The State of Western Australia v Warmdean [No 6]

[2025] WASC 97

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- WARMDEAN [No 6] [2025] WASC 97

CORAM:   STRK J

HEARD:   17 MARCH 2025

DELIVERED          :   25 MARCH 2025

PUBLISHED           :   25 MARCH 2025

FILE NO/S:   SO 2 of 2018

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

WILLIAM STANLEY JOSEPH WARMDEAN

Respondent

Catchwords:

Criminal law - Contravention proceedings - Application made by the State under s 53 and s 55 of the High Risk Serious Offenders Act 2020 (WA) for the recission of a supervision order and for the making of a continuing detention order - Whether on the balance of probabilities the respondent has contravened a condition of the supervision order - Whether the supervision order should be rescinded, affirmed, amended or extended - Turns on own facts

Legislation:

Criminal Code (WA)
Dangerous Sexual Offenders Act 2006 (WA) (repealed)

High Risk Serious Offenders Act 2020 (WA)

Result:

Supervision order rescinded
Continuing detention order made

Category:    B

Representation:

Counsel:

Applicant	:	DS McDonnell
Respondent	:	T Hager

Solicitors:

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

Cases referred to in decision:

Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212

Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393

Director of Public Prosecutions (WA) v Warmdean [2019] WASC 6

Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297

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

Garlett v The State of Western Australia (2022) 277 CLR 1

The State of Western Australia v ACJ [2021] WASC 219

The State of Western Australia v CA [No 3] [2023] WASC 144

The State of Western Australia v Corbett [No 8] [2021] WASC 171

The State of Western Australia v Garlett [2021] WASC 387

The State of Western Australia v Gorham [No 2] [2022] WASC 351

The State of Western Australia v Latimer [2006] WASC 235

The State of Western Australia v MAR [No 5] [2023] WASC 434

The State of Western Australia v Rao [2019] WASC 93

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

The State of Western Australia v Warmdean [No 5] [2024] WASC 396

The State of Western Australia v West [No 6] [2019] WASC 427

The State of Western Australia v ZSJ [2020] WASC 330

Table of Contents

Introduction

Statutory framework and legal principles

Evidence adduced at the contravention hearing

Book of materials

Witnesses called by the State

Evidence of Dr Wojnarowska - psychiatric report

Evidence of Dr Barbas - treatment progress report

Evidence of Mr Moulton - performance report

Assessment of the application

The State's position

Has the respondent contravened the supervision order as alleged?

Contravention 1 (PE 33800/23)

Contraventions 2, 3 and 4 (PE 35216/23 - 35218/23)

Contravention 5 (JO 7859/23)

Contraventions 6 and 7 (PE 43940/23)

Contravention 8 (JO 9545/23)

Contraventions 9, 10 and 11 (PE 51483/23 - 51486/23)

Contravention 12 (PE 53132/23 - 53133/23)

Contravention 13 (PE 58346/23)

Contraventions 14, 15 and 16 (PE 59680/23 - 59683/23)

Should the supervision order be rescinded, affirmed, amended or extended?

Conclusion and orders

STRK J:

Introduction

1. These reasons concern contravention proceedings initiated by the State under the High Risk Serious Offenders Act 2020 (WA) in respect of the respondent. By way of background, I note as follows.

2. The respondent was born on 23 October 1997 and is now 27 years of age.

3. 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. The State applied for 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] For reasons delivered on the same day, 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. Further, the court 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 that 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] The respondent was then 21 years old.

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

   [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 a review of the continuing detention order under s 64 of the High Risk Serious Offenders Act as soon as practicable after 9 December 2022. 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: The State of Western Australia v Warmdean [No 4] [2023] WASC 195. The respondent was released on the supervision order for a period of five years with effect from 22 May 2023.

9. On 16 October 2024 the State filed an application under s 53 of the High Risk Serious Offenders Act commencing contravention proceedings under s 55 in relation to alleged contraventions of the supervision order.

10. For the reasons delivered on 17 October 2024, on the application of the State under s 53 and s 55 of the High Risk Serious Offenders Act, it was determined that the respondent would be detained in custody on an interim detention order pending the determination of the contravention proceedings: The State of Western Australia v Warmdean [No 5] [2024] WASC 396. Various programming orders were also made, including that the respondent would undergo an examination by a qualified expert, namely Dr Gosia Wojnarowska, a psychiatrist, for the purposes of preparing a report as required by s 74 of the High Risk Serious Offenders Act, to be used at the hearing of the contravention application.

11. In summary, as to the contravention application, it is the State's position that the court ought be satisfied on the balance of probabilities that the respondent contravened a condition of the supervision order. On behalf of the State, it is acknowledged that in the event that the court is satisfied on the balance of probabilities that the respondent contravened, or in the alternative is likely to contravene a condition of the supervision order, it is a matter for the court as to what order to subsequently make. That said, in all of the circumstances of this case, the State submits that the court should rescind the supervision order and impose a continuing detention order pursuant to s 55(1)(a) of the High Risk Serious Offenders Act, as:

    (a)the court may not be satisfied that the respondent will substantially comply with the standard conditions of the supervision order; and

    (b)the respondent's release subject to the supervision order would not ensure an adequate degree of protection to the community at this time.

12. The respondent is represented by counsel, and for the purposes of the contravention hearing the alleged contraventions of the conditions of the supervision order are conceded.[7] Counsel for the respondent correctly observed that whether the supervision order should be rescinded and a continuing detention order made, or whether the respondent should be permitted to remain on the supervision order with or without amendment or extension, in this case turns on the s 29 limitation on power to make a supervision order.[8] Indeed, counsel for the respondent identified the crux of the matter.

    [7] ts 388 (17 March 2025).

    [8] ts 388 - 389, 413 (17 March 2025).

13. The matters to be determined are:

    (1)whether, on the balance of probabilities, the respondent has contravened the supervision order; and if so

    (2)whether the supervision order should be rescinded and a continuing detention order made, or whether the respondent should be permitted to remain on the supervision order with or without amendment or extension.

14. For the reasons which follow:

    (1)I am satisfied that the respondent has contravened the supervision order; and

    (2)I have decided to rescind the supervision order and make a continuing detention order in relation to the respondent, as the respondent cannot discharge his onus as prescribed by s 29(2) of the High Risk Serious Offenders Act.

Statutory framework and legal principles

1. In The State of Western Australia v MAR[No 5] [2023] WASC 434 at [10] ‑ [21], I summarised the applicable statutory framework and legal principles, which I reproduce below. I adopt and apply the following summary in the disposition of the State's application.

2. The objects of the High Risk Serious Offenders Act are to provide for:

   (a)the detention in custody or the supervision of high risk serious offenders to ensure adequate protection of the community and of victims of serious offences; and

   (b)the continuing control, care or treatment of high risk serious offenders.[9]

   [9] High Risk Serious Offenders Act s 8.

3. The jurisprudence established in respect of the Dangerous Sexual Offenders Act is relevant in construing and applying the High Risk Serious Offenders Act, with necessary adaptation in cases involving non-sexual offences.[10]

   [10] The State of Western Australia v ZSJ [2020] WASC 330 [31].

4. The powers conferred by the High Risk Serious Offenders Act are not to be exercised for the purpose of imposing additional punishment on the offender, but rather for the ultimate purpose of protecting the community.[11]

   [11] Garlett v The State of Western Australia (2022) 277 CLR 1 [55] ‑ [56].

5. If an offender is charged with an offence under s 80(1) of the High Risk Serious Offenders Act, s 53 provides that the State may make an application for an order under s 55. On such an application, if the court is satisfied on the balance of probabilities that the offender has contravened, is contravening, or is likely to contravene a condition of a supervision order, the court must rescind the supervision order and make a continuing detention order, or, subject to s 29, release the offender on the supervision order. In the latter case, the supervision order may be amended and, in some cases, extended.[12]

   [12] High Risk Serious Offenders Act s 55.

6. The court is not required to be satisfied that the offender intentionally or deliberately contravened the supervision order, unless the condition which is in issue includes a mental element.[13]

   [13] The State of Western Australia v Corbett [No 8] [2021] WASC 171 [180] ‑ [181].

7. It is to be assumed that the respondent remains a high risk serious offender. The court is not required to make that determination again.[14] In deciding which order to make, the paramount consideration is to be the need to ensure adequate protection of the community.[15] However, the court should choose the order which is the least invasive or destructive of the offender's right to be at liberty.[16]

   [14] The State of Western Australia v CA [No 3] [2023] WASC 144 [28].

   [15] High Risk Serious Offenders Act s 55(3).

   [16] The State of Western Australia v Latimer [2006] WASC 235 [49].

8. The need to ensure the adequate protection of the community does not exclude other considerations. The use of the word 'adequate' indicates that a qualitative assessment is required.[17]

   [17] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33], approved in The State of Western Australia v Rao [2019] WASC 93 [25], and The State of Western Australia v Garlett [2021] WASC 387 [142].

9. A continuing detention order is an order that the offender be detained in custody for an indefinite term for control, care or treatment.[18] A supervision order is an order that the offender, when not in custody, is to be subject to stated conditions that the court considers to be appropriate in accordance with s 30 of the High Risk Serious Offenders Act.[19]

   [18] High Risk Serious Offenders Act s 3, s 26(1).

   [19] High Risk Serious Offenders Act s 3, s 27(1).

10. The court cannot release an offender on a supervision order unless satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order, the onus of establishing which is on the offender.[20]

    [20] High Risk Serious Offenders Act s 29, s 55.

11. The standard conditions of a supervision order are set out in s 30 of the High Risk Serious Offenders Act and include the requirement that the offender 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); not commit a serious offence during the period of the order; and be subject to electronic monitoring under s 31.[21]

    [21] High Risk Serious Offenders Act s 30(2)(d), (f), (g).

12. In Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 at [52(6)], Fiannaca J observed that, in determining whether an offender 'will substantially comply with the standard conditions of the order':

    [t]he court must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with and will enable the attainment of the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious … offence.

13. Even if the court is satisfied that the offender will substantially comply with the standard conditions of a supervision order, the court must not release the offender unless satisfied that a supervision order will ensure an adequate degree of protection to the community.[22] When considering whether a supervision order would adequately protect the community, it is necessary to take into account any conditions which can be placed on a supervision order so as to ensure the adequate protection of the community, the rehabilitation of the respondent and his care and treatment. As was observed by Hall J in Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 at [107], there is no requirement that:

    there be no risk of reoffending. Such a requirement could never be met and the effect would be that no person to whom the Act applies would ever be released. The requirement is that any risk be reduced to a reasonably acceptable level. This will always require a careful weighing of the nature and degree of risk and the context of methods for the management and reduction of that risk.

    [22] The State of Western Australia v ACJ [2021] WASC 219 [38].

14. Counsel for the State submitted that the court should also have regard to the further matter of principle from Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 at [86]:[23]

    Of course, if, as was not the case here, his Honour had been satisfied that he had before him all relevant evidence concerning possible conditions which might be imposed on a supervision order, but was simply left in doubt as to whether such an order would adequately protect the community, then, having regard to s 17(2), it would have been necessary for him to have made a continuing detention order.

    [23] State's outline of submissions filed 13 March 2025, par 107. I note that the Court of Appeal in Director of Public Prosecutions (WA) v Williams considered s 17(2) of the Dangerous Sexual Offenders Act, a section equivalent to s 55(3) of the High Risk Serious Offenders Act.

15. In The State of Western Australia v Gorham [No 2] [2022] WASC 351 at [34] Archer J articulated the following nine factors that were, in effect, identified by Fiannaca J in Director of Public Prosecutions for Western Australia v Hart as relevant to the assessment of whether a respondent will substantially comply with the standard conditions (the State further noting that Fiannaca J had also indicated that such factors would include the respondent's history of compliance and non-compliance):

    (1)the respondent's attitude to the conditions of the supervision (in particular whether the respondent is likely to deliberately flout the conditions);

    (2)the respondent's capacity to comply with the conditions;

    (3)what measures there are in place to ensure that the respondent would substantially comply;

    (4)the relative importance of any breach that might occur, in terms of the impact it would have on the practical effect of the supervision order in achieving the objects of the High Risk Serious Offenders Act;

    (5)the respondent's motivation to remain offence free and in the community;

    (6)any willing participation in a sex offender treatment program;

    (7)abstinence from drugs;

    (8)conduct while in prison; and

    (9)demonstrated gains in treatment, self-management and life skills.

Evidence adduced at the contravention hearing

Book of materials

1. At the hearing of this application, I received into evidence a book of materials in two volumes prepared by the State.[24]

   [24] ts 388 (17 March 2025).

2. The first volume was dated 13 January 2025,[25] and contained a copy of the State's contravention application; the respondent's criminal record; a copy of the court's reasons for decision delivered on 27 April 2023 for finding that the respondent remained a high risk serious offender, and 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: The State of Western Australia v Warmdean [No 4]; various Department of Justice prison records; medical records; a Parole Review Report dated 4 April 2024; a Parole Assessment Report prepared by Roxanne Stockton dated 5 April 2024; papers prepared to secure a warrant under s 51 of the High Risk Serious Offenders Act; materials concerning the alleged contraventions, including prosecution notices, statements of material facts, transcripts of hearings before the Magistrates Court; and historical assessment reports and documents, that is, the psychiatric report of Dr Wojnarowska dated 19 March 2023.

   [25] Exhibit A.

1. The second was dated 13 March 2025,[26] and contained particulars of contravention allegations (which summary was prepared on behalf of the State); and the three reports prepared for the contravention hearing being the HRSO treatment progress report of Dr Sarah Barbas dated 17 February 2025, the psychiatric report of Dr Wojnarowska dated 4 March 2025, and the performance report of Beau Moulton dated 11 March 2025.

Witnesses called by the State

[26] Exhibit B.

1. At the contravention hearing, the State called three witnesses, and their reports were received into evidence (which reports were incorporated in the second volume of the book of materials). They were:

   (a)Dr Wojnarowska, the author of the psychiatric report dated 4 March 2025;

   (b)Dr Barbas, the author of the treatment progress report dated 17 February 2025; and

   (c)Mr Moulton, the author of the performance report dated 11 March 2025.

Evidence of Dr Wojnarowska - psychiatric report

1. As is recorded at [10] above, on 17 October 2024 the respondent was ordered to undergo an examination by a qualified expert, namely psychiatrist Dr Wojnarowska, for the purposes of preparing a report as required by s 74 of the High Risk Serious Offenders Act to be used at the hearing of the contravention application.[27]

   [27] Order 2 of the orders made on 17 October 2024.

2. The order was made in circumstances where Dr Wojnarowska had, among other things, prepared a report dated 19 March 2023 for the restriction order application hearing concerning the respondent.[28] I had considered Dr Wojnarowska's 2023 report in my earlier decision, as was recorded in The State of Western Australia v Warmdean [No 4] at [80] ‑ [120]. I also note that Dr Wojnarowska assessed the respondent in 2015, 2018, 2019, 2021 and 2023.[29]

   [28] Exhibit A, pages 393 - 407.

   [29] State's outline of submissions filed 13 March 2025, par 24; The State of Western Australia v Warmdean [8], [35] (references to the 2015 and 2018 reports); The State of Western Australia v Warmdean [No 2] [12] (reference to the 2019 report); The State of Western Australia v Warmdean [No 3] [36(1)] (reference to the 2021 report); and The State of Western Australia v Warmdean [No 4] [9], [26(a)] (reference to the 2023 report).

3. Set out below is a summary of Dr Wojnarowska's evidence. It is not intended to be a complete account.

4. In Dr Wojnarowska's latest report, prepared for the purposes of this contravention hearing, Dr Wojnarowska among other things recorded that the respondent had been assessed by a neuropsychologist as having some cognitive deficits associated with the presence of Foetal Alcohol Spectrum Disorder (FASD); had been granted funding from the National Disability Insurance Scheme (NDIS); and does not however fulfil the criteria for intellectual disability.[30] Dr Wojnarowska further recorded her opinion that these matters were of relevance to the respondent's treatment, prognosis, and management in the community if released in the future.[31]

   [30] Exhibit B, page 427 (Psychiatric report by Dr Wojnarowska dated 4 March 2025, par 5).

   [31] Exhibit B, page 427 (Psychiatric report by Dr Wojnarowska dated 4 March 2025, par 5).

5. Dr Wojnarowska further recorded in her report her credentials and professional background (I accept that Dr Wojnarowska was qualified to give expert evidence); that it had been explained to the respondent that the interview with Dr Wojnarowska was not confidential; and the information sources upon which Dr Wojnarowska had relied in preparing her report.

6. In her report, Dr Wojnarowska summarised the respondent's NDIS plan; the respondent's history of offending; the respondent's history of past contraventions while subject to a supervision order; the respondent's recent contraventions while subject to a supervision order in the period 4 July 2023 to 8 January 2024; the respondent's behaviour in prison since his return on 27 November 2023; some of the observations made by Dr Barbas recorded in the respondent's treatment progress report; the respondent's account of his time in the community; the respondent's mental state examination; the respondent's psychiatric diagnoses; her assessment of the respondent's risk and likely risk scenario; and her opinion and recommendations in respect of the respondent, particularly with respect to supervision and treatment.

The respondent's offending history and previous contraventions

1. In her report, Dr Wojnarowska summarised the respondent's history of offending.[32] For present purposes I note that the respondent's history of offending has been recorded in the previous decisions of this court. 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. As to the occasions of serious sexual offending and serious sexually motivated offending, they are described at [46] to [47] in The State of Western Australia v Warmdean[No 4].

   [32] Exhibit B, pages 429 - 430 (Psychiatric report by Dr Wojnarowska dated 4 March 2025, pars 23 - 30).

2. In summary, I note that the respondent has six convictions for sexual offences, four of which were serious offences. His offending commenced in his adolescence and persisted into adulthood.

3. Dr Wojnarowska also in her most recent report summarised the respondent's previous contraventions of a supervision order.[33] For present purposes I note that the respondent breached the supervision order to which he had been made subject upon his release on 20 January 2021 on 13 occasions during the period of 4 February 2021 to 9 March 2021. In The State of Western Australia v Warmdean[No 3] at [78] to [100], Derrick J recorded the facts of the contravention offences.

The respondent's account of the alleged recent contraventions

[33] Exhibit B, pages 430 - 431 (Psychiatric report by Dr Wojnarowska dated 4 March 2025, pars 32 - 34).

1. In her report, Dr Wojnarowska summarised the circumstances of the respondent's alleged contraventions of the supervision order subject to which the respondent had been released with effect from 22 May 2023. Dr Wojnarowska's summary is largely consistent with my findings set out below.[34]

   [34] See [139] to [179].

2. As to the respondent's account of the alleged recent contraventions, among other things Dr Wojnarowska recorded that:

   (a)in the context of engaging in relationships with adult females while in the community, the respondent reported that he had breached conditions of his supervision order by having contact with the children of one of his partners;[35]

   (b)the respondent reported that he had breached his order by having an online relationship with one female and a 'one night stand' with another;[36]

   (c)in the context of engaging with family, the respondent reported that he had breached conditions of his supervision order by having contact with the children within his family, in circumstances where there were 'lots of kids' aged between four and 14;[37]

   (d)the respondent acknowledged alcohol to be his biggest problem, and that he had been caught in breach of his conditions concerning alcohol 'more than 5 times';[38]

   (e)the respondent reported that while intoxicated, he had removed his Global Positioning System (GPS) electronic monitoring device and had absconded for a short period until he was arrested. He also reported that at the time he was aware of the consequences of breaching his order but added 'because I was drunk, I didn't care';[39] and

   (f)the respondent admitted that he had used speed and cannabis whilst in the community, reporting that at that time he had been stressed because of the condition relating to having no contact with the children in his family.[40]

   [35] Exhibit B, page 434 (Psychiatric report by Dr Wojnarowska dated 4 March 2025, par 54).

   [36] Exhibit B, page 434 (Psychiatric report by Dr Wojnarowska dated 4 March 2025, par 54).

   [37] Exhibit B, page 434 (Psychiatric report by Dr Wojnarowska dated 4 March 2025, par 55).

   [38] Exhibit B, page 434 (Psychiatric report by Dr Wojnarowska dated 4 March 2025, par 56).

   [39] Exhibit B, page 434 (Psychiatric report by Dr Wojnarowska dated 4 March 2025, par 56).

   [40] Exhibit B, page 434 (Psychiatric report by Dr Wojnarowska dated 4 March 2025, par 57).

3. Dr Wojnarowska further recorded that when questioned about his offending, the respondent appeared to be remorseful and expressed shame and regret for his behaviour; indicated that he has never wanted to harm any of his victims and at that time he had struggled to control his sexual drive; and when reminded of what he had said during Dr Wojnarawska's previous interview with him (that is, that he was thinking about killing his last victim, the 60 year old woman, to conceal his crime),[41] said that he could not remember thinking about it or saying it to Dr Wojnarowska during the interview. He further reported that he did not perceive himself to be a violent man and reiterated that he would never harm a child. Dr Wojnarowska recorded that the respondent said that he had never targeted children and the 15 year old victim 'was there' and the offence was purely opportunistic.[42]

   [41] The State of Western Australia v Warmdean [No 4] [95].

   [42] Exhibit B, pages 434 - 435 (Psychiatric report by Dr Wojnarowska dated 4 March 2025, par 60).

4. In the course of cross-examination, Dr Wojnarowska gave evidence to the effect that to a significant extent, she did attribute the contraventions of the supervision order to the respondent's impulsivity drawn from his underlying FASD.[43]

The respondent's account of his time in the community

[43] ts 394 (17 March 2025).

1. As to support, Dr Wojnarowska recorded that the respondent had confirmed that he had been supported with a NDIS plan while in the community which included assistance from support workers on a 24‑hour basis for six months. After the six months, the respondent reported receiving assistance from his support workers in the daytime, and being left responsible for taking care of himself at night.[44]

   [44] Exhibit B, page 433 (Psychiatric report by Dr Wojnarowska dated 4 March 2025, par 52).

2. As to familial support, Dr Wojnarowska recorded that the respondent confirmed he was no longer in contact with his sister or stepmother after experiencing conflict with them. The respondent also reported that his main support were his brothers and support workers from Plan and Grow.[45]

   [45] Exhibit B, page 434 (Psychiatric report by Dr Wojnarowska dated 4 March 2025, par 53).

3. As to his supports while in the community, it is also noteworthy that the respondent reported to Dr Wojnarowska that his Plan and Grow support workers were 'like my family'.[46]

   [46] Exhibit B, page 440 (Psychiatric report by Dr Wojnarowska dated 4 March 2025, par 96).

4. As to relationships, Dr Wojnarowksa recorded that the respondent was involved in two relationships with adult females while in the community. Dr Wojnarowksa recorded that the respondent was also involved in an 'online sexual' relationship and in a 'one night stand', for which the respondent had received fines. Dr Wojnarowska reported that the respondent had acknowledged this constituted a breach of his supervision order, but expressed frustration that he had been charged for 'normal stuff'.[47]

   [47] Exhibit B, page 434 (Psychiatric report by Dr Wojnarowska dated 4 March 2025, par 54).

5. As to sexual drive, Dr Wojnarowska recorded that the respondent reported that he was now much older and 'can fully control it'. Further, that the respondent denied any interest in sexual violence and denied experiencing violent sexual thoughts. The respondent also reported that he had not been watching pornography and when provided with some pornographic magazines in the community, he felt he had lost interest in them.[48]

   [48] Exhibit B, page 434 (Psychiatric report by Dr Wojnarowska dated 4 March 2025, par 59).

6. As to employment, the respondent reported that he had been working three days a week at a fencing company; that he had enjoyed the work; that he considered himself to have been a reliable worker; and that he had managed to save the amount of $4,000.[49]

   [49] Exhibit B, page 433 (Psychiatric report by Dr Wojnarowska dated 4 March 2025, par 52).

7. Dr Wojnarowska also recorded that the respondent had engaged in psychological intervention in the community.[50]

Future plans

[50] Exhibit B, page 435 (Psychiatric report by Dr Wojnarowska dated 4 March 2025, par 61).

1. Dr Wojnarowska recorded that when asked about his future plans, the respondent had confirmed that he has accommodation in the community; would like to return to work for the same company in fencing; and would also like 'to do some cooking, and study business at TAFE'.[51]

   [51] Exhibit B, page 435 (Psychiatric report by Dr Wojnarowska dated 4 March 2025, par 62).

2. Dr Wojnarowska recorded that alcohol dependence was also discussed, and that the respondent appeared to have an insight to the link between alcohol and violence in his case; accepted that he could not deal with this problem on his own; expressed a willingness to be prescribed medication to assist with alcohol cravings in the future; and understood that drinking alcohol was a risk factor for future reoffending, having said, 'I need to stay away from drinking'.[52]

Mental state examination

[52] Exhibit B, page 435 (Psychiatric report by Dr Wojnarowska dated 4 March 2025, par 63).

1. As to the respondent's mental state, among other things, Dr Wojnarowska recorded in her report that the respondent showed no signs of formal thought disorder; that the respondent's thoughts were properly organised and coherent; that the respondent had no difficulty attending to the lengthy interview but struggled with expressing himself; that the respondent's speech consisted of short answers; that there was no evidence of impression management; and that the respondent appeared to be sincere in his answers.[53]

Psychiatric diagnoses

[53] Exhibit B, page 435 (Psychiatric report by Dr Wojnarowska dated 4 March 2025, par 65).

1. Dr Wojnarowska recorded that there were no changes in her diagnostic opinion as previously expressed. That is:[54]

   [The respondent] fulfills the diagnostic criteria for Antisocial Personality Disorder and Substance Use Disorder, currently in remission. He also has a diagnosis of FASD which is highly relevant in assessment of [the respondent's] treatment needs and his ability to comply with management in the community.

   [54] Exhibit B, page 436 (Psychiatric report by Dr Wojnarowska dated 4 March 2025, par 67); see also The State of Western Australia v Warmdean [No 4] [97].

2. As to why Dr Wojnarowska considered the respondent's diagnosis of FASD to be highly relevant in the assessment of his treatment needs and his ability to comply with management in the community, Dr Wojnarowska's evidence was as follows:[55]

   FASD is a syndrome that is related to exposure to alcohol in utero, and manifests itself in individuals differently depending on the time of the exposure and the levels of toxin.  In [the respondent's] case, it is well established that it had a detrimental effect on his cognitive functioning, specifically on his frontal lobe, which manifests itself as high impulsivity, inability to plan, major problems with attention and concentration.  This is viewed as a permanent state with a limited prospect in relation to rehabilitation.  So therefore, the area specifically of impulsivity in my view is likely to persist, irrespective of the treatment – pharmacological or psychological.  It can be modulated to some extent, but we will be still expecting [the respondent] to be highly impulsive in the coming years.

   [55] ts 389 - 390 (17 March 2025).

3. As to whether impulsivity might decrease with age, Dr Wojnarowska's evidence was as follows:[56]

   [I]n persons who don't have FASD, the male brain should mature by the age of 30.  The female brain matures by the age of 20.  So there is that significant difference.  In terms of FASD, because we are expecting some organic changes, by that, I don't mean that they are visible on any scans, but we do know that this is organically driven impairment.  Therefore, the – the decrease in impulsivity is not likely to occur within that period of time that we would expect.  Nevertheless, it's going to decrease with age.  But when, I am not aware of any research that would tell us exactly what we can expect, because FASD, as I said, affects different people to a different level.  So it would be quite difficult to have a reliable data.

Risk assessment - update

[56] ts 399 (17 March 2025).

1. Dr Wojnarowska considered again the risk posed by the respondent, particularly so as to characterise the risk that the respondent will commit sexual violence in the future, and to identify the steps that could be taken to minimise risk.[57] As was recorded in her report, in undertaking the risk assessment Dr Wojnarowska used in addition to her clinical assessment, three assessment tools, namely the Static‑99R; the Hare Psychopathy Checklist-Revised, second edition, 2003 (PCL‑R); and the Risk for Sexual Violence Protocol (or RSVP).[58] The same tools were used as part of Dr Wojnarowska's assessment of the respondent in 2023, and the tools were described in The State of Western Australia v Warmdean [No 4] at [101], [103] and [105].

   [57] Exhibit B, page 436 (Psychiatric report by Dr Wojnarowska dated 4 March 2025, par 68).

   [58] Exhibit B, pages 436 - 440 (Psychiatric report by Dr Wojnarowska dated 4 March 2025, pars 68 - 97).

2. In the report prepared for the purposes of this contravention hearing, Dr Wojnarowska recorded that the respondent's Static‑99R and PCL-R scores were unchanged, in that:

   (a)the respondent's score of eight remained in Level IVb, or the 'well above average risk' range per Static-99R;[59] and

   (b)the respondent's score indicated a low to moderate level of psychopathy, not meeting the threshold for Psychopathic Disorder under the PCL-R.[60]

   [59] Exhibit B, page 437 (Psychiatric report by Dr Wojnarowska dated 4 March 2025, par 73).

   [60] Exhibit B, page 437 (Psychiatric report by Dr Wojnarowska dated 4 March 2025, par 75).

3. In her report, Dr Wojnarowska provided more extensive comment in respect of the respondent's results using the clinical judgment framework of the RSVP.[61] She recorded that she had observed various risk factors to be present including chronicity of sexual violence; escalation in offending (frequency/severity of diversity); physical coercion in sexual violence; problems with self awareness (which factor she considered to be partially present); problems with stress and coping; problems resulting from child abuse; sexual deviance (requiring further exploration and treatment, including the respondent's interest in violent pornography[62]); substance use problem; violent or suicidal ideations; problems with intimate relationships; problems with non-intimate relationships; problems with employment (which factor she considered to be partially present); problems with planning; problems with treatment; and problems with supervision (which factor she also considered to be partially present).

   [61] Exhibit B, pages 437 - 440 (Psychiatric report by Dr Wojnarowska dated 4 March 2025, pars 77 - 97).

   [62] ts 390 - 391 (17 March 2025).

4. In the course of cross-examination, Dr Wojnarowska accepted that the respondent had matured in that he was now prepared to take more responsibility for his offending, and recorded that the respondent had expressed what Dr Wojnarowska considered to be a very genuine concern about the possibility of him relapsing into drug and alcohol use.[63] Further, Dr Wojnarowska accepted that there is a greater understanding now than before as to the implications of breach and the deterrent effect of breaches of a supervision order, and she characterised these changes as the respondent 'developing insight'.[64]

Risk scenario

[63] ts 396 (17 March 2025).

[64] ts 396 (17 March 2025).

1. In her report, Dr Wojnarowska outlined the following risk scenarios specific to the respondent:[65]

   98. [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 or physically harm her.

   99.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 alcohol 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.

   100.He is likely [then] 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.

   101.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.

   102.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.

   103.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.

   [65] Exhibit B, pages 440 - 441 (Psychiatric report by Dr Wojnarowska dated 4 March 2025, pars 98 - 103).

2. As to the respondent's use of illicit substances, Dr Wojnarowska gave evidence to the effect that the respondent is also vulnerable to his environment in the sense that he is unable to exercise peer refusal that he has been taught during psychological treatment; that the respondent's positive test for Buprenorphine in January of this year while in detention suggests that the respondent continues to crave the highs that are associated with Buprenorphine and any other substances; and that the respondent had admitted to her that the cravings are still present.[66]

   [66] ts 391 (17 March 2025).

3. Further, Dr Wojnarowska accepted that what occurred on 27 November 2023 (described at [176] and [177] below), was a very risky scenario and consistent with the respondent having entered into his offending cycle.[67]

Opinions and recommendations

[67] ts 392 (17 March 2025).

1. Having applied and considered the results of the Static‑99R, PCL‑R and RSVP assessment tools and her clinical assessment, Dr Wojnarowska recorded at paragraphs 104 to 111 of her report her opinion and recommendations as to the risk posed by the respondent, his future supervision and his treatment.[68]

   [68] Exhibit B, pages 441 - 442 (Psychiatric report by Dr Wojnarowska dated 4 March 2025, pars 104 - 111).

2. Dr Wojnarowska opined that the respondent's risk of reoffending had not changed since her last assessment. She recorded that she considered the respondent to be at high risk of serious sexual reoffending if not subject to a restriction order; that the respondent's relatively short period of time in the community did not imply otherwise; and that she recommended that if the respondent was placed on a supervision order, that the duration should be of no less than 10 years.

3. Dr Wojnarowska further opined that the respondent's risk could be managed in the community and that certain conditions of his supervision order should be amended. Specifically, she supported the recommendation of providing the respondent with access to hard copy adult material approved by his Community Corrections Officer and providing the respondent access to sex workers who have been approved by his Senior Community Corrections Officer. She expressed the view that the respondent's risk could be managed in the community while accepting that the accommodation available to the respondent upon release had a number of red flags, including proximity to vulnerable women and children.[69]

   [69] ts 393 (17 March 2025).

4. Dr Wojnarowska also supported the recommendation that the respondent be assisted in applying for contact approval with his family so that he may contact his family members including children, with adult supervision, but stipulated this should be contingent on the respondent abstaining from alcohol and illicit substances. Dr Wojnarowska recorded her opinion that this would assist the respondent's feelings of loneliness. Dr Wojnarowska cautioned that the respondent's cognitive deficits meant that the process of application was daunting to the respondent and that the respondent tended to misinterpret the conditions of the supervision order.[70]

   [70] Exhibit B, page 442 (Psychiatric report by Dr Wojnarowska dated 4 March 2025, par 107).

5. As to treatment, Dr Wojnarowska recommended that the respondent continue treatment with Escitalopram (prescribed for the treatment of depression and anxiety), and the dose be increased for the desired effect on the respondent's libido. In the course of her evidence, Dr Wojnarowska noted that the dosage required to have some impact on the respondent's libido was at least 30 milligrams.[71]

   [71] ts 393 - 394 (17 March 2025): exhibit B, page 442 (Psychiatric report by Dr Wojnarowska dated 4 March 2025, par 108).

6. Dr Wojnarowska also noted that treatment with Naltrexone to diminish cravings for alcohol had been discussed and that the respondent had expressed his willingness to comply with the same to remain offence free in the community.[72]

   [72] See also ts 395 (17 March 2025); exhibit B, page 442 (Psychiatric report by Dr Wojnarowska dated 4 March 2025, par 109).

7. As to psychological treatment, Dr Wojnarowska recommended the following:[73]

   Psychological treatment should be focused on offence specific treatment addressing his criminogenic needs including emotional management, communication and social deficits, self-esteem, childhood trauma and sexual interest. It is hopeful that once he can continue to develop his therapeutic relationship with his psychologist and be able to the emergence of factors that could potentially lead to his reoffending.

   [73] Exhibit B, page 442 (Psychiatric report by Dr Wojnarowska dated 4 March 2025, par 110).

8. As to treatment if the respondent were to become subject to a continuing detention order, the effect of Dr Wojnarowska's evidence was that while some psychological intervention counselling would assist, there would not be much to be gained through treatment as he would not be exposed to those situations that could be discussed in psychological counselling or addressed.[74]

   [74] ts 394 - 395, 397 (17 March 2025).

9. As to other support, Dr Wojnarowska recommended the following:[75]

   [The respondent] will require significant support if he is to be successfully reintegrated into the community. He has developed a good relationship with his service provider (Plan and Grow) and a request for their continued support should be made.

   [75] Exhibit B, page 442 (Psychiatric report by Dr Wojnarowska dated 4 March 2025, par 111). See also ts 395 (17 March 2025).

10. In the course of her evidence, Dr Wojnarowska confirmed that when she prepared her report, she had not been aware that Plan and Grow had withdrawn from the provision of services to the respondent.[76] Dr Wojnarowska gave evidence to the effect that the withdrawal was a significant development because the new provider was not known to the respondent, who has typically taken considerable amount of time to develop trusting relationships with staff designated to care for him.[77]

    [76] ts 391 (17 March 2025); exhibit B, pages 461, 464 (Performance report by Mr Moulton dated 11 March 2025, pages 19, 22).

    [77] ts 391 (17 March 2025).

11. Dr Wojnarowska also opined that it is potentially possible that the respondent would not be forthcoming should he experience problems, or not be able to divulge that information to the staff.[78] She also expressed some concern as to the reliability of his self‑report.[79]

Evidence of Dr Barbas - treatment progress report

[78] ts 391 - 392 (17 March 2025).

[79] ts 392 (17 March 2025).

1. Volume 2 of the book of materials include a treatment progress report dated 17 February 2025 completed by Dr Barbas, a senior clinical and forensic psychologist employed by the Department of Justice, within the Forensic Psychological Assessment Team. As was recorded by Dr Barbas at paragraphs 4 and 7 of her report, the report was prepared so as to provide a summary of the respondent's treatment since his last hearing under the High Risk Serious Offenders Act and the alleged contraventions, and the information contained was restricted to the provision of an update of information relevant to the respondent's intervention and treatment needs.

2. Dr Barbas' evidence was brief following the identification of her report. Set out below is a summary of Dr Barbas' evidence. Again, it is not intended to be a complete account.

3. In her report, Dr Barbas included findings concerning prison behaviour; the respondent's physical and mental health; his treatment history; his treatment progress; his presentation during Dr Barbas' assessment; and his account of his treatment progress.

4. As to prison behaviour, while reported as having been positive, it was noted that the respondent had been subject to six urinalysis tests and had returned one positive (unmitigated) result for Burenorphine on 1 January 2025.[80]

   [80] Exhibit B, pages 416, 424 (Treatment progress report by Dr Barbas dated 17 February 2025, pars 10, 47).

5. As to treatment progress, Dr Barbas recorded that the respondent had engaged in 12 of 17 scheduled psychological intervention sessions since his last hearing under the High Risk Serious Offenders Act, eight in the community and four while in custody. Of the five missed sessions, three were missed due to the respondent being remanded in custody.[81]

   [81] Exhibit B, page 418 (Treatment progress report by Dr Barbas dated 17 February 2025, par 20).

6. Dr Barbas recorded that the respondent's psychologist, Julia Morrison (a Senior Counselling Psychologist in the Forensic Psychological Intervention Team), had reported that the respondent has generally engaged well in intervention targeted towards addressing his substance use, peer refusal skills, coping, development of healthy relationships, consent and sexual health; and had expressed the view that the respondent appeared more settled while incarcerated due to having employment, limited access to substances, proximity to peers and family, and access to his basic needs.[82]

   [82] Exhibit B, page 418 (Treatment progress report by Dr Barbas dated 17 February 2025, par 20).

7. She recorded that Ms Morrison had also reported that over the course of treatment, the respondent had continued to develop insight into his substance use being problematic, although he reported variability in his motivation to remain abstinent when in the community; that Ms Morrison had expressed the belief that the respondent's risk of substance use in the community remains high and that he appears to demonstrate an awareness of such; and that Ms Morrison had reported that the respondent had demonstrated an awareness of his alcohol use as increasing his sex drive and use of pornography which ultimately led to an increased risk of re‑offending.[83] It was recorded that Ms Morrison had also reported that the respondent lacked access to prosocial supports in the community, and that many of his peers and family engaged in anti-social behaviours that the respondent continually struggled to refuse to adopt. Further, that the respondent had developed a strong connection with his support workers (Plan and Grow) while in the community and that he appeared most settled while supported by them.[84]

   [83] Exhibit B, page 418 (Treatment progress report by Dr Barbas dated 17 February 2025, par 21).

   [84] Exhibit B, page 418 (Treatment progress report by Dr Barbas dated 17 February 2025, par 22).

8. As to the respondent's treatment progress, Dr Barbas recorded as follows:[85]

   [The respondent] has a history of involvement with the criminal justice system that began as a juvenile and has persisted through to adulthood. He has been incarcerated for most of his adult life for sexual and violent offences that have occurred in the context of significant substance use. [The respondent] presents as a young, institutionalised man who has received a significant amount of treatment, including involvement with the NDIS, programmatic intervention and significant periods of psychological intervention spanning across both juvenile and adult custodial settings. While [the respondent] has consistently engaged in treatment to the best of his ability and made some gains, his psychosocial profile reflective of responsivity issues associated with his moderate intellectual disability, social deficits and FASD continues to limit his ability to make substantial treatment gains. He therefore continues to present with outstanding criminogenic treatment needs associated with sexual self-regulation, pornography use, impulsivity, poor problem-solving, limited social support, interpersonal relationship skills, antisocial attitudes, peer refusal, emotional regulation, risk management, and substance use.

   [85] Exhibit B, page 422 (Treatment progress report by Dr Barbas dated 17 February 2025, par 41).

9. Dr Barbas also recorded in her report a number of recommendations for further intervention for the respondent, guided by the type of order imposed, noting that the respondent continued to engage well in individual psychological intervention with Ms Morrison and had self-reported the benefits of that intervention.[86]

   [86] Exhibit B, page 424 (Treatment progress report by Dr Barbas dated 17 February 2025, par 48).

10. Dr Barbas recorded that if the respondent was placed on a continuing detention order, she anticipated that treatment would continue infrequently (that is, monthly) and ongoing welfare-based support would be offered until closer to the next restriction review. She noted that further gains remained unlikely in a custodial setting given, among other things, an inability to practically apply learned skills.[87]

    [87] Exhibit B, page 424 (Treatment progress report by Dr Barbas dated 17 February 2025, par 49).

11. Dr Barbas expanded upon the above, noting Ms Morrison's opinion that ongoing weekly intervention is not required for the respondent, given that a custodial environment is not conducive to further treatment gains. If the respondent was to be placed on a continuing detention order, it was noted that Ms Morrison would likely provide monthly intervention to continue their therapeutic relationship, which intervention may increase in the lead-up to the respondent's next hearing in preparation for a potential release to the community at that time.[88]

    [88] ts 401 (17 March 2025).

12. Dr Barbas also observed that the respondent would benefit from further engagement in voluntary substance use programs and vocational interests within the custodial setting, such as further studies in business. She opined that every effort should be made to assist the respondent to begin to develop prosocial supports and to foster his interest in recreational activities such as exercising, rugby and football pursuits.[89]

    [89] Exhibit B, page 424 (Treatment progress report by Dr Barbas dated 17 February 2025, par 49).

13. Dr Barbas opined that if the respondent was placed on a supervision order:[90]

    [The respondent] would benefit significantly from involvement with culturally safe support services, including a mentor and substance use counselling to assist him with practical support in avoiding high risk situations in the community, and providing him with a sense of connectedness to his country, culture and community. A key component to support [the respondent] toward reintegration will be the development of a plan that advocates for multidisciplinary involvement of all external agencies engaged in his care. Specifically, future treatment, management and support should occur in collaboration with all relevant agencies including his treating psychologist Ms Morrison, NDIS, Community Offender Monitoring Unit, and other support services. This is especially important in the context of [the respondent's] tendency to present inconsistent information across varying interpersonal interactions. It is important that multidisciplinary support is delivered in a responsive manner that is repetitive and provides opportunities for regular prompting when required, fact checking, and clear boundary setting. Reinforcement of his conditions, preferably in the presence of his support workers, on a regular basis will assist to mitigate [the respondent's] impulsivity and consolidate involved parties understanding of his restrictions. Intervention with [Forensic Psychological Intervention Team] is recommended as one component of the care team with a primary focus on providing [the respondent] with support as he adjusts to the community and continues to establish positive working relationships with the multidisciplinary care team. Treatment is also likely to focus on further developing his trust within the therapeutic relationship, motivation for abstaining from substance use, monitoring his coping, medication compliance, problem solving and emotion regulation with a particular focus on reducing idle time, proximity to antisocial peers, and pornography use. It is further recommended that [the respondent] is supported to obtain employment, either paid or voluntary, to assist him to develop a sense of purpose, opportunities for pro-social support and to reduce idle time in the community. In a similar capacity, [the respondent's] interest in arts and cooking should be supported to further facilitate a sense of connectedness to country and a sense of purpose, alongside ongoing support for independent living. Similarly, efforts should be made to support [the respondent's] interest in leisure pursuits inclusive of exercising at the gym, rugby, or football as an appropriate platform to assist him to continue to develop prosocial peer relationships.

Evidence of Mr Moulton - performance report

[90] Exhibit B, pages 424 - 425 (Treatment progress report by Dr Barbas dated 17 February 2025, par 50).

1. An adult community corrections performance report was prepared by Mr Moulton, a Senior Community Corrections Officer within the Community Offender Monitoring Unit of the Department of Justice, and was endorsed by Shae Hazzard, a team leader within the Community Offender Monitoring Unit, and Sarah Turner, the acting director of the Community Offender Monitoring Unit.[91]

   [91] Exhibit B, pages 443 - 466.

2. Mr Moulton recorded in his report that in its preparation, he had relied upon visits with the respondent, most recently on 27 February 2025; the Total Offender Management System prison database; the psychiatric report prepared by Dr Wojnarowska dated 4 March 2025, and his engagement with Dr Wojnarowska; and the treatment progress report prepared by Dr Barbas dated 17 February 2025, and his engagement with her. He also recorded that he had liaised with the Western Australia Police Force; the Serious Offender Enforcement Squad; the High Risk Serious Offender Team; the respondent's plenary guardian at the Office of the Public Advocate; Innovative Support Australia (a disability service provider); a specialist support coordinator from Integrated Support Solutions WA; a positive behaviour support practitioner from YesAbility (a registered NDIS provider); a senior occupational therapist from the Rehabilitation Collective; the National Disability Insurance Agency; the Victim Engagement Unit; and the North Metropolitan Community Alcohol and Drug Service.

1. Mr Moulton described in his report its purpose, noting that it had been prepared to outline the respondent's performance on the supervision order; his plan if re-released on the supervision order or subject to an amended supervision order; and to allow for consideration of potential conditions if the respondent was to return to the community upon resolution of the contravention hearing (to be read with the reports of Dr Wojnarowska and Dr Barbas summarised above).

2. Mr Moulton among other things described the respondent's performance when most recently released into the community subject to the conditions of the supervision order; the contraventions which resulted in formal charges; the contraventions which resulted in verbal or written warnings; the respondent's response to supervision; the respondent's engagement in programmatic intervention; the NDIS funded supports and accommodation that was made available to him upon his release into the community from 22 May 2023 until his return to custody; the respondent's engagement with females, including intimate relationships and casual contact; the respondent's pornography use, sexual thinking and behaviours, and prescribed anti‑libidinal medication; the results of urinalysis testing and the respondent's substance use; the respondent's family and other community supports; and the respondent's mental health, including his history of suicidal ideation.

3. Mr Moulton also addressed in his report the respondent's performance while in custody including the respondent's prison conduct; the decision of the Prisoner's Review Board on 23 April 2024; the results of urinalysis testing; and the respondent's engagement in programmatic intervention.

4. Mr Moulton described in some detail in his report the proposed community supervision plan for the respondent should he be released into the community, including the available NDIS funded supports and accommodation; available support networks and their limitations; employment options; victim issues; and reporting arrangements to the WA Police and the Serious Offender Enforcement Squad.

5. Drawing from the report of and his interactions with Dr Wojnarowska, Mr Moulton also described in his report the behaviours of the respondent that required management, and the strategies suggested to manage his offending behaviours. The strategies promoted included strategies which concerned access to pornography and sexual services, contact with family, anti-libidinal medication, substance use, and NDIS supports.

6. As Mr Moulton had drawn from the reports of and his discussions with Dr Wojnarowska and Dr Barbas, it is not surprising that there is considerable duplication of information in the reports. Summarised below are matters described by Mr Moulton in his report and in the course of his evidence. Again, it is not intended to be a complete account of either.

Current situation and progress while subject to the supervision order

Response to supervision

1. Among other things, Mr Moulton recorded that the respondent's engagement with the Senior Community Corrections Officers appeared to have been appropriate throughout his time in the community, with no issues concerning hostility or aggression having been noted, and that the respondent had actively engaged in discussions during these sessions.[92]

Engagement in programmatic intervention

[92] Exhibit B, pages 448 - 449 (Performance report by Mr Moulton dated 11 March 2025, pages 6 - 7).

1. Mr Moulton recorded the respondent's involvement in individual intervention, facilitated by Ms Morrison since 2019.

2. Mr Moulton recorded that while additional supports to address substance use concerns in the community had been explored, such as engagement with Yorgum Healing Services Aboriginal Corporation, no engagement progressed as the organisation could not accept the referral due to the respondent being in receipt of NDIS funding.[93]

NDIS funded supports and accommodation

[93] Exhibit B, page 449 (Performance report by Mr Moulton dated 11 March 2025, page 7).

1. Mr Moulton recorded that the respondent had been engaged with Plan and Grow which had provided the respondent with support for the entirety of his time in the community.

2. Mr Moulton also recorded that the respondent had acknowledged he often tried to separate himself from support workers while in public to allow for the unsupervised engagement with peers, which often led to contravening behaviours such as alcohol use.[94] Mr Moulton further recorded that there had been instances where the respondent had expressly told support workers to leave him alone to allow for his engagement with peers; and that there had been other instances where support workers had attempted to counsel the respondent regarding conditions of the supervision order.[95]

   [94] Exhibit B, page 450 (Performance report by Mr Moulton dated 11 March 2025, page 8).

   [95] Exhibit B, page 450 (Performance report by Mr Moulton dated 11 March 2025, page 8).

3. Mr Moulton recorded that on 15 December 2023, Plan and Grow had advised the Community Offender Monitoring Unit that support for the respondent was being terminated. The cited reasons were that their service was now at a financial loss as they had remained liable to pay rent on the respondent's accommodation upon the respondent absconding then being returned to custody; concerns were held with respect to the respondent's ongoing non‑compliance with his supervision order; and staff safety.[96]

Pornography use, sexual thinking and behaviours

[96] Exhibit B, pages 449 - 450 (Performance report by Mr Moulton dated 11 March 2025, pages 7 - 8).

1. Mr Moulton recorded that the respondent had self-reported limited sexual preoccupation in the initial stages of his return to the community then proceeded to detail the respondent's sexual thinking, behaviours and pornography use while in the community.

2. It was recorded that the respondent had acknowledged masturbating on several occasions in a public toilet after becoming aroused by females in public; had acknowledged his desire and willingness to have sexual intercourse with a woman previously unknown to him after consuming alcohol with peers; and had acknowledged a desire to start a domestic relationship with a female. The respondent also was reported to have shared his view that he had limited outlets for sexual behaviours and attributed periods of increased sexual preoccupation to this. It was reported that the respondent had appeared to intimate an interest in engaging with paid sexual services shortly before his return to custody, and it was recorded that he had referenced the same interest to Mr Moulton.[97]

   [97] Exhibit B, pages 452 - 453 (Performance report by Mr Moulton dated 11 March 2025, pages 10 - 11).

3. As to pornography, the respondent was provided approval to access some pornographic material in July 2023 in the form of magazines, which he reportedly explained became boring over time. Mr Moulton recorded that the respondent continued to report an ongoing sexual interest in violent pornography, which the respondent reportedly continued to distance himself from, and that the respondent was of the view the interest was unlikely to dissipate in its entirety.[98] In the course of his evidence, Mr Moulton noted that the respondent last reported to him an interest in violent pornography in February 2025.[99]

Anti-libidinal medication

[98] Exhibit B, page 453 (Performance report by Mr Moulton dated 11 March 2025, page 11).

[99] ts 403 (17 March 2025).

1. It was recorded that the respondent had been prescribed Escitalopram as an anti‑libidinal measure from 22 May 2023, and that prison records indicate that he continues to be prescribed that medication.[100]

Urinalysis testing and substance use

[100] Exhibit B, page 454 (Performance report by Mr Moulton dated 11 March 2025, page 12).

1. Mr Moulton also recorded that exclusion zones had been imposed to limit the respondent's engagement with high risk situations, but that the respondent had shifted his attendance and engagement elsewhere.[101]

   [101] Exhibit B, pages 454 - 455 (Performance report by Mr Moulton dated 11 March 2025, pages 12 - 13).

2. Mr Moulton recorded the following as to the respondent's motivation to cease alcohol use:[102] 

   [The respondent] has articulated a fluctuating motivation to cease alcohol use, outside of the need to comply with HRSO SO conditions. He has acknowledged to the author that if he was in company of a peer who offered him alcohol, he would find it difficult to refuse. He suggested he would intend to avoid negative peers and spend more time with his family if released to the community, primarily his brothers, although it is noted HRSO SO contraventions and alcohol consumption has occurred in the presence of his younger brother. [The respondent] further suggested he would also provide greater disclosure to his family as to his conditions, believing if they were fully aware of his HRSO SO obligations they would not consume alcohol in his presence. [The respondent] further stated he would be willing to engage in drug and alcohol counselling in the community in additional to engagement with his [Forensic Psychological Intervention Team] psychologist and has also agreed to undergo Naltrexone treatment to manage alcohol use.

Family and other community supports

[102] Exhibit B, page 455 (Performance report by Mr Moulton dated 11 March 2025, page 13).

1. Mr Moulton noted the respondent's contravening behaviours largely occurred after tasks with his support workers had been completed for the day, when the respondent had spare time. While the respondent was provided approval to engage in other activities such as attending the gym, Mr Moulton reported no significant engagement in such activities. While the respondent was employed three days a week and reflected on this as a positive experience that provided him with a degree of structure, Mr Moulton reported that the respondent's employment appeared limited as a protective factor given the respondent would engage with peers outside of work hours. Mr Moulton also noted that while it was not clear whether the respondent's family members were outwardly protective, the respondent's younger brother had been present during the respondent's alcohol consumption and contravening behaviours, and the respondent had experienced conflict with his sister.[103]

Suicidal ideation and mental health

[103] Exhibit B, page 456 (Performance report by Mr Moulton dated 11 March 2025, page 14).

1. Mr Moulton recorded that Departmental records indicate previous instances of self-harm and suicidal ideation for the respondent dating back to early 2018. Mr Moulton reported that while on the supervision order, there had been two incidents involving hospital admissions where in the context of alcohol intoxication, the respondent had made remarks about self-harm. On 2 July 2024 the respondent reported his mental health to be currently stable. Mr Moulton noted that the respondent continued to be prescribed Escitalopram.[104]

Performance while in custody

[104] Exhibit B, pages 456 (Performance report by Mr Moulton dated 11 March 2025, page 14).

1. Mr Moulton recorded that as at the time of writing his report, the respondent's term of imprisonment had expired.

2. As to the respondent's prison conduct, Mr Moulton recorded there had been no formal adverse incident reports aside from returning a positive result on a urinalysis test for Buprenorphine. It was recorded that the respondent had acknowledged that he continued to have difficulties with peer refusal skills as he had decided to use the drug after being encouraged to do so by another prisoner.

3. Mr Moulton also noted that the respondent was denied parole on 23 April 2024 due to, among other things, having ongoing treatment needs in relation to substance use including alcohol; being an unacceptable risk to the safety of the community; and poor responses to prior community supervision orders.[105]

Proposed community supervision plan

Contact with the respondent

[105] Exhibit B, page 457 (Performance report by Mr Moulton dated 11 March 2025, page 15).

1. Mr Moulton reported that the respondent engaged appropriately, had appeared to be relatively forthcoming with information, and had acknowledged and discussed some of his challenges, which included peer refusal skills and alcohol consumption. Mr Moulton reported that the respondent also regularly referenced difficulties with certain conditions, particularly those related to contact with children.[106]

NDIS funded supports and accommodation

[106] Exhibit B, page 458 (Performance report by Mr Moulton dated 11 March 2025, page 16).

1. Mr Moulton recorded that the respondent would continue to receive funding from the NDIS upon his return to the community, and described the applicable step-down model. Mr Moulton acknowledged the respondent's current step-down funding model did not provide for 24 hours a day, seven days a week support for the entirety of the plan, also recording that the occupational therapist's assessment had been that the respondent did not need that level of support from a functional capacity perspective.[107]

   [107] Exhibit B, pages 458 - 459 (Performance report by Mr Moulton dated 11 March 2025, pages 16 - 17).

2. Mr Moulton recorded that Innovative Support Australia had been engaged to provide support to the respondent, and that accommodation had been secured for the respondent. Mr Moulton detailed the Desktop Spatial Analysis results for the secured accommodation.[108] While the respondent had met with Innovative Support Australia program managers, he would not meet with any allocated support workers before release into the community.[109]

Support networks

[108] Exhibit B, pages 459 - 460 (Performance report by Mr Moulton dated 11 March 2025, pages 17 - 18).

[109] ts 402 - 403 (17 March 2025).

1. Mr Moulton recorded that the respondent's NDIS funded supports would initially be unchanged; that the respondent would largely have unchanged family supports; and that the respondent expressed an interest in cultural activities, and wanted to explore traditional painting, music production, cooking and sporting activities. The respondent had reportedly been open in acknowledging that boredom and idle time had often contributed to his contravening behaviour.[110]

Employment options

[110] Exhibit B, pages 460 - 461 (Performance report by Mr Moulton dated 11 March 2025, pages 18 - 19).

1. Mr Moulton noted that the respondent would be in receipt of Centrelink benefits; that the respondent presented with some motivation to engage in employment including manual labour type roles, in undertaking business studies and eventually running his own catering business; and that the respondent's prior employment may no longer be available to the respondent as it had been sourced through his former disability services provider.[111]

Strategies to manage offending behaviours

[111] Exhibit B, page 461 (Performance report by Mr Moulton dated 11 March 2025, page 19).

1. Mr Moulton described in his report possible strategies to address specific areas of behaviour management, while noting that otherwise the strategies to manage the respondent's offending behaviours remained congruent with the previous community supervision assessments completed prior to release in May 2023 on the supervision order.

Access to pornography and sexual services

1. Mr Moulton repeated Dr Wojnarowska's recommendation that the respondent should be provided access to hard copy adult material approved by his Senior Community Corrections Officer, and that the respondent should be allowed to access sex workers approved by his Senior Community Corrections Officer.[112]

Contact with family

[112] Exhibit B, page 462 (Performance report by Mr Moulton dated 11 March 2025, page 20).

1. Mr Moulton referenced Dr Wojnarowska's recommendation that the respondent be allowed contact with family members including children, with adult supervision, contingent on the respondent continually abstaining from alcohol and illicit substances. Mr Moulton cautioned that a condition allowing contact with any child member of the family while under adult supervision would likely prove difficult to monitor and enforce, and suggested maintaining the respondent's condition to have no child contact without prior approval from the respondent's Senior Community Corrections Officer. As to the same, Mr Moulton recorded as follows:[113]

   Within the scope of the current conditions, the [Community Offending Monitoring Unit] could work with [the respondent] to develop a list of child family members he wishes to have contact with, identify their parent or guardian and conduct appropriate checks to ensure there are no particular risk concerns associated with [the respondent's] contact with these children. [The respondent] could then be provided with a written lawful instruction outlining a list of approved child family members he can have contact with, inclusive of the requirement for adult supervision, and assistance planning for these contacts including the location and duration of contacts will be addressed in supervision sessions with [the respondent], and then communicated to the wider Risk Management Team and Disability Support Teams involved with [the respondent].

Anti-libidinal medication

[113] Exhibit B, page 463 (Performance report by Mr Moulton dated 11 March 2025, page 21).

1. Mr Moulton repeated Dr Wojnarowska's recommendation that the respondent continue to be prescribed Escitalopram, which is used to treat depression and has the effect of lowering libido, with review to occur by Dr Peter Wynn Owen in the community.[114]

Substance use

[114] Exhibit B, page 463 (Performance report by Mr Moulton dated 11 March 2025, page 21).

1. Mr Moulton referred to Dr Wojnarowska's discussion with the respondent about the use of Naltrexone to diminish cravings for alcohol. The respondent had reportedly expressed his willingness to comply with the medication to assist in managing his alcohol use. Mr Moulton recorded that Dr Wojnarowska had noted this medication could not commence in custody and would need to commence upon the respondent's release to the community.[115]

   [115] Exhibit B, pages 463 - 464 (Performance report by Mr Moulton dated 11 March 2025, pages 21 - 22).

2. Mr Moulton further noted in his report that Naltrexone can be taken orally or administered by an implant; that staff from North Metropolitan Community and Alcohol and Drug Service had offered the oral medication free of charge, accepted referrals upon return to the community and had a current wait time of approximately six weeks; and that an implant could be administered by FreshStart as North Metropolitan Community and Alcohol and Drug Service did not offer this service, at a cost of approximately $3,200 (with the option of paying $100 per fortnight until the remaining balance is paid).[116]

NDIS Supports

[116] Exhibit B, page 464 (Performance report by Mr Moulton dated 11 March 2025, page 22).

1. Among other things, Mr Moulton noted that as Plan and Grow had terminated their support, an initial team of support workers had been prepared should the respondent be released to the community, with this team having been made aware of the respondent's offending, previous conditions and requirements.[117] He also gave evidence to the effect that the respondent had engaged appropriately when he met with the program managers of Innovative Support Australia.[118]

Summary

[117] Exhibit B, page 464 (Performance report by Mr Moulton dated 11 March 2025, page 22).

[118] ts 405 (17 March 2025).

1. Mr Moulton summarised the respondent's insights into his contravening behaviours:[119]

   [The respondent] appears to have some insight into the factors which contributed to his contravening behaviours and is reportedly accepting of supports to manage this, particularly as it relates to alcohol, though he has acknowledged ongoing challenges with alcohol use and peer refusal skills. [The respondent] has agreed to continue to be prescribed Escitalopram and engage with supports to address his alcohol use, namely through the prescription of Naltrexone.

   [119] Exhibit B, page 464 (Performance report by Mr Moulton dated 11 March 2025, page 22).

1. From the statement of material facts for charge PE 58346/23, I understand that on 20 November 2023 WA Police conducted a compliance search of the respondent's mobile phone, at which time they identified four programs in the application 'SBS on Demand' which were deemed to have strong sex scenes and strong nudity where sexual intercourse was a major theme. The respondent did not have approval from a Community Corrections Officer to be in possession of the material. The respondent explained that he did not believe the programs were pornography and that the programs had no close up scenes of sexual penetration depicted.

2. On the same day WA Police arrested the respondent and charged him with one count of contravening a requirement of a supervision order contrary to s 80(1) of the High Risk Serious Offenders Act. It was alleged that condition 40 of the supervision order had been breached. The respondent was convicted on one charge on his plea of guilty on 8 January 2024 before a magistrate.[133] In the circumstances, I am satisfied to the requisite standard that the respondent contravened condition 40 of the supervision order (that is, Contravention 13 as described by the State).

Contraventions 14, 15 and 16 (PE 59680/23 - 59683/23)

[133] Exhibit A, pages 369 - 381.

1. The respondent must comply with condition 31 of the supervision order, which provides that the respondent must be subject to a curfew pursuant to s 32 of the High Risk Serious Offenders Act, such that the respondent is to remain at and not leave his approved address as directed by a Community Corrections Officer from time to time.

2. The respondent must also comply with condition 34 of the supervision order, which provides that the respondent must not possess or purchase or consume or use alcohol.

3. From the statement of material facts for charges PE 59680/23 to 59683/23, I understand that it was alleged that on 27 November 2023 the respondent deliberately cut off his electronic monitoring device and left it behind as he walked away. The respondent was in company of his carer at the time who observed this and retrieved the device. The strap on the device was damaged beyond repair, and the respondent had no lawful reason to remove the electronic monitoring device.

4. Further, the respondent was subject to a curfew where he had to be at his residence between the hours of 7.00 pm and 7.00 am daily. It was alleged that around 7.10 pm WA Police arrested the respondent at a bus station; the respondent was conveyed to the hospital for medical treatment where he was subject to a breath test around 10.05 pm; the test indicated a positive result for 0.100g of alcohol per 210ml of breath; and the respondent admitted that he had been consuming alcohol earlier in the day from about 1.00 pm.

5. On the same day WA Police charged the respondent with one count of criminal damage or destruction of property contrary to s 444(1)(b) of the Criminal Code, one count of removing or interfering with an electronic monitoring device fitted as a result of a supervision order contrary to s 33(3) of the High Risk Serious Offenders Act, and two counts of contravening a requirement of a supervision order contrary to s 80(1) of the High Risk Serious Offenders Act. It was alleged that conditions 31 and 34 of the supervision order had been breached. The respondent was convicted on four charges on his plea of guilty on 8 January 2024 before a magistrate.[134] In the circumstances, I am satisfied to the requisite standard that the respondent contravened conditions 31 and 34 of the supervision order (that is, Contraventions 15 and 16 respectively, as described by the State).

   [134] Exhibit A, pages 374 - 392.

6. I note that the respondent must also comply with standard condition 7 of the supervision order, which provides that the respondent must be subject to electronic monitoring under s 31 of the High Risk Serious Offenders Act. While the respondent was not charged with contravening standard condition 7 with respect to the deliberate removal of his electronic monitoring device on 27 November 2023 (which contravention was conceded on behalf of the respondent), from a review of the statement of material facts for charges PE 59680/23 to 59683/23, I am satisfied to the requisite standard that the respondent contravened standard condition 7 of the supervision order (that is, Contravention 14 as described by the State).

Should the supervision order be rescinded, affirmed, amended or extended?

1. As I am satisfied that the respondent contravened conditions of the supervision order, it is necessary to consider what action to take pursuant to s 55(1) of the High Risk Serious Offenders Act.

2. I proceed cognisant that in the absence of restriction, the respondent remains at high risk of committing a serious offence of a sexual nature which may escalate to violence, including a serious offence within the meaning of the High Risk Serious Offenders Act. For the purposes of the contravention proceedings, it is to be assumed that the respondent remains a high risk serious offender. I am not required to make that determination again.

3. I am also cognisant that I am required to make an order which is the least invasive, while still protecting the community adequately from the unacceptable risk the respondent were to pose if he were not under restriction. Further, in deciding which order to make, the paramount consideration is to be the need to ensure adequate protection of the community.

4. Before determining that the supervision order should not be rescinded, I must be satisfied that a supervision order will adequately protect the community against the unacceptable risk that the respondent will commit a serious offence. I am also required to be satisfied, on the balance of probabilities, that the respondent will substantially comply with the standard conditions of the supervision order, the onus of which is on the respondent. The standard conditions are set out in s 30(2) of the High Risk Serious Offenders Act and include the requirement that the offender be under the supervision of a Community Corrections Officer and comply with any reasonable direction of the officer; not commit a serious offence during the period of the supervision order; and be subject to electronic monitoring under s 31.

5. On the evidence before me, the respondent has not discharged that onus. Nor am I satisfied that the supervision order (amended or extended) will adequately protect the community against the unacceptable risk that the respondent will commit a serious offence. In so concluding, I have weighed the following in the balance.

6. First, I have had regard to the respondent's recent performance while subject to the supervision order. The respondent has been found to have contravened the conditions of the supervision order which took effect from 22 May 2023 (which had been tailored to address the respondent's risk factors).

7. The respondent's performance since his release subject to the supervision order on 22 May 2023 was troubling. While released on the supervision order, he was charged with 18 offences, and convictions were entered in respect of all charges. As is recorded in these reasons, I am satisfied that the respondent contravened the conditions of the supervision order (with 16 contraventions having been established). On balance, the respondent's recent performance weighs against the affirmation of his supervision order.

8. If the respondent were to again be released subject to the supervision order, I note that among other things, he would be obliged to comply with the standard condition which requires that he be subject to electronic monitoring under s 31 of the High Risk Serious Offenders Act. I consider that the respondent's most recent performance (particularly his conduct on 27 November 2023) weighs against being satisfied, on the balance of probabilities, that he will substantially comply with the standard conditions of the supervision order.

9. Secondly, I weigh in the balance that despite engagement with his psychologist and Community Corrections Officer, appearances before the Magistrates Court, three periods remanded in custody (a total of 36 days), and the entries of convictions in July, August, September, and October 2023, the respondent engaged in conduct in a particularly high‑risk scenario in November 2023 which was in breach of conditions of the supervision order (see Contraventions 14, 15 and 16 described above). These contraventions involved the intentional removal by the respondent of his electronic monitoring device, and the respondent being heavily intoxicated by alcohol. In this regard, Mr Moulton recorded that the respondent had advised that he had commenced consuming alcohol in the company of family members and associates, before attending a residential address where another female allegedly resided, and while there, the respondent reported that he and his associates used illicit substances (Methylamphetamine) before returning to Morley Galleria Shopping Centre when he proceeded to remove his GPS electronic monitoring device.[135] When these circumstances were put to Dr Wojnarowska, she accepted that the respondent had entered his offending cycle, and opined that this was a 'very risky scenario'.[136]

   [135] Exhibit B, pages 446 - 447 (Performance report by Mr Moulton dated 11 March 2025, pages 4 - 5).

   [136] ts 392 (17 March 2025).

10. I accept that these circumstances aligned with the most likely serious reoffending scenario that had been described by Dr Wojnarowska, as was noted by the State,[137] the occurrence of which weighs against the affirmation of his supervision order.

    [137] See [64] above; and the State's outline of submissions filed 13 March 2025, par 95.

11. Thirdly, I understand the respondent has a diagnosis of FASD, and as was noted by Dr Wojnarowska (and is recorded at [58] above), the exposure to alcohol in utero had a detrimental effect on the respondent's cognitive functioning, specifically on his frontal lobe, which manifests itself as high impulsivity, inability to plan, major problems with attention and concentration. I consider the respondent's impulsivity to be another factor that weighs against being satisfied, on the balance of probabilities, that the respondent will substantially comply with the standard conditions of the supervision order.

12. Further, I note the opinion expressed by Dr Wojnarowska, that the detrimental effect on the respondent's cognitive functioning is viewed as a permanent state with a limited prospect in relation to rehabilitation, and therefore, the area specifically of impulsivity is likely to persist, irrespective of treatment - pharmacological or psychological, in coming years.[138]

    [138] ts 390 (17 March 2025).

13. Fourthly, the respondent had been granted funding from the NDIS and while last in the community, had the assistance of support workers from Plan and Grow. Despite the support that was provided and the respondent's positive reflections on his relationship with his support workers, the respondent on occasions separated himself from support workers while in public to allow for engagement with peers, which appeared to lead to contravening behaviour. I also understand that the support workers had on occasion attempted to counsel the respondent with respect to the conditions of the supervision order before the respondent engaged in the contravening behaviour.[139] While I accept that the support that would be available to the respondent if he were now released subject to the supervision order would be of significant assistance to the respondent and a significant protective factor, I am also cognisant that the respondent repeatedly contravened conditions of the supervision order when last released despite the significant support that had been afforded to him.

    [139] Exhibit B, page 450 (Performance report by Mr Moulton dated 11 March 2025, page 8).

14. Fifthly, I note that the respondent's relationship with Plan and Grow had been a mature and positive one, which had afforded the respondent support and engagement, that he characterised as being akin to that of a family, but which engagement has since been terminated. I weighed the withdrawal of Plan and Grow in the balance.

15. Further, while I note that another provider would support the respondent upon his release, I remain troubled given:

    (a)that the respondent's contravening behaviour had at times occurred in the presence of support workers whom he reported he had a good relationship with;

    (b)Dr Wojnarowska's opinion that the respondent historically requires quite a lot of time to develop a trusting relationship with professionals;[140]

    (c)that the respondent had not met his new support workers while in custody, in accordance with the new service provider's practice;[141] and

    (d)Dr Wojnarowska's concern that, as a result, it was a possibility the respondent would not be forthcoming with information should he experience any problems.[142]

    [140] ts 391 (17 March 2025).

    [141] ts 402 - 403 (17 March 2025).

    [142] ts 391 (17 March 2025).

16. Sixthly, I weighed in the balance the reliability of the respondent's self‑report. In this regard, I note that Ms Morrison had reported that it was not common for the respondent to demonstrate difficulties with disclosure, but that he had a tendency to provide inconsistent information which is likely a symptom of his FASD and moderate intellectual disability.[143]

    [143] Exhibit B, page 418 (Treatment progress report by Dr Barbas dated 17 February 2025, par 23).

17. Seventhly, the respondent's identified treatment needs were and remain outstanding. They include sexual self‑regulation, pornography use, impulsivity, poor problem-solving, limited social support, interpersonal relationship skills, anti-social attitudes, peer refusal, emotional regulation, risk management and substance use.[144] The evidence suggests that the respondent has a rudimentary understanding of risk factors associated with his offending behaviour, including insight into his substance use as being problematic and as a precursor for increasing his sex drive and use of pornography, which ultimately leads to an increase in his risk of violent sexual offending. The respondent understands the influence that anti-social peers have on his substance use. However, the respondent appears to have difficulty translating his insights into behavioural change, particularly with regard to peer refusal. I weighed this in the balance.

    [144] Exhibit B, page 424 (Treatment progress report by Dr Barbas dated 17 February 2025, par 48).

18. Eighthly, I accept Dr Barbas' opinion that the respondent's difficulty in refusing peers presents an added layer of complexity of risk management (noting that peers have continued to lead to the respondent engaging in substance use),[145] and I weigh the same in the balance.

    [145] Exhibit B, page 423 (Treatment progress report by Dr Barbas dated 17 February 2025, par 43).

19. Ninthly, as noted above at [63], I also had regard to the opinion expressed by Dr Wojnarowska that the respondent had matured, in that he is now prepared to take more responsibility for his offending.[146] I also had regard to Dr Wojnarowska's report that the respondent had expressed what she considered to be a very genuine concern about the possibility of him relapsing into drug and alcohol use;[147] and that Dr Wojnarowska had accepted that the respondent has a greater understanding now than before as to the implications of breach and the deterrent effect of breaches of a supervision order, which changes she characterised as the respondent 'developing insight'.[148] I also had regard to the opinion expressed by Ms Morrison, recorded by Dr Barbas in her report and summarised at [84] above.

    [146] ts 396 (17 March 2025).

    [147] ts 396 (17 March 2025).

    [148] ts 396 (17 March 2025).

20. I note that accommodation is available to the respondent upon release (albeit it is accepted that the accommodation is not ideal, as among other things its proximity to vulnerable women and children).[149] The respondent also has some prospect of securing employment. The availability of accommodation and the prospect of employment are protective matters that weigh in favour of a finding that the court can be satisfied that, on the balance of probabilities, the respondent will substantially comply with the standard conditions of the supervision order.

    [149] Exhibit B, pages 459 - 460 (Performance report by Mr Moulton dated 11 March 2025, pages 17 - 18); ts 393 (17 March 2025).

21. So too does the expressed willingness on the part of the respondent to participate in treatment. Dr Barbas reported that the respondent continued to engage well in individual psychological intervention and noted that the respondent self-reported the benefits of doing so. Further, the respondent had expressed his willingness to Dr Wojnarowska to commence treatment with Naltrexone to diminish his cravings for alcohol. I also understood that the respondent was amenable to taking a higher dosage of Escitalopram (an increase to 30 milligrams from his prior dosage of 10 milligrams) in the hope of having the desired effect on his libido, as had been recommended by Dr Wojnarowska.

22. I understood Dr Wojnarowska to hold the opinion that the respondent's risk could be managed in the community. I had regard to her opinion, and to the potential for the respondent to be released subject to the additional conditions recorded in Mr Moulton's report.

23. However, while I weigh Dr Wojnarowska's opinion in the balance, I also agree with the State's submission that in the context of Dr Wojnarowska's evidence that the respondent's risk can be managed in the community, the following comments of Derrick J in The State of Western Australia v West [No 6] [2019] WASC 427 [249] are noteworthy:[150]

    ultimately the question for me is not whether the reduction in risk is substantial, or whether in the opinion of a highly qualified expert witness a person at high risk of committing sexual offences can be managed in the community, but rather whether the respondent's risk of committing further serious sexual offences will, by releasing the respondent on a supervision order, be reduced to a level that is reasonably acceptable and will ensure the adequate protection of the community.

    [150] State's outline of submissions filed 13 March 2025, par 108.

24. I also accept that the supervision order was effective in so far as the respondent did not commit a serious offence when last released into the community. However, his prompt return to substance use, and association with anti-social peers were indicators of a return to his past offending cycle. Of particular concern was the removal by the respondent of his GPS electronic monitoring device after consuming alcohol and use of Methylamphetamine with anti-social peers.

25. On balance, in all of the circumstances and particularly weighing all of the matters identified at [185] to [203] above, I am not satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of the supervision order. I so find in a context where the respondent's risk of future violent sexual offending remains in the 'well above average risk' range and has not changed since Dr Wojnarowska's last assessment of him. I also accept the State's submission that of considerable concern is Dr Wojnarowska's opinion that the type of serious offending that the respondent is most likely to commit could potentially escalate to murder.[151]

    [151] State's outline of submissions filed 13 March 2025, par 110.

26. I accept that there is no requirement that there be no risk of reoffending.[152] Unfortunately in this case, despite the availability of suitable accommodation, the significant support available to the respondent funded by the NDIS, the potential for employment, the respondent's desire to remain in the community, the respondent's engagement in treatment and growing insight, and the utility of the suggested additional conditions, when regard was had to all of the evidence, the respondent has not discharged his burden pursuant to s 29, and I am not satisfied that a supervision order (amended or extended) will adequately protect the community against the unacceptable risk that the respondent will commit a serious offence.

    [152] Director of Public Prosecutions (WA) v Griffiths [107].

Conclusion and orders

1. For these reasons, I am satisfied that the respondent contravened conditions of the supervision order, and that the supervision order must be rescinded and the respondent made subject to a continuing detention order under the High Risk Serious Offenders Act.

2. However, I am also concerned that treatment gains by the respondent might stall while he remains subject to a continuing detention order.[153] Evidence was given in the course of the contravention hearing as to the steps necessary to advance the rehabilitation of the respondent and his care and treatment should he be placed on a continuing detention order. With regard to the same, I make the following observations and recommendations.

   [153] ts 394, 397 (17 March 2025).

3. Individual psychological treatment ought continue while the respondent is subject to a continuing detention order. Ideally, the respondent will continue to be treated by Ms Morrison, and as a minimum he and Ms Morrison ought meet with sufficient frequency so as to maintain their established therapeutic relationship and the respondent's trust. Sessions ought to increase in frequency in the lead‑up to the respondent's next hearing in preparation for potential release to the community.

4. It would appear appropriate the respondent ought also be afforded the opportunity to continue taking Escitalopram for the treatment of depression and anxiety, and for the dose to be increased so that it might have the desired effect on the respondent's libido (noting that in the course of her evidence, Dr Wojnarowska suggested that the dosage required to have some impact on the respondent's libido was at least 30 mg).

5. As was recorded by Dr Barbas at paragraph 38 of her report, the respondent attributed the majority of his contraventions to his significant substance use problem. From the evidence led, I understand that while the respondent has been subject to the interim detention order, it has not been possible for the respondent to be prescribed Naltrexone. As it can diminish cravings for alcohol, and given that the respondent has expressed willingness to being administered Naltrexone, the possibility of securing funding so as to meet (or subsidise) the cost of its administration of Naltrexone by implant ought be explored before the next review hearing.

6. Every effort should be made to assist the respondent to identify, and to the extent possible, now begin to develop prosocial supports and to foster his interest in recreational activities.[154] As was observed by Dr Barbas, the respondent would benefit from engagement in voluntary substance use programs and vocational interests within the custodial setting. He should be encouraged to pursue the same. Also, the respondent lacks pro-social supports in the community. The possibility of identifying and engaging a mentor for the respondent prior to the next review hearing ought also be explored.

   [154] Exhibit B, page 424 (Treatment progress report by Dr Barbas dated 17 February 2025, par 49).

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

25 MARCH 2025