dr Gosia Wojnarowska, psychiatrist, for the purposes of preparing a report as required by section 74 of the High Risk Serious Offenders Act 2020 that is to be used on the hearing of the contravention application.

    3.The expert named in order 2 is not to include in her report information or opinions about the Respondent based on a communication with a third person unless details of that communication sufficient to identify the person with whom the communication was held, its date and a summary of its content are included in the expert's report.

    4.The report of the expert be provided to the Applicant at least 28 days prior to the hearing of the contravention application.

    5.Any report authored by the Department of Justice, including any Performance Report or Treatment Progress Report, be provided to the Applicant at least 21 days prior to the date of the hearing of the contravention application.

    6.The expert named in order 2 liaise with the Department of Justice as to a Management Plan (if appropriate) for the Respondent to be supervised in the community.

    7.Pursuant to section 122 of the Criminal Investigation Act 2006, the expert named in order 2 may be supplied with and may view any audio-visual recordings of interviews with the Respondent, or transcripts of the same, for the purpose of preparing her report.

    8.The Respondent be detained in custody until the final determination of the application, pursuant to section 53(2)(b) of the High Risk Serious Offenders Act 2020.

    9.There be liberty to the parties to apply generally.

13. The respondent did not oppose the making of the orders,[7] and I will make the orders in the form promoted, including an order pursuant to the court's power under s 54 of the High Risk Serious Offenders Act that the respondent undergo examination by Dr Wojnarowska for the purpose of preparing a report in accordance with s 74 of the High Risk Serious Offenders Act.

    [7] ts 375 (17 October 2024).

14. Despite the respondent's non-opposition to the order that he be detained in custody while proceedings on the application for an order under s 55 remain pending, it was necessary for me to state my reasons for so ordering which are here recorded.

The respondent's offending history

1. In considering whether to make an interim detention order, I had regard to the respondent's offending history.

2. The respondent was born on 23 October 1997 and is now 26 years of age. He has had contact with the Department of Justice since he was a juvenile and has an extensive criminal history.

3. In Director of Public Prosecutions (WA) v Warmdean at [57] to [64], Fiannaca J summarised the respondent's criminal history prior to the hearing of the State's application for a div 2 order under the Dangerous Sexual Offenders Act. I have had regard to the same as if the paragraphs were reproduced here in full.

4. In summary, I note that the respondent has six convictions for sexual offences, four of which were serious offences for the purposes of the High Risk Serious Offenders Act. His offending commenced in his adolescence and persisted into adulthood.

5. As to the occasions of serious sexual offending and serious sexually motivated offending, I had regard to the matters described at [46] to [47] in The State of Western Australia v Warmdean [No 4], again as if reproduced here in full.

The review hearing and decision

1. At the review hearing which took place on 26 and 27 April 2023, it had been the State's position that the respondent remained a high risk serious offender, and if the court so found, that the court ought rescind the continuing detention order and make a supervision order pursuant to s 68(1)(b)(ii) of the High Risk Serious Offenders Act. The State proposed that the respondent's release be subject to 59 conditions, which were set out in a minute of proposed supervision order filed on 21 April 2023.[8]

   [8] The State of Western Australia v Warmdean [No 4] [11] (Strk J).

2. The respondent was represented by counsel and did not seek to be heard in opposition to the court finding that the respondent remained a high risk serious offender. On behalf of the respondent, it was submitted that on the evidence before the court, the court ought be satisfied on the balance of probabilities that he would substantially comply with the standard conditions of supervision order. Further, it was submitted that the court might properly make a supervision order having taken into account the paramount consideration, being the need to ensure adequate protection of the community.[9]

   [9] The State of Western Australia v Warmdean [No 4] [12] (Strk J).

3. The State called three witnesses who gave evidence at the review hearing, including Dr Wojnarowska, a consultant forensic psychiatrist and author of a psychiatric report dated 19 March 2023. In her report, Dr Wojnarowska expressed her assessment of the level of risk that, without a restriction order, the respondent will commit a serious offence, and recorded that the respondent's risk of reoffending had not changed since her last assessment. She opined that when applying various tools and her clinical assessment, she considered the respondent to be at high risk of serious sexual reoffending if not subject to an order under the High Risk Serious Offenders Act.[10] Dr Wojnarowska also reported that she was of the opinion that the respondent's risk could be managed in the community subject to a supervision order,[11] and outlined a number of recommendations in her report as to supervision of the respondent and treatment.[12]

   [10] The State of Western Australia v Warmdean [No 4] [78], [99] (Strk J).

   [11] The State of Western Australia v Warmdean [No 4] [111] (Strk J).

   [12] The State of Western Australia v Warmdean [No 4] [110] - [120] (Strk J).

4. As to risk scenarios, Dr Wojnarowska recorded the following at pars 73 to 78 of her report:[13]

   RISK SCENARIO

   73. [The respondent] has consistently offended against stranger females. If he were to reoffend, a similar scenario is likely to occur. It is also likely that further escalation of his offending will take place as if not stopped by a passer-by or other witness he is likely to sexually penetrate the victim.

   74. He will likely be living in the community where females move freely in the public areas such as parks, reserves, streets, or public transport at any time of the day, including evening hours. He is likely to drink or smoke cannabis or possibly take methamphetamine with his family or friends. He may become sexually aroused after watching pornography or may just become sexually frustrated after a period of time without an outlet. He is unlikely to develop a relationship with an age appropriate woman. An argument with someone may or may not occur and he may or may not be angry just prior to his offending.

   75. He is likely than to leave to go for a walk or to catch public transport searching for a vulnerable female. He is likely to offend against any female, irrespective of their age, except for prepubescent children (less than 10 years old). There will be a degree of planning how best to approach the victim to secure her compliance. The presence of other people in the vicinity will not be a deterrent.

   76. He is likely to offend alone. The harm to the victim is likely to be psychological and physical. The physical injuries will relate to the sexual act and additional violence. It is also possible he may resort to killing the victim to obtain compliance and avoid being caught for the offence.

   77. Every-day life stressors, arguments with his family members and boredom associated with lack of structured activity would lead to [the respondent] resorting to cannabis to regulate his mood. Limited opportunity to engage sexually with consenting, age-appropriate females is also perceived as an important risk factor.

   78. The main driving force in his offending will be his sexual frustration and anger associated with his personal circumstances facilitated by alcohol or other drugs intoxication.

   [13] Reproduced in The State of Western Australia v Warmdean [No 4] [109] (Strk J).

5. The State also called Ms Collyer, a senior counselling psychologist employed by the Department of Justice and author of the psychological treatment report dated 19 January 2023.[14] Among other things, Ms Collyer made a number of recommendations as to the future management of the respondent.[15]

   [14] The State of Western Australia v Warmdean [No 4] [26] (Strk J).

   [15] The State of Western Australia v Warmdean [No 4] [129] - [133] (Strk J).

6. In determining that application, the responsibility for deciding whether or not the offender remained a high risk serious offender (formerly a serious danger to the community) as defined, and if so what order should be made, was that of the judge alone.[16] For the reasons published, it was found that the State had established to a high degree of probability that there remained a high risk that upon release, if not subject to a restriction order, the respondent would commit further serious sexual offences against adolescent and adult women, which offending may escalate in violence to obtain compliance or consent or to avoid detection. It was also found that such offending of a sexual nature would have immediate and long term consequences for the victim, and offending of a violent nature would have the potential to cause serious injury and considerable fear and trauma for the victim, with some risk of death.[17]

   [16] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [62], which concerned an application under the now repealed Dangerous Sexual Offenders Act.

   [17] The State of Western Australia v Warmdean [No 4] [151] (Strk J).

7. On balance, after having considered all of the evidence, it was concluded that the respondent's risk of reoffending could be adequately managed in the community, with the imposition of a supervision order for a period of five years. Accordingly, the continuing detention order was rescinded and a supervision order was made in the terms provided to the parties in advance of the hearing on 26 April 2023, set out at sch A to the reasons that were subsequently published.[18]

   [18] The State of Western Australia v Warmdean [No 4] [173] - [197], [199], sch A (Strk J).

The contraventions

1. It is not necessary for me to recite in detail the facts of the contravention offences. They were described by Ms Stockton in her affidavit and were revealed by the documents annexed to Ms Allen's affidavit. I had regard to the same.

2. For present purposes it suffices for me to set out the following brief details of the contravention offences:

   1.On 5 July 2023 the respondent was convicted on his plea of guilty of one offence of contravening a requirement of the supervision order by possessing non-indecent images of children on his phone (PE 33800/2023). The respondent committed the offence on 4 July 2023 and was fined for the offence.

   2.On 23 August 2023 the respondent was convicted on his plea of guilty of three offences of contravening a requirement of the supervision order by consuming alcohol, having contact with a child under the age of 18 years without authorisation, and not immediately withdrawing from the presence of the child (PE 35216 - 35218/2023). The respondent committed the first offence on 11 July 2023, and the other two offences on 8 July 2023. The respondent was fined for the first offence and given a global fine for the other two offences.

   3.On 23 August 2023 the respondent was convicted on his plea of guilty of one offence of contravening a requirement of the supervision order by consuming alcohol (JO 7859 of 2023). The respondent committed the offence on 17 August 2023 and was fined for the offence.

   4.On 14 September 2024 the respondent was convicted on his plea of guilty of one offence of contravening a requirement of the supervision order by breaching curfew (PE 43940/2023). The respondent committed the offence on 2 September 2023 and was fined for the offence.

   5.On 11 October 2024 the respondent was convicted on his plea of guilty of one offence of contravening a requirement of the supervision order by consuming alcohol (JO 9545/2023). The respondent committed the offence on 10 October 2023 and was fined for the offence.

   6.On 17 October 2023 the respondent was convicted on his plea of guilty of three offences of contravening a requirement of a supervision order and of one offence of using a prohibited drug, namely cannabis (PE 51483 - 51486/2023). The respondent contravened the requirements of the supervision order by failing to attend an appointment with a psychologist as directed, by providing a positive urine sample for cannabis and by possessing pornographic material on his phone (PE 51483 ‑ 51484, 51486/2023). The respondent committed all offences on 12 October 2023, and was given a global fine for the offences.

   7.On 16 November 2023 the respondent was convicted on his plea of guilty of one offence of contravening a requirement of a supervision order by being present at the playground while children were present, and of one offence under s 557K of the Criminal Code for being so (PE 53132 ‑ 53133/2023). The respondent committed the offences on 10 October 2023 and was given a global fine for the offences.

   8.On 8 January 2024 the respondent was convicted on his plea of guilty of one offence of contravening a requirement of a supervision order by possessing pornographic materials on his phone through 'SBS on Demand' (PE 58346/2023). The respondent committed the offence on 20 November 2023. He was sentenced to two months' imprisonment, to be served concurrently with the additional sentences imposed on 8 January 2024 (outlined below).

   9.Further, on 8 January 2024 the respondent was convicted on his plea of guilty of one offence of criminal damage or destruction to property, of one offence of removing or interfering with an electronic monitoring device fitted as a result of a supervision order, and of two offences of contravening a requirement of a supervision order. The respondent committed the offences on 27 November 2023. The respondent was given a head sentence of 12 months' imprisonment with respect to the offence under s 33(3) of the High Risk Serious Offenders Act (PE 59681/2023), backdated to 27 November 2023. For the remaining contravention offences which concerned the failure to return home for curfew and the consumption of alcohol (PE 59682/2023 and PE 59683/2023), the respondent was also sentenced to two months' imprisonment, to be served concurrently.

3. I understand from Ms Allen's affidavit at par 51 that the State intends to file particulars of the contravention charges before the final hearing of the contravention application, but at this stage, the State anticipates that the particulars will mirror the statements of material facts for each of the 15 contravention charges annexed to Ms Allen's affidavit.[19] In determining whether to make an order under s 53(2)(b) of the High Risk Serious Offenders Act, I had regard to the statements of material facts.

   [19] Affidavit of FM Allen affirmed 16 October 2024, annexures 'E', 'H', 'K', 'M', 'P', 'S' 'V', 'Y' and 'AC'.

Evidence before the court

1. I note that the State read the affidavits affirmed by Ms Allen, Mr Moulton, Ms Stockton and Ms Hazzard, without objection from the respondent. The respondent did not require either Ms Allen, Mr Moulton, Ms Stockton or Ms Hazzard to submit themselves to cross‑examination on the content of their respective affidavits.[20]

   [20] ts 377 (17 October 2024).

2. Ms Allen is a government legal practitioner employed by the State Solicitor's Office, holding the position of Senior Assistant State Counsel. Mr Moulton is a Senior Community Corrections Officer employed by the Department of Justice, Corrective Services Division, within the Community Offender Monitoring Unit (COMU). Ms Stockton held the same position within COMU, but had relocated to another division at the time of affirming her affidavit. Ms Hazzard is a Team Leader employed by the Department of Justice, Corrective Services Division, within COMU.

Affidavit evidence of Ms Stockton

1. Ms Stockton deposed to her role case managing high risk serious offenders (so declared under the High Risk Serious Offenders Act).

2. Among other things, Ms Stockton deposed to the respondent's contraventions of the supervision order that had resulted in actions other than formal charge. She also deposed to behaviours of the respondent between 22 May 2023 and 27 November 2023 that she described as being concerning. The behaviours include alcohol and substance use; engagement with females; pornography use; and the deletion by the respondent of his viewing history on his mobile telephone.

3. With respect to parole, Ms Stockton deposed that the Prisoners Review Board had denied the respondent's early release to parole on 23 April 2024.

4. She further deposed that the support that had been made available to the respondent through disability support workers and his accommodation had been withdrawn as a result of his absconding, which had led to his arrest.

5. Ms Stockton was not in a position to suggest any meaningful amendments that could be made to the supervision orders to improve management of the respondent's risk of serious sexual offending in the community.

Affidavit evidence of Mr Moulton

1. Mr Moulton deposed that he has been the respondent's case manager since 14 June 2024 and noted that the respondent had been in custody for the entirety of this period.

2. Among other things, Mr Moulton deposed to the respondent's progress in custody; the status of the support and accommodation available for the respondent; and to his belief that there were no amendments that could be made to the supervision order that would allow for adequate management of the respondent's risk of serious sexual offending in the community.

   Affidavit evidence of Ms Hazzard

3. Among other things, Ms Hazzard deposed to the steps that were taken to secure a warrant in the Perth Magistrates Court on 16 October 2024 pursuant to s 51(3) of the High Risk Serious Offenders Act.

Disposition

Statutory context

1. Part 4 of the High Risk Serious Offenders Act concerns the restriction of offenders and div 5 concerns the contravention of a supervision order.

2. Section 53 of the High Risk Serious Offenders Act empowers the State to seek orders and, among other things, the section applies to an offender who is brought before the Supreme Court under a warrant issued under s 51(3) of the High Risk Serious Offenders Act.

3. Section 54 of the High Risk Serious Offenders Act allows the court to order reports for purposes of contravention proceedings; and s 55 concerns the orders that might be made at the substantive hearing of an application made under s 53 if the court is satisfied on the balance of probabilities that the offender to whom the application relates has contravened or is contravening a condition of a supervision order; or is likely to contravene a condition of a supervision order.

4. Section 56 of the High Risk Serious Offenders Act concerns the orders that may be made during contravention proceedings, and provides as follows:

   (1) This section applies if an offender who is subject to a supervision order is before the Supreme Court and proceedings on an application made under section 53 in respect of the offender are pending (the pending proceedings).

   (2) The court may at any time in the pending proceedings -

   (a) if the offender is detained in custody, order the offender to be released, subject to subsection (3); or

   (b) if the offender is not detained in custody, order the offender to be detained in custody.

   (3) The court cannot order the offender to be released unless it is satisfied on the balance of probabilities that -

   (a) releasing the offender is justified by exceptional circumstances; and

   (b) the offender will substantially comply with the standard conditions of the supervision order, including any amendments to the standard conditions made under subsection (7)(b).

   (4) The onus of proof as to the matter described in subsection (3)(b) is on the offender.

   (5) For the purposes of subsection (3), in considering whether releasing the offender is justified by exceptional circumstances the court may, as it thinks fit, receive and take into account information put before it, whether or not that information would normally be admissible in a court of law.

   (6) In making a decision under subsections (2) and (3), the paramount consideration is to be the need to ensure adequate protection of the community.

   (7) If the court releases the offender —

   (a) the offender remains subject to the supervision order; and

   (b) the court may, before the pending proceedings are determined, make an interim order amending the supervision order to include any requirements the court considers appropriate to ensure adequate protection of the community; and

   (c) the court may order the offender to reappear before the court at any adjourned hearing of the pending proceedings; and

   (d) if it is alleged that the offender has further breached the supervision order or breached an order made under paragraph (c), the court may issue a warrant to have the offender arrested and brought before the court.

5. In this case, s 56 is engaged as the respondent is before the court in respect of pending proceedings: s 56(1).

6. I considered whether the requirement for exceptional circumstances in s 56(3) was engaged in the disposition of the State's application pursuant to s 53(2)(b), which in turn, depended upon whether s 56(2)(a) was engaged.[21]

   [21] The State of Western Australia v Slater [No 2] [2021] WASC 465 [17], cited with approval in The State of Western Australia v MAR [No 4] [2023] WASC 271 [14].

7. In that regard, the first question was whether the respondent was 'detained in custody' within the meaning of s 56(2)(a).[22] As to how such a question is answered, I adopted the views expressed by Quinlan CJ in The State of Western Australia v Slater [No 2] at [19] - [20]:

   Prima facie, in my view, 'detained in custody', within the meaning of s 56, means detained pursuant to the provisions of the Act. Section 56(2)(a) cannot be construed as providing this Court with a general dispensing power to release persons who are otherwise in custody, either as sentenced prisoners or on remand for other offences. In the context of pt 4 div 5 of the Act, in my view, the expression 'detained in custody' would ordinarily apply to a person who is in custody as a consequence of having been arrested pursuant to a warrant issued under s 51 of the Act in relation to a suspected or anticipated contravention of a supervision order. An order of the Court would be necessary to 'release' such a person from custody, and so s 56(2)(a) would apply - including the requirements of s 56(3).

   Similarly, a person detained pursuant to an order of the Court made under s 53(2)(b) of the Act would be 'detained in custody' within the meaning of s 56(2)(a).

   [22] The State of Western Australia v Slater [No 2] [18], cited with approval in The State of Western Australia v MAR [No 4] [15].

8. In this case, a warrant for the arrest of the respondent under s 51(3) had been obtained from a magistrate. As such, the respondent was 'detained in custody' when brought before the court on 17 October 2024. Therefore, I proceeded on the basis that I was required to be satisfied on the balance of probabilities of both matters specified in s 56(3) before I could order the respondent's release under s 56(2)(a).

9. The term 'exceptional circumstances' used in s 56(3)(a) is not defined in the High Risk Serious Offenders Act. I proceeded on the basis that the term should therefore be given its ordinary meaning. Accordingly, exceptional circumstances are circumstances that are unusual, out of the ordinary, in some way special or an exception to the general trend of cases.[23]

   [23] The State of Western Australia v CA [No 4] [2024] WASC 28 [19].

10. The standard conditions of the supervision order referred to in s 56(3)(b) are those set out in s 30(2), which provides as follows:

    A supervision order in relation to an offender must require that the offender –

    (a) report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender's current name and address; and

    (b)report to, and receive visits from, a community corrections officer as directed by the court; and

    (c) notify a community corrections officer of every change of the offender's name, place of residence or place of employment at least 2 days before the change happens; and

    (d) be under the supervision of a community corrections officer and comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32); and

    (e) not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and

    (f) not commit a serious offence during the period of the order; and

    (g) be subject to electronic monitoring under section 31.

11. As to the phrase 'substantially comply' referred to in s 56(3)(b), this was considered by Fiannaca J in Director of Public Prosecutions for Western Australia v Hart in the context of contravention proceedings.[24] In the disposition of this application I adopted and applied the reasoning of Fiannaca J.

    [24] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [52].

12. The relevant questions to be decided were therefore as follows:[25]

    1.Was the respondent's release justified by exceptional circumstances?

    2.If released, would the respondent substantially comply with the standard conditions of the supervision order, including any additional conditions which could be made prior to release?

    [25] The State of Western Australia v CA [No 4] [22].

13. In making a decision under s 56(2) and (3), the paramount consideration is the need to ensure adequate protection to the community.

14. In the disposition of the application, I also adopted and applied the observations of Quinlan CJ in The State of Western Australia v Slater [No 2] at [25] - [27]:

    [T]he real issue is that which applies generally to an interim detention order (under s 46(2)(c)) or an interim supervision order under (s 58(2)(c)); namely, whether the Court is satisfied that, to ensure adequate protection of the community, it is desirable to make either an interim detention order or an interim supervision order. That is, in effect, the test that applies to the making of an interim supervision order generally.

    This points up an important aspect of any consideration of alleged contraventions of an interim supervision order. Compliance with an interim supervision order (and, indeed, any supervision order) is an important matter, and the importance of such compliance should not be understated. Nevertheless, it must be recognised, having regard to the text and structure of the Act as a whole, that an interim supervision order is not an end in, and of, itself. An interim supervision order is a means to an end: the end being the protection of the community against the risk of serious offences.

    In that sense, a supervision order or an interim supervision order will have served its purpose if it protects the community from serious offences, even if compliance with the conditions of the order, in the particular case, has not been perfect. The Court must always keep in mind that the object of the Act to be achieved is the adequate protection of the community from the commission of serious offences.

Assessment of the application

1. Having come before the court pursuant to a warrant issued on 16 October 2024 under s 51(3) of the High Risk Serious Offenders Act, I turned to consider whether the respondent should be released on a supervision order following the completion of his term of imprisonment on 26 November 2024 until the determination of the contravention proceedings.

Exceptional circumstances

1. The first question was whether exceptional circumstances existed for the purposes of s 56(2) of the High Risk Serious Offenders Act. Counsel for the respondent did not submit that there were any exceptional circumstances, and none were apparent on the evidence before the court. I found that there were no exceptional circumstances within the meaning of s 56(3)(a) of the High Risk Serious Offenders Act.

Substantial compliance with the standard conditions

1. I now turn to the question posed by s 56(3)(b) as to whether the respondent had satisfied the court on the balance of probabilities that if released, he would substantially comply with the standard conditions of the supervision order, including any amendments made to the standard conditions of the supervision order under subsection (7)(b). The onus was on the respondent to establish that he would do so on the balance of probabilities.[26]

   [26] High Risk Serious Offenders Act, 56(4).

2. When the contravention offences were viewed together, and in light of all of the circumstances which included the contravention offences, the respondent's contraventions that had resulted in actions other than a formal charge and his other concerning behaviour,[27] there appeared to be good reasons for the authorities to be concerned about their ability to manage the respondent in the community.

   [27] As discussed at [37] above.

3. The respondent has an extensive criminal history that includes convictions for serious offences comprising sexual offending. Dr Wojnarowska previously assessed that the respondent's primary risk factor in his offending 'will be his sexual frustration and anger associated with his personal circumstances facilitated by alcohol or other drugs intoxication'.[28]

   [28] Psychiatric report of Dr G Wojnarowska dated 19 March 2023, par 78.

4. The respondent has been convicted of 15 contravention offences while subject to the supervision order. The contraventions concerningly included the consumption of alcohol and other drugs, the use of which was described as being part of the respondent's primary risk factor. The respondent's removal of his electronic monitoring device was also very concerning, as was his unauthorised contact with children in circumstances where he has a history of serious sexual offending and serious sexually motivated offending against females of varying ages.[29]

   [29] The standard conditions of the supervision order set out in s 30(2) of the High Risk Serious Offenders Act includes being subject to electronic monitoring under s 31.

1. A significant difficulty that was also present was that the respondent no longer had suitable accommodation.[30] Mr Moulton deposed to a possibility that a proposed address will not be available for the respondent upon release due to ongoing assessments required and a limited supply of properties, and further deposed that there is yet to be a support team from Innovative Support Australia allocated to the respondent should he be released.

   [30] Affidavit of R Stockton affirmed 8 October 2024, page 17, par 16 - 18; affidavit of BGD Moulton affirmed 14 October 2024, pages 8 - 10.

2. On the basis of the information available, I was not satisfied that the respondent would substantially comply with the standard conditions if released. In particular, in light of the numerous contravention offences, I was not satisfied that the respondent would substantially comply with the condition to be subject to electronic monitoring, or the conditions regarding supervision by a community corrections officer and compliance with any reasonable direction. The absence of suitable accommodation made it impossible to be satisfied that the respondent's release was a viable option.

3. In the end, I was satisfied that it is necessary that the respondent be detained having regard to the paramount consideration.

4. I also considered whether a variation to the conditions might tip the balance. Unfortunately, given the range and number of breaches the subject of recent convictions, and the lack of accommodation, on the evidence before me I was not satisfied that a variation or imposition of additional conditions would ensure adequate protection of the community from the commission of serious offences.

5. Therefore, the respondent will be detained in custody while contravention proceedings on the State's application for an order under s 55 remain pending.

6. The orders otherwise promoted on the part of the State were appropriate and the contravention application was listed for substantive hearing on 17 March 2025 commencing at 10.30 am.

7. Section 54 of the High Risk Serious Offenders Act allows for the court to order reports for the purposes of contravention proceedings and by order 2, the respondent will undergo an examination by Dr Wojnarowska.

Conclusion and orders

1. For these reasons, I was satisfied that I should make an order detaining the respondent until the determination of the contravention proceedings, and the programming orders promoted on behalf of the State. A copy of the orders made on 17 October 2024 are reproduced at sch A to these reasons.

2. In the meantime, it is important that ongoing intervention by the Department of Justice's Forensic Psychological Intervention Team continues to be made available to the respondent, and that consideration be given to the submission of a request for an extended period of 24 hour, seven day funding to support the respondent.

Sch A - Orders made on 17 October 2024

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

KO

Associate to the Honourable Justice Strk

24 OCTOBER 2024