The State of Western Australia v West [No 7]
[2022] WASC 397
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- WEST [No 7] [2022] WASC 397
CORAM: SMITH J
HEARD: 14 NOVEMBER 2022
DELIVERED : 14 NOVEMBER 2022
PUBLISHED : 23 NOVEMBER 2022
FILE NO/S: SO 4 of 2012
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
DARREN HARLEY WEST
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 - High risk serious offender - Sixth review of continuing detention order - Whether respondent remains a high risk serious offender - Whether continuing detention order or supervision order should be made - Whether community would be adequately protected if respondent released on a supervision order
Legislation:
Dangerous Sexual Offenders Act 2006 (WA) (repealed)
High Risk Serious Offenders Act 2020 (WA)
Result:
Continuing detention order rescinded
Supervision order made for a period of 5 years
Category: B
Representation:
Counsel:
| Applicant | : | Mr D McDonell |
| Respondent | : | Mr A Elliott |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Anthony Elliott |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v West [No 3] [2015] WASC 188
Director of Public Prosecutions (WA) v West [No 4] [2016] WASC 205
Director of Public Prosecutions (WA) v West [No 5] [2018] WASC 33
Garlett v The State of Western Australia [2022] HCA 30; (2022) 96 ALJR 888
The State of Western Australia v ACJ [2021] WASC 219
The State of Western Australia v Allen [No 5] [2019] WASC 359
The State of Western Australia v Atkins [No 2] [2022] WASC 45
The State of Western Australia v Atkinson [No 2] [2020] WASC 379
The State of Western Australia v BC [2022] WASC 359
The State of Western Australia v D'Rozario [No 3] [2021] WASC 412
The State of Western Australia v Lewis [No 2] [2020] WASC 377
The State of Western Australia v PCA [2020] WASC 478
The State of Western Australia v Quartermaine [No 2] [2021] WASC 267
The State of Western Australia v TJZ [2020] WASC 407
The State of Western Australia v West [2013] WASC 14
The State of Western Australia v West [No 2] [2014] WASC 83
The State of Western Australia v West [No 6] [2019] WASC 427
The State of Western Australia v Yorkshire [No 2] [2021] WASC 261
The State of Western Australia v ZSJ [2020] WASC 330
Table of Contents
1.0 The history of prior orders and the result of the first review
2.0 Object of a review
3.0 Relevant principles to be applied in a review of a continuing detention order
4.0 The issues I must decide in this review
5.0 The previous reviews of the detention order
6.0 Evidence before the court in this review
7.0 The evidence relevant to matters that must be considered in a periodic review
7.1 The respondent's history of serious offending (of sexual offences) and personal circumstances
7.1.1 The respondent's family circumstances
7.1.2 The respondent's history of convictions of serious offences
7.1.3 The respondent's behaviour in prison since the last review
7.2 Mentor engagement
7.3 Dr Vuletich's neuropsychological assessment reports
7.4 The respondent's general health and recent ACAT and NDIS assessments
7.5 Psychological intervention
7.6 Dr Wojnarowska's evidence
7.7 Ms Nichols – Community Corrections Officer reports
8.0 Disposition
8.1 Does the respondent remain a high risk serious offender?
8.2 Should the court affirm the continuing detention order or make a supervision order?
8.3 Duration of supervision order
SMITH J:
1.0 The history of prior orders and the result of the first review
Mr West has a history of sexual offending.
He was until 10 April 2007, serving a sentence of imprisonment for serious sexual offences, and was due to be released on 29 October 2012. After an application was made under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) on 12 October 2012, on 23 January 2013 Corboy J determined he was a serious danger to the community and made an order under s 17(1)(a) of the DSO Act, that he be detained in custody for an indefinite term for control, care or treatment.[1]
[1] The State of Western Australia v West [2013] WASC 14.
As required by s 29 and s 31 of the DSO Act, the continuing detention order has been reviewed on five occasions during the period from 2015 to 2022. Following each review, the continuing detention order was affirmed.[2]
[2] The State of Western Australia v West [No 2] [2014] WASC 83 (Sleight C); Director of Public Prosecutions (WA) v West [No 3] [2015] WASC 188 (Hall J); Director of Public Prosecutions (WA) v West [No 4] [2016] WASC 205 (Hall J); Director of Public Prosecutions (WA) v West [No 5] [2018] WASC 33 (Corboy J) and The State of Western Australia v West [No 6] [2019] WASC 427 (Derrick J).
The last review was heard by Derrick J on 15 November 2019, and the continuing detention order was confirmed on 27 November 2019.[3]
[3] The State of Western Australia v West [No 6] [2019] WASC 427.
A hearing of the sixth review was listed to be heard by Hall J on 15 February 2022. An application was made on behalf of Mr West to adjourn the review hearing. At that time Mr West was fourth on the waiting list for accommodation. On the basis that available suitable accommodation is a critical factor in determining whether or not a respondent should be released under supervision, the application to adjourn the review hearing for a period of four months was granted.
On 21 July 2022, the review application was listed for hearing on 14 November 2022.
On 9 July 2020, the High Risk Offenders Act 2020 (WA) (the HRSO Act) received Royal Assent, and as a result, pt 1 of the HRSO Act came into effect. On 26 August 2020, with the exception of s 91, sch 1, div 2, subdiv 1, item 1, the remaining provisions of the HRSO Act came into force by proclamation, pursuant to s 2(1)(c) and s 122 of the HRSO Act. On the same day the HRSO Act commenced, the DSO Act was repealed by s 123 of the HRSO Act.
This is the sixth review of Mr West's continuing detention order, which must be determined pursuant to s 68 of the HRSO Act.
At the hearing of the review on 14 November 2022, it was conceded on behalf of Mr West that, on the evidence before the court, without a detention order or a supervision order, Mr West remains a serious danger to the community. For reasons that follow, I am of the opinion that this concession is properly made, and should be accepted by the court.
At the completion of the hearing of the review on 14 November 2022, I found that Mr West remains a high risk serious offender, but that the risk to the community of him committing a serious offence could be reduced to a reasonably acceptable level by making a supervision order that included not only the standard conditions, but also the additional conditions recommended by the Department of Justice.
In these reasons, I set out my findings for concluding that Mr West remains a high risk serious offender within the meaning of s 7(1) of the HRSO Act, and why I rescinded the continuing detention order and made a supervision order.
2.0 Object of a review
A person who has been detained in custody under the HRSO Act must be the subject of a review.
Pursuant to s 64 of the HRSO Act, the first review is to occur as soon as practicable after the period of one year commencing when the offender is first in custody under a continuing detention order and subsequent reviews are to occur as soon as practicable two years after the last review of the detention order.
Section 68 of the HRSO Act provides:
68. Review of detention under continuing detention order
(1)On a review under section 66 of an offender's detention —
(a)if the court does not find that the offender remains a high risk serious offender it must rescind the continuing detention order; or
(b)if the court finds that the offender remains a high risk serious offender it must —
(i)affirm the continuing detention order; or
(ii)subject to section 29, rescind the continuing detention order and make a supervision order.
(2)In deciding whether to make an order under subsection (1)(b)(i) or (ii), the paramount consideration is to be the need to ensure adequate protection of the community.
The purpose and object of a review under the HRSO Act is substantially the same as a review under the DSO Act.
The principles that apply to a person who has been detained pursuant to the terms of a continuing detention order under the DSO Act were comprehensively set out by Hall J in The State of Western Australia v Allen [No 5] as follows:[4]
[4] The State of Western Australia v Allen [No 5] [2019] WASC 359 [3] ‑ [11] (footnotes omitted).
A person who has been detained in custody under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) must be the subject of a review. A first review is to occur after one year and subsequent reviews are to occur every two years thereafter: s 29 DSO Act.
The purpose of a review is to determine whether the person continues to be a serious danger to the community and, if so, whether the appropriate order is continued detention or release on supervision: s 33 DSO Act. If the person is no longer a serious danger to the community the detention order must be rescinded. If the person continues to be a danger consideration must be given to whether detention or release on supervision is appropriate. In respect of the latter decision the paramount consideration is the need to ensure adequate protection of the community: s 33(3) DSO Act.
It is a significant matter to deprive a person of his liberty, not for something he has done but for something that he might do in the future. In order to justify detention on these grounds the evidence must be acceptable and cogent and establish the existence of a serious danger to the community to a high degree of probability: s 7(2) DSO Act. Such a finding requires satisfaction that there is an unacceptable risk the person would commit a serious sexual offence if not placed under a supervision order or detained.
A court cannot make a supervision order unless it is satisfied on the balance of probabilities that the person will substantially comply with the standard conditions of the order: s 33(4) DSO Act. The onus of proof as to substantial compliance with the standard conditions is on the person: s 33(5) DSO Act. The standard conditions in relation to a supervision order are those contained in s 18(1): see the definition of standard condition in s 3.
The clear intention of the review process is to allow for the possibility of a change of circumstances. Detention under the DSO Act is not a punishment for past offending, rather it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised. If circumstances change such that the risk of reoffending reduces or can be better managed in the community, then the continuing need for detention must be considered.
The risk of reoffending may change over time. It may be affected by age, health or the successful completion of treatment. The availability of new technology or resources in the community may also affect whether the risk of reoffending can be managed on a supervision order.
The justification for making a detention order is the existence of an unacceptable risk of serious sexual offending that cannot be adequately controlled by conditional release. However, detention also serves the purpose of allowing treatment and care in a secure environment: s 17 DSO Act. This confirms an obligation on the part of the prison authorities to facilitate change by offering programs and access to counselling.
If the risk changes or resources improve to enable more efficacious conditions then the need for detention may dissipate. In these circumstances continuing detention may be unjust.
The review process is intended to ensure that detention only continues where necessary. It mitigates the otherwise potentially draconian effect of imprisoning people for crimes that they have not committed. Reviews are not, therefore, merely a welfare check, rather they are an exercise of judicial power to affirm, vary or rescind a detention order. Continuing detention should not be ordered unless that course is justified by the circumstances existing at the time of the review. The court should choose the order that is least invasive of the person's right to be at liberty, whilst ensuring an adequate degree of protection of the community.
Although the test the court must apply in determining whether a person is a high risk serious offender under s 7 of the HRSO Act is different, these general principles have application to a review under the HRSO Act. This is because in a review under the HRSO Act, the court must decide whether it is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to an offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence, rather than whether the offender is a serious danger to the community in that there is an unacceptable risk that, if the person were not subject to a continuing detention order or supervision order, the person would commit a serious sexual offence.
The purpose and importance of a review under the HRSO Act was recently considered by the plurality in Garlett v The State of Western Australia who remarked:[5]
[A]ny curtailment of liberty is subject to regular review to ensure that the evaluation of risk and response remains current. Where detention can be justified only by that evaluation and cannot be continued beyond the currency of such an evaluation, the purpose of detention and of the regime under which it is imposed can readily be seen to be distinct from the purpose of punishment.
The HRSO Act can be seen to be protective, rather than punitive, in its purpose and effect because:
(a)it operates by reason of the evaluation by reference to criteria concerned solely with the risk of harm to the community rather than considerations of retribution or deterrence;
(b)the evaluation of risk to the community is given effect only to the extent that interference with an offender's liberty is necessary to protect the community;
(c)the processes by which the evaluation is undertaken and given effect are familiar as exercises of judicial power and, as such, serve to ensure the fairness and rationality of the making of, and giving effect to, the evaluation. There was, in the course of argument in this Court, a suggestion that the imposition of the obligation of disclosure upon an offender was a departure from ordinary judicial processes. That suggestion was without foundation: that obligation relates only to material upon which the offender proposes to rely. Moreover, it is a familiar aspect of the process of criminal justice; and
(d)the provisions for regular review serve to ensure that the restrictions upon an offender's personal liberty do not continue any longer than is necessary for the protection of the community.
[5] Garlett v The State of Western Australia [2022] HCA 30; (2022) 96 ALJR 888 [55] ‑ [56] (Kiefel CJ, Keane and Steward JJ) (footnotes omitted).
Edelman J in Garlett v The State of Western Australia also relevantly pointed out:[6]
The State is, in effect, required to provide ongoing justification for a continuing detention order at each review. This is because, by s 68(1)(a), the Court must rescind a continuing detention order unless it makes a finding at the review that the offender remains a high risk serious offender, a matter upon which the State bears the onus of proof.
On review, if the offender remains a high risk serious offender, s 68(1)(b) ensures that a continuing detention order remains an order of last resort. The discretion to make a supervision order ensures that such an order should be made, in the exercise of discretion, if it could reduce the risk that the offender will commit the specified serious offence to an acceptable level.
[6] Garlett v The State of Western Australia [2022] HCA 30; (2022) 96 ALJR 888 [236] ‑ [237] (footnote omitted).
3.0 Relevant principles to be applied in a review of a continuing detention order
Section 48 of the HRSO Act provides:
Restriction orders
(1)If the court hearing a restriction order application finds that the offender is a high risk serious offender, the court must —
(a)make a continuing detention order in relation to the offender; or
(b)except as provided in section 29, make a supervision order in relation to the offender.
(2)In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.
On a review under the HRSO Act, the court has to consider, first, whether the person remains a 'high risk serious offender'.
In deciding if an offender is a 'high risk serious offender', consideration must, if required by the circumstances of the particular case, be given to whether it is necessary to make a restriction order to ensure adequate protection of persons inside and outside of Western Australia and/or Australia against an unacceptable risk that the offender will commit a serious offence against those persons.[7]
[7] Garlett v The State of Western Australia [2022] HCA 30; (2022) 96 ALJR 888 [100] ‑ [101] (Kiefel CJ, Keane and Steward JJ), [225] (Edelman J).
The meaning of the words 'high risk serious offender' are defined in s 7(1) of the HRSO Act as a finding by the court that it is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.
A high degree of probability standard is a higher standard than the standard of balance of probabilities but it is a lesser standard than the standard of beyond reasonable doubt. The standard is otherwise incapable of further definition.[8]
[8] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [28]; The State of Western Australia v West [No 6] [2019] WASC 427 [16] ‑ [24]; The State of Western Australia v ZSJ [2020] WASC 330 [47].
The State bears the onus of satisfying the court that an offender is a high risk serious offender.[9] The court, in considering whether it is satisfied of the matters in s 7(1), must have regard to the following matters listed in s 7(3) of the HRSO Act:
[9] High Risk Serious Offenders Act 2020 (WA), s 7(2).
(a)any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section;
(b)any other medical, psychiatric, psychological, or other assessment relating to the offender;
(c)information indicating whether or not the offender has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by the offender;
(e)any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;
(f)whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;
(g)the offender's antecedents and criminal record;
(h)the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;
(i)the need to protect members of the community from that risk;
(j)any other relevant matter.
In Garlett v The State of Western Australia, the plurality of the High Court recently observed the statutory task of the court in assessing unacceptable risk:[10]
Whatever may be said in the abstract of the relative seriousness of an offence designated as a 'serious offence' for the purposes of the HRSO Act, it is always for the Court to determine whether there is an 'unacceptable risk' that the offender will commit such an offence, having regard to the evidence as to the nature of the offending and the circumstances of the offender. Importantly, the evaluative exercise contemplated by s 7 of the HRSO Act is not an exercise involving the notional ordering in the abstract of the relative culpability of categories of offences. Rather, s 7 contemplates a practical evaluation concerned with the circumstances of the particular offending and the particular offender. While the requirement of an evaluation under s 7 depends upon the offender having been convicted of a 'serious offence', ss 7 and 48 do not envisage the possibility that a restriction order might be made to prevent the commission of a serious offence, whether of the same kind or of another kind, unless the risk of further offending involves a real threat of harm to the community.
[10] Garlett v The State of Western Australia [2022] HCA 30; (2022) 96 ALJR 888 [84] (Kiefel CJ, Keane and Steward JJ) (footnote omitted).
The court must disregard the possibility that the person might temporarily be prevented from committing a serious offence by imprisonment, remand in custody, or the imposition of bail conditions.[11]
[11] High Risk Serious Offenders Act 2020 (WA), s 7(4).
In The State of Western Australia v ZSJ, Fiannaca J remarked shortly after the HRSO Act came into operation that:[12]
[T]he HRSO Act operates largely as the DSO Act did in respect of serious sexual offences. Whereas previously the question was framed in terms of whether the respondent was a 'serious danger to the community', the question now is whether he is a 'high risk serious offender', but the matters about which the court must be satisfied are essentially the same.
[12] The State of Western Australia v ZSJ [2020] WASC 330 [5].
In The State of Western Australia v ACJ, Fiannaca J pointed out that this principle also applies to the exercise of the court's power to make a continuing detention order or a supervision order under the HRSO Act:[13]
The court should make the order that is least invasive of the respondent's right to liberty, while at the same time ensuring an adequate degree of protection of the community, having regard to the paramount consideration stipulated in s 48(2). As was decided in respect of s 17(2) of the DSO Act, that requirement does not exclude other considerations. Further, the use of the word 'adequate' indicates that a qualitative assessment is required. It cannot simply be assumed that the most assured preventative measure is detention and, therefore, the protection of the community will always favour such an order.
[13] The State of Western Australia v ACJ [2021] WASC 219 [32] (footnotes omitted).
When considering whether to make either an indefinite detention order or a supervision order, it is established that the court is to be guided by the principle of risk minimisation; minimising the risk of reoffending by committing a serious offence to a level that ensures adequate protection of the community as opposed to elimination of any risk of committing a serious offence by the respondent.[14]
[14] The State of Western Australia v Atkins [No 2] [2022] WASC 45 [19] ‑ [20] (Strk J) (footnote omitted).
This approach was approved by the plurality in Garlett v The State of Western Australia as follows:[15]
In Attorney‑General v Francis, the Court of Appeal of the Supreme Court of Queensland said, in relation to the choice to be made by the Supreme Court of Queensland between a continuing detention order and a supervision order by the analogous provisions of the DPSO Act:
'The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the [DPSO] Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.'
That s 29 of the HRSO Act does not require an approach different from that which has been accepted under the DPSO Act has been rightly, and consistently, recognised by the Supreme Court of Western Australia. So, in ACJ, Fiannaca J said of the operation of s 48 with s 7 of the HRSO Act:
'The court should make the order that is least invasive of the respondent's right to liberty, while at the same time ensuring an adequate degree of protection of the community, having regard to the paramount consideration stipulated in s 48(2). As was decided in respect of s 17(2) of the DSO Act, that requirement does not exclude other considerations. Further, the use of the word 'adequate' indicates that a qualitative assessment is required. It cannot simply be assumed that the most assured preventative measure is detention and, therefore, the protection of the community will always favour such an order.'
[15] Garlett v The State of Western Australia [2022] HCA 30; (2022) 96 ALJR 888 [105] ‑ [106] ( Kiefel CJ, Keane and Steward JJ) (footnotes omitted).
If the court is satisfied to the requisite standard that there is an unacceptable risk the offender would commit a serious offence if not subject to a restriction order, the court must then turn to consider whether a detention order or a supervision order should be made.
The powers conferred by the HRSO Act, like the now repealed DSO 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 which requires the court to choose the order that is the least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community.[16] The approach of the court under the DSO Act was guided by the principle that the DSO Act does not require that there be no risk of reoffending; the issue is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community.[17]
[16] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 297 [97] (Murray AJA).
[17] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33] (Beech J).
The court should not make a supervision order unless satisfied, on the balance of probabilities, that the respondent will comply with the standard conditions set out in s 30 of the HRSO Act. The respondent has the onus of proving that he will substantially comply.[18]
[18] High Risk Serious Offenders Act 2020 (WA), s 29(2).
By s 48(1)(b) of the HRSO Act, the power of the court to make a supervision order is subject to s 29. Section 29(1) and (2) relevantly provide:
Limitation on power to make or amend supervision order
(1)A court cannot make, affirm or amend a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made, affirmed or amended.
(2)The onus of proof as to the matter described in subsection (1) is on the offender.
The term 'standard conditions' in relation to a supervision order is defined in s 3 of the Act to mean a condition that under s 30(2) of the HRSO Act must be included in the order. Section 30(2) specifies seven conditions that must be included in any supervision order.
In respect of compliance with the standard conditions, in The State of Western Australia v ACJ, Fiannaca J relevantly pointed out:[19]
… In essence, I 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.
As I identified in Hart, some matters that will be of relevance are (a) the respondent's attitude to the conditions of the supervision order (in particular whether he is likely to deliberately flout the conditions); (b) his capacity to comply with the conditions; (c) what measures there are in place to ensure he would substantially comply; and (d) 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 HRSO Act. In particular, where engagement in counselling is to be a condition of the supervision order, the respondent's willingness to engage in a meaningful way, rather than just attend the counselling session, will be a relevant consideration, given the significance of counselling as a means of monitoring risk as well as assisting in the reduction of risk. The same may be said of engagement in supervision with the Community Corrections Officer (CCO) allocated to the respondent.
Even where the court is satisfied that the respondent will substantially comply with the standard conditions of a supervision order, the court must make a CDO if it is not satisfied (which includes if it is simply left in doubt) that conditional release under a supervision order will ensure an adequate degree of protection to the community.
[19] The State of Western Australia v ACJ [2021] WASC 219 [36] ‑ [38] (footnotes omitted).
This approach of Fiannaca J was also approved by Kiefel CJ, Keane and Steward JJ in Garlett v The State of Western Australia:[20]
[T]he evaluation of whether or not an offender can discharge the onus of showing a likelihood that he or she will not commit any further serious offences while under a supervision order must inevitably be affected by the restraints upon the offender's conduct imposed by the other conditions referred to in s 30(2)(a)-(e) and (g) of the HRSO Act. In this regard, in Western Australia v ACJ, Fiannaca J observed:
'The question of whether the respondent will substantially comply with the standard conditions of the supervision order requires consideration of all of the circumstances, both personal to him and external, which will affect him. External circumstances include the conditions of the supervision order, the available means to monitor, supervise and treat him, and any pro‑social support available to him.'
These observations by Fiannaca J correctly state the operation of s 30(2)(f). This understanding of the relationship between ss 29 and 30(2)(f) underpins the making of numerous supervision orders by the Court.[21]
[20] Garlett v The State of Western Australia [2022] HCA 30; (2022) 96 ALJR 888 [103] - [104] (footnotes omitted).
[21] Referring to The State of Western Australia v Lewis [No 2] [2020] WASC 377 [102] ‑ [111]; The State of Western Australia v Atkinson [No 2] [2020] WASC 379 [87] ‑ [95]; The State of WesternAustralia v TJZ [2020] WASC 407 [158] ‑ [169]; The State of Western Australia v PCA [2020] WASC 478 [388] ‑ [406]; The State of Western Australia v Yorkshire [No 2] [2021] WASC 261 [117] ‑ [146]; The State of Western Australia v Quartermaine [No 2] [2021] WASC 267 [155] ‑ [170]; The State of Western Australia v D'Rozario [No 3] [2021] WASC 412 [136] ‑ [140]; The State of Western Australia v Atkins [No 2] [2022] WASC 45 [140] ‑ [156].
Edelman J also importantly remarked in Garlett v The State of Western Australia:[22]
There is, however, one substantial constraint upon the exercise of the discretion by the Court to impose a supervision order rather than a continuing detention order. By s 29, the Court cannot make a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order, including not committing another serious offence. The offender bears the onus of proof under s 29.
The onus on the offender in s 29(1) is not an impossible onus which requires negating the possibility of commission of every variant of the many listed serious offences. In an adversarial system of law, s 29(1) should be interpreted to require only that the offender establish that, with a supervision order imposed, the offender will not, on the balance of probabilities, commit the serious offence, or offences, specified in the State's application. For instance, an offender who is alleged in the State's application to pose an unacceptable risk of committing dangerous driving causing grievous bodily harm need not establish that they do not pose a risk of committing a robbery.
Although it is invidious to speak of probabilities in the context of predicting human behaviour, the effect of s 29(1) is that a supervision order cannot be made, and a continuing detention order must be made, if the risk of the commission of the specified serious offence remains more likely than not after taking into account the conditions of the supervision order. Nevertheless, subject to the issues related to legislative facts discussed below, which issues were not before this Court on the appeal, a continuing detention order should be a rare order because s 30(5) permits an almost unlimited range of possible conditions beyond the standard supervision order conditions. In most circumstances, a supervision order should be able to satisfy the Court that the specified serious offence will not be committed on the balance of probabilities. In addition to reporting and electronic monitoring, the long list of possible supervision order conditions includes conditions like those before the Court in Minister for Home Affairs v Benbrika such as prohibitions on various associations or attending various locations, home curfew, and even, in extreme cases, home detention requirements.
[22] Garlett v The State of Western Australia [2022] HCA 30; (2022) 96 ALJR 888 [231] ‑ [233] (footnotes omitted).
Following the recent decision of the High Court in Garlett, Derrick J in The State of Western Australia v BC relevantly observed in respect of the established principles that:[23]
For the court to be satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions of the supervision order, it must be satisfied that the offender will comply with the standard conditions in a manner and to an extent that will ensure the adequate protection of the community from the unacceptable risk of the offender committing a 'serious offence'. Further, in determining if it is satisfied that the offender will substantially comply with each standard condition of the supervision order, the court must have regard not only to the constraints that will be imposed upon the offender by the other standard conditions, but also to the constraints that will be imposed upon the offender by all the other 'non-standard' conditions of the supervision order.
[23] The State of Western Australia v BC [2022] WASC 359 [40] (footnotes omitted).
4.0 The issues I must decide in this review
When regard is had to the established principles, the issues that I must decide in this review are:
(a)whether the court is satisfied to a high degree of probability that Mr West is a high risk serious offender, within the meaning of the HRSO Act; at the time of this review, is there an unacceptable risk of Mr West committing a serious offence specified in sch 1 of the HRSO Act;[24] and
(b)if not, the court must rescind the continuing detention order so that Mr West be released from detention; or
(c)if so,
(i)whether the continuing detention order should be affirmed because the court cannot be satisfied that the release of Mr West on a supervision order would provide adequate protection of the community against the unacceptable risk that Mr West will commit a serious offence; or
(ii)whether the continuing detention order should be rescinded and a supervision order made which will release Mr West into the community, subject to the standard conditions and additional conditions that the court considers appropriate.
[24] Being one of the offences specified in Schedule 1 of the High Risk Serious Offenders Act 2002 (WA).
A supervision order cannot be made if Mr West has not proved on the balance of probabilities that he will substantially comply with the standard conditions of a supervision order, which conditions include that he not commit a serious offence during the period of the order. In particular, if after considering all of the evidence and factors that the court must consider, including the standard conditions and all of the proposed conditions of the supervision order, the risk of a commission of a specified serious offence remains more than likely than not, a supervision order cannot be made and the continuing detention order affirmed.
5.0 The previous reviews of the detention order
The first review was conducted by Commissioner Sleight on 14 March 2014. In a very short decision his Honour concluded that Mr West remained a serious danger to the community if he was not subject to a continuing detention order. In his reasons, his Honour had regard to evidence before him that:
(a)Mr West had been found guilty of sexually assaulting another prisoner in June 2013, which offence was dealt with as an internal prison matter;
(b)Mr West had only been recently able to commence an intensive sex offender treatment program but had difficulty comprehending the material in the program and had limited intervention so that there was no evidence of any significant treatment gains.
The findings made in the second to fourth reviews were summarised by Derrick J in the fifth review as follows:[25]
[25] The State of Western Australia v West [No 6] [2019] WASC 427 [5] ‑ [7] (footnotes omitted).
The second review was conducted by Hall J. In his reasons for declining to rescind the continuing detention order Hall J found that the respondent remained at high risk of reoffending and that the factors that contributed to the risk included the respondent's psychopathic traits that were not likely to improve over time. His Honour found that the respondent had gained some insight into his offending as to relevant risk factors but that his ability to self‑manage was limited. His Honour expressed the view that any plan to release the respondent into the community needed to involve a high level of external control which in practical terms meant regular and constant monitoring both by personal contact and Global Positioning System (GPS) tracking. His Honour stated that the monitoring would need to be effective in controlling any relapse into alcohol use. His Honour expressed the view that it would also be desirable if opportunities for employment were made available to the respondent to avoid the risk of boredom. His Honour stated that any place of residence for the respondent needed to be at a location where controls to prevent the risk of reoffending could be put in place and adequately managed.
The third review was also conducted by Hall J. In his reasons for refusing to rescind the continuing detention order Hall J made the same findings as he had made on the third review, and consequently also found that there had been little change in the respondent's situation over the previous 12 months. His Honour made the point that there was a real danger that the respondent would become institutionalised and less suitable for release into the community on any basis. His Honour noted that in the course of the evidence put before him during the review a number of options had been canvassed that could increase the respondent's potential for release at the next review. His Honour expressed the view that a number of matters should be considered for inclusion in any treatment or management plan for the respondent over the following 12 month period namely:
1.Moving the respondent to the Eastern Goldfields Regional Prison (EGRP);
2.Placing the respondent on a waitlist for public housing either directly or through the Dangerous Sexual Offender Support Accommodation Program (the Program) run by Uniting Care West (UCW);
3.Attempting to identify a male indigenous mentor for the respondent;
4.Providing educational skills training to improve the respondent's prospects for employment; and
5.Allowing day release or participation in work parties.
The fourth and most recent review was conducted by Corboy J. In deciding not to rescind the continuing detention order his Honour said the following:
I concluded that the community could not be adequately protected if the CDO was rescinded and a supervision order was made. In my view, the evidence in the review established that the respondent had only a rudimentary understanding of the steps required to manage his risk of offending. I agreed with the finding made by Hall J in the third review that a high level of external control and supervision would be required if the respondent was to be released from custody. Plainly, the necessary degree of supervision requires that the respondent be provided with supervised and supported accommodation.
In relation to the plans to assist the respondent's release to the community that were referred to by Hall J in the third review, the evidence disclosed that arrangements had been made for the respondent to be transferred to the EGRP and he was wait listed for public housing in Kalgoorlie. A possibility for future accommodation in Perth had also been identified. However, there was no evidence that attempts had been made to identify a culturally appropriate mentor for the respondent or that he had been able to participate in skills training or day release or work participation programmes. Obviously, those are matters that would facilitate his progress towards release. It was also of concern that the respondent may not be able to access individual counselling while at the EGRP. It was apparent from Dr Wojnarowska's evidence that the respondent would benefit from ongoing psychological counselling, preferably on an individual rather than a group basis.
In the fifth and most recent review in November 2019, Derrick J was satisfied to a high degree of probability that there was an unacceptable risk that if Mr West was not subject to a continuing detention order or a supervision order he would commit a serious sexual offence. Accordingly his Honour found that Mr West remained a serious danger to the community within the meaning of s 33(1)(b) of the DSO Act.[26]
[26] The State of Western Australia v West [No 6] [2019] WASC 427 [221].
It is inherent in the finding made by Derrick J that he was satisfied that Mr West had a history of committing serious sexual offences. The reason why his Honour found there was an unacceptable risk was that:
(a)Mr West's acceptance of responsibility for his offences remained limited, he did not accept that he is a sexual offender, and his disposition was unlikely to change;[27]
(b)Mr West only had a basic understanding of the factors underlying his offending. His self‑management plan was rudimentary and primarily based on avoidance;[28] and
(c)the oral evidence from the independent consultant forensic psychiatrist, Dr Gosia Wojnarowska, was that, in her opinion, the respondent remained at a very high risk of sexual offending if he was not subject to a supervision order or a continuing detention order.[29]
[27] The State of Western Australia v West [No 6] [2019] WASC 427 [218].
[28] The State of Western Australia v West [No 6] [2019] WASC 427 [219].
[29] The State of Western Australia v West [No 6] [2019] WASC 427 [220].
Derrick J then went on to find:
(a)it was clear from the evidence given by Dr Wojnarowska and Dr Tara Yewers, a counselling psychologist with the Department's Forensic Psychological Service, that Mr West has only a basic understanding of the factors underlining his offending, that he continues to minimise the seriousness of his offending, and his acceptance of responsibility for the offences is at best limited. This was the situation that existed at the time of the last review;[30]
(b)it was also clear from the evidence of Dr Wojnarowska and Dr Yewers, and a report from Ms Kara Cassam, a Community Offender Monitoring Unit team leader, that Mr West's self‑management plan remained simplistic and was based primarily on avoidance (not drinking alcohol; walking away from anyone who offers him alcohol; walking away from women; staying at home, watching television and listening to music);[31]
(c)there had been a recent shift in the attitude on the part of Mr West to reengage with the Forensic Psychological Service. However, Mr West had for all intents and purposes not engaged in any substantial psychological treatment since the last review;[32]
(d)very little progress had been made in identifying a long‑term culturally appropriate mentor for Mr West, and it did not appear that one could be identified and engaged long-term;[33]
(e)Mr West had since the last review been able to engage in some limited forms of employment, but had not been granted day release or engaged in work party participation or participation in activities and the community pursuant to s 95 of the Prisons Act 1981 (WA). His health issues may have impacted on the ability of the authorities to implement some or all of the strategies. Mr West's overall state of health, which was then stable, had deteriorated quite significantly since the last review. However, his generally poor state of health does provide him with an additional good reason to abstain from alcohol, which he appears to appreciate;[34]
(f)Mr West, as revealed by a statement to Dr Wojnarowska that if released he would not watch pornography because he finds it too stimulating, has developed some, albeit very limited, insight or awareness into his own sexual functioning since the last review;[35] and
(g)the most significant change in Mr West's circumstances since his last review is that there is now Uniting Care West supported accommodation available to him, which accommodation is unfortunately unsuitable because of the proximity of the accommodation to housing in which numerous young females aged 11 to 18 years live.[36]
[30] The State of Western Australia v West [No 6] [2019] WASC 427 [228],
[31] The State of Western Australia v West [No 6] [2019] WASC 427 [229].
[32] The State of Western Australia v West [No 6] [2019] WASC 427 [230].
[33] The State of Western Australia v West [No 6] [2019] WASC 427 [231].
[34] The State of Western Australia v West [No 6] [2019] WASC 427 [232], [236] ‑ [237].
[35] The State of Western Australia v West [No 6] [2019] WASC 427 [235].
[36] The State of Western Australia v West [No 6] [2019] WASC 427 [238] and [242].
Derrick J found, in all the circumstances, he was not satisfied that the community could be adequately protected by releasing Mr West on the proposed supervision order for three broad reasons.
First, because he was not satisfied that the proposed accommodation was suitable.[37]
[37] The State of Western Australia v West [No 6] [2019] WASC 427 [241] ‑ [247].
Second, he had formed the opinion that Mr West will still be at a high risk of committing serious sexual offences if he is released on a supervision order. This was because his Honour found the evidence of Dr Wojnarowska was that if Mr West was released on a supervision order containing the proposed conditions, including all the external constraints embodied in the conditions, and if it is assumed that the conditions were implemented and put into effect with a degree of intensity appropriate to Mr West's case, Mr West would still be at a high risk of committing a further serious sexual offence (being approximately a 25% chance) which was most likely to be an offence involving some form of sexual penetration against a vulnerable younger teenage girl within the next five years.[38]
[38] The State of Western Australia v West [No 6] [2019] WASC 427 [240] and [248].
Third, because Mr West had not satisfied his Honour that he would substantially comply with the standard conditions of a supervision order. Although his Honour was satisfied that Mr West would substantially comply with the standard condition that he comply with any reasonable direction of a Community Corrections Officer, his Honour was not satisfied on the balance of probabilities that Mr West would, if released on a supervision order, substantially comply with the standard condition that he not commit a sexual offence as defined in s 36A of the Evidence Act 1906 (WA). In particular, given the broader range of sexual offences that fall within the definition of 'sexual offence' contained in s 36A, his Honour found the likelihood of Mr West committing such an offence if released on a supervision order was greater than him committing a serious sexual offence.[39]
[39] The State of Western Australia v West [No 6] [2019] WASC 427 [240] and [253] ‑ [255].
Derrick J recommended that, in respect of Mr West's ongoing management and treatment while he remains in custody and in light of his recent change in attitude, efforts be made to continue to engage him in psychological counselling with a view to further developing, to whatever extent is possible, his understanding of, and insight into, the underlying causes of his offending, and focus on further developing Mr West's current basic self‑management strategies.
His Honour also recommended that:
(a)efforts should continue to be made to identify a culturally appropriate mentor for Mr West who could support him while he remains in custody, and in the event of his release at some point in the future, when he is in the community;
(b)Mr West should be permitted to participate in skills training or day release or work participation programs;
(c)a referral to the NDIS and an ACAT assessment should be pursued to whatever extent is possible whilst Mr West is in custody to ascertain if he is able to obtain long‑term support and assistance in the form of NDIS assistance or some form of aged care package in order to function well in the community;
(d)efforts should continue to identify and obtain suitable supported accommodation for Mr West so that if the court concludes at the next review that he is otherwise suitable for release he will be able to be released;
(e)subject to Mr West's views, his health issues and the availability of psychological counselling, Mr West should again be transferred to the Eastern Goldfields Regional Prison so that he can be closer to his extended family; and
(f)in accordance with the recommendations of consultant clinical neuropsychologist, Dr Elizabeth Vuletich, Mr West's cognitive condition should be monitored and reviewed in 12 months to explore any changes in his cognition.
6.0 Evidence before the court in this review
At the review hearing the applicant tendered, without objection, the following into evidence:
(1)volume 1 of a book of materials dated 6 October 2021, containing a copy of the application to review detention under the continuing detention order, a chronology of offending prepared by the State Solicitor's Office, various Department of Justice prison records, and medical reports and records ranging from 4 December 2019 to 19 September 2021. Volume 1 also contains reports prepared for previous DSO Act hearings;
(2)volume 2 of a book of materials dated 8 February 2022 containing a neurological report of Dr Vuletich dated 1 April 2021, a community supervision assessment of Ms Trudy Hill dated 2 February 2022, a treatment progress report of senior counselling psychologist, Ms Joanne Collyer, dated 3 February 2022, and a psychiatric report of Dr Wojnarowska dated 7 February 2022;
(3)a further report of Ms Collyer dated 2 June 2022;
(4)a further report of Dr Wojnarowska dated 3 November 2022;
(5)an updated community supervision assessment of Ms Jodii Nichols dated 1 June 2022, and a further updated community supervision assessment of Ms Nichols dated 8 November 2022; and
(6)an email from Ms Aimee Goode, a team leader from the Community Offender Monitoring Unit, to Dr Joy Rowland, the director of medical services, corrective services, sent on 11 February 2022, and Dr Rowland's email in response to Ms Goode.
At the review hearing, Dr Wojnarowska, Ms Collyer and Ms Nichols were called by the applicant to give oral evidence.
Dr Wojnarowska was responsible for assessing Mr West for the purposes of, and provided evidence on, the initial application and the second, third, fourth and fifth reviews.
Mr West did not adduce any evidence on the review.
7.0 The evidence relevant to matters that must be considered in a periodic review
7.1 The respondent's history of serious offending (of sexual offences) and personal circumstances
7.1.1 The respondent's family circumstances
Mr West is a 57-year-old indigenous man whose home and country is on land between the Gibson Desert and the Great Victoria Desert north‑east of Kalgoorlie. He is the eldest of eight children and speaks both English and the language of his People. It appears his attendance at school was sporadic. He has six children. He generally has contact on a daily basis via the telephone with his two adult daughters. Whilst he was in the Eastern Goldfields Regional Prison he regularly had visits from his family. He is an artist and was engaged to paint a mural in the Eastern Goldfields Regional Prison whilst he was in that prison from 11 March 2020 until he was transferred to a prison in Perth on 13 January 2022 for the purposes of a further review of the ongoing detention order.
Mr West has preferred to be housed at the Eastern Goldfields Regional Prison as it enables him to feel connected to country and allow for social visits from family.
7.1.2 The respondent's history of convictions of serious offences
Mr West has a history of having committed sexual offences that are specified as serious offences in sch 1 of the HRSO Act. These offences occurred on his country, and were summarised by Derrick J in the 2019 review as follows:[40]
1.On 18 March 1996 the respondent was convicted of four offences of sexually penetrating a child between the ages of 13 and 16 years. The respondent committed these offences over a period of four days in July 1995. All of the offences were committed against the same 15‑year‑old female complainant, with two of these offences being committed during the same incident. The form of sexual penetration the subject of three of the offences was penile/vaginal. The form of sexual penetration the subject of the fourth offence was digital/vaginal. The respondent was sentenced to a total term of imprisonment of 2 years and 19 weeks for the four offences;
2.On 15 August 2005 the respondent was convicted of sexually penetrating a child between the ages of 13 and 16 years. The respondent committed this offence on an unknown date between 1 April 2004 and 28 June 2004. The female complainant was 15 years old. The form of sexual penetration was penile/vaginal. The respondent was sentenced to 2 years and 4 months imprisonment for the offence;
3.On 3 November 2006 the respondent was convicted of one offence of sexually penetrating a child over the age of 13 and under the age of 16. On 10 April 2007 the respondent was convicted of an offence of indecently dealing with a child over the age of 13 and under the age of 16. The respondent committed the offences on two different occasions between 10 October 1995 and 14 November 1995. He committed the sexual penetration offence against a 14‑year‑old female, the form of sexual penetration being penile/vaginal. He committed the indecent dealing offence against a 13‑year‑old male, the indecent dealing being comprised of an attempt by the respondent to place his penis in the complainant's anus. The respondent was sentenced to a total of 6 years imprisonment for the offences.
In addition, in March 2014, while he was subject to the continuing detention order, the respondent was convicted of one offence of sexually penetrating a child. The respondent committed this offence on 5 April 2001. He was sentenced to 2 years imprisonment for the offence.
7.1.3 The respondent's behaviour in prison since the last review
[40] The State of Western Australia v West [No 6] [2019] WASC 427 [32] ‑ [33].
In relation to Mr West's behaviour in prison since the last review, he has been described by prison staff as an individual who at times can be a management issue due to his lack of patience, resulting in frustration when his demands are not immediately met. He can be immature and often acts like a teenager. He, however, is generally described as calm and compliant, although he does sometimes struggle with regulating his emotions and complying with prison‑based rules.
Although he has not received any formal charges, he had been involved in several specified incidents whilst he was located at the Eastern Goldfields Regional Prison. Since his placement at Acacia Prison, he has not incurred any negative behaviour reports, incidents or charges. He is reported to be polite and respectful.
Since his last review, Mr West has been urine analysis tested on four occasions with all results being negative.
7.2 Mentor engagement
Since June 2022, Mr West has regularly engaged with an Aboriginal mentor via the HRSO Supported Accommodation Program contracted to Uniting WA. It is clear from the evidence set out in 7.5, 7.6 and 7.7 of these reasons that Mr West's engagement with his mentor is positive, and that his mentor is likely to be a positive influence on him if Mr West is released on a supervision order.
7.3 Dr Vuletich's neuropsychological assessment reports
Dr Vuletich first conducted a neuropsychological assessment of Mr West in 2019. The majority of Mr West's test scores in 2019 were found to be within the extremely low to borderline range and his results indicated, among other things:[41]
1.An overall intellect in the extremely low range;
2.Mild difficulties with his basic verbal attention, although not significantly impaired;
3.Compromised verbal working memory ability;
4.Limited literacy, with word reading well below expectation even in the context of his reported approximate seven years of schooling (reading age equivalent of a 6‑year‑old);
5.Pervasive deficits in his capacity to encode new material into memory (both verbal and visual), with rapid forgetting and evidence of embellishment in his recall (confabulation);
6.Rigidity in his thinking and clearly compromised ability to flexibly shift attention; and
7.Qualitative features of poor planning and perseveration, although perhaps surprisingly no clear behavioural features of impulsivity (on this occasion).
[41] The State of Western Australia v West [No 6] [2019] WASC 427 [168].
Dr Vuletich recommended in 2019, given the well‑documented and multiple significant risk factors for cognitive decline, Mr West should be reviewed in 12 months.
Dr Vuletich conducted a review of Mr West on 4 December 2020. She found that at that time his IQ was broadly in keeping with his results in 2019. She did, however, find that there were two subtest scores (similarities and digit span) where his performance was significantly lower than it had been in 2019. She found that his verbal working memory had declined, and his verbal abilities showed some signs of reduced comprehension. In particular, there were notable reductions in his test performances within the domain of verbal working memory, as well as in his capacity to encode structured and meaningful verbal material into memory.
Dr Vuletich reported that it remained the case that she could not properly exclude the possibility of a mild intellectual deficit, although as she had flagged in 2019, if this had been the case, she would have expected concerns to have been raised earlier throughout his past forensic evaluations which do not appear to be the case. She also stated that as she mentioned in 2019, it would appear that his current deficits occur in the background of possible low cognitive reserve (though not necessarily intellectual deficit).
Her opinion as at the date of her report on 1 April 2021 was that:
(a)Mr West is a man of likely very low cognitive reserve, as well as limited educational opportunity and English proficiency;
(b)over time Mr West's cognition has further eroded secondary to contributions from substance abuse, multiple concussive events, (and she could not discount the possibility of a more noteworthy traumatic brain injury, chronic severe metabolic disease, and significant vascular conditions and related surgeries); and
(c)as found in 2019, Mr West is considered to have an acquired brain injury due to multiple causes and she was now more convinced that he would fulfil diagnostic criteria for a neurocognitive disorder.
Dr Vuletich also importantly stated that she continued to hold the view that Mr West's cognitive deficits may have implications for his future treatment and compliance (including with medication, GPS monitoring, reporting obligations, and capacity to learn and retain relevant information from any orders or contracts). Further, that she continued to hold concerns about his capacity to independently manage, particularly with the specific rules in place without significant oversight and supervision.
Dr Vuletich also importantly stated that there may be an evolving need to further consider future planning for Mr West (for example whether, or at what stage, there may be a need for formal substitute decision‑makers). She was concerned that Mr West may not necessarily, nor independently, fully comprehend or retain information outlined in any orders should a continuing detention order be considered no longer appropriate. For this reason, he will require very close monitoring and more environmentally managed supports.
7.4 The respondent's general health and recent ACAT and NDIS assessments
At the last review, Derrick J recorded in his reasons that:[42]
In November 2018 the respondent underwent cardiac surgery for the review of his aortic and mitral valve replacement (the replacement having occurred in 2000) and a single coronary artery bypass. He has recovered well.
The respondent has other multiple health problems including diabetes type 2, renal problems associated with his diabetes, hyperlipidaemia, hypothyroidism, asthma and chronic obstructive pulmonary disease. His conditions are controlled by medication. His general state of health is currently stable.
The respondent has not been prescribed antidepressant Selective Serotonin Reuptake Inhibitor (SSRI) medication which was recommended as an anti‑libidinal medication.
[42] The State of Western Australia v West [No 6] [2019] WASC 427 [43] ‑ [45].
At that time, Mr West's medical classification in the Department was Stage III - Terminal illness due to a combination of health issues, primarily because of his Stage IV cardiac failure. On 15 June 2022, his classification was de‑escalated to Stage II. It appears that occurred because his health issues were stable.
Mr West also has neurocognitive deficits which impact on his adherence with his medication regime.
As recommended by Derrick J in the last review, an Aged Care Assessment Team (ACAT) assessment was conducted by a consultant geriatrician, Dr Amanda Boudville, a trainee in geriatric medicine, Dr Carla Davies, and a social worker, Ms Samantha Whittle, on 2 June 2022. In the ACAT assessment it is reported:[43]
Mr West is a 57 Year old Aboriginal gentleman who likely is of poor intellect with limited education and has a number of acquired brain insults from concussive events and substance abuse in his adolescent and young adult years. This is the more probable cause of his poor scoring in cognitive assessments compared to a major neurocognitive disorder such as dementia. Mr West will require support to transition from the prison environment to the community if released particularly given the length of his incarceration and alien environment in which he will need to complete his parole away from his support network. He will required assistance with medication adherence, transport, support to attend medical appointments and assistance with complex financial decisions. At present he does not have a diagnosis of a geriatric syndrome and therefore aged care services would not be the most appropriate provider of this support. Rather we recommend an application to the National Disability Insurance Scheme for consideration.
[43] Update Community Supervision Assessment dated 8 November 2022, 3.
On 23 August 2022, Ms Nichols submitted an application to the National Disability Insurance Agency (NDIA) on Mr West's behalf. This was not his first application. By letter dated 16 September 2022, the NDIA determined that Mr West did not meet the disability requirements for National Disability Insurance Scheme (NDIS) support, specifically that he did not need supports to effectively move around, communicate, socialise, learn, look after himself or organise his life. The author of the letter from the NDIS noted that whilst Mr West may complete tasks more slowly or in a different way to other people, the evidence does not indicate that he cannot do so without support.
7.5 Psychological intervention
Prior to his last review, Mr West had seen psychologist, Ms Julia Morrison, on three occasions.
Since his last review, Mr West continued to engage in intervention with Ms Morrison.
In her report dated 3 February 2022, Ms Collyer recorded that Mr West had attended eight psychological appointments with Ms Morrison between 14 November 2019 and 22 December 2021. Ms Morrison reported that Mr West's motivation was noticeably higher in the period leading up to his (last) annual review, and that Ms Morrison acknowledged the difficulties of interacting with a traditional aboriginal man as a white woman.
Ms Morrison reported to Ms Collyer that:
(a)relapse prevention appeared to be an area Mr West remained ambivalent about;
(b)Mr West tended to skim over discussion of potential issues and triggers to substance use, and presented simplistic statements with minimal depth to his responses;
(c)Mr West struggled to adequately consider alternative pro‑social activities outside of his artwork;
(d)it seemed difficult for Mr West to identify areas of change in order to successfully reintegrate into the community and manage his risk; and
(e)Mr West would not discuss sex or sexual offending with her.
Whilst he was still at Eastern Goldfields Regional Prison, Ms Collyer arranged a telephone interview with Mr West on 6 January 2022. In this interview, Ms Collyer reports that Mr West:
(a)was dismissive of his offences, attributing them to stress caused from a relationship breakdown and excessive substance use;
(b)responded to questions regarding his sexual thoughts, albeit in a limited fashion;
(c)stated that counselling would not assist him 'to do the right thing', but did acknowledge that it could benefit to assist him with managing issues that might arise in an intimate relationship;
(d)stated that his offending conduct occurred when he was stressed, drank too much or was feeling upset;
(e)denied interest in further substance use due to his health and therefore, did not see the need for a relapse prevention plan; and
(f)advised that the absence from lands and related cultural activities could be distressing at times.
When Mr West was asked to identify what he had discussed in intervention sessions with Ms Morrison, Mr West stated that they had 'just started really' and he sees her only 'now and then'. He stated that he knows the court wants him to do the right thing but he viewed counselling would not assist him to achieve that. Instead he identified the importance of getting a job such as what he does now painting murals, however, he could not identify how this may occur in the community. He described repeatedly that if he is left alone to his painting and listening to country music with the company of a partner, family member or fellow countrymen he will not get into trouble. He stated that those girls are gone now, in reference to victims located at his community, and that they would not be in Perth where he believed he may need to locate for the purposes of accommodation. He did acknowledge that he would not be allowed to go near young girls again.[44]
[44] Ms Collyer's report dated 3 February 2022, par 17.
Ms Collyer expressed the opinion in her February 2022 report that Mr West has not made further progress in treatment since the last review. He is not responsive to the treatment process nor is he motivated to make changes in line with identified criminogenic treatment needs. He has maintained a rudimentary risk management plan. His cognitive profile indicates difficulties with comprehension and retention, which has implications for his capacity to undertake psychological intervention in a meaningful way and is a significant responsivity barrier to treatment. In addition, he tends to minimise and justify his offending.
Ms Collyer provided an addendum report dated 2 June 2022. In her report she indicates that Mr West had attended nine psychological appointments with Ms Morrison, one of which was face‑to‑face between 14 November 2019 and 2 June 2022.
In her report Ms Collyer indicates that Mr West had made negligible progress in treatment since the last annual review and that this appears unlikely to alter.
Ms Collyer also importantly stated that although Ms Morrison had established a reasonable rapport with Mr West, Ms Morrison observed that Mr West had general difficulties with psychological concepts and self‑reflection which appeared to be exacerbated by limitations inherent in attempting to provide culturally appropriate intervention regarding sexual offending with a traditional Indigenous man. Ms Morrison formed the opinion that the potential shame and embarrassment in discussing sexual matters in detail, which would not occur culturally, were likely forming a barrier and impacting Mr West's responsivity to counselling. When Ms Collyer gave oral evidence she was asked whether a male psychologist was available within the Department to provide psychological services to Mr West. In response, she stated that there were two male psychologists employed within the Forensic Psychology Intervention team, and one of those attends the prisons. The two male psychologists also provide community services, one of which who works in an office, and it would depend on their availability as to whether they were able to provide any services to Mr West in the future.[45]
[45] ts 682 ‑ 683.
In her report Ms Collyer also noted that Mr West tended to use avoidance and denial as a means of managing the shame and emotional discomfort associated with his offending. Ms Collyer inferred that this has been a consistent theme, with Mr West demonstrating ongoing avoidance by dismissing discussion associated with his offending and managing his future risk of offending.
Ms Collyer also noted that regarding discussion of potential risk scenarios, Mr West reportedly tends to apply simple and limited solutions and strategies. For example, he often comments that he will simply not drink alcohol. He nonetheless agreed to attend Alcoholics Anonymous meetings in the community for support with alcohol abstinence during the course of an order. Mr West informed Ms Morrison that he attributed problematic alcohol to port and fortified wine, believing consumption of beer was less problematic for him regarding his offending behaviours. He identified that a large part of socialisation with family is based on gathering around a fire drinking and yarning, and noted that he does not want to abstain from this social activity permanently.[46]
[46] When Dr Wojnarowska gave oral evidence she was asked about this statement made by Mr West, and wishing to return to his country and engage with his family in yarning and drinking around a campfire. She stated that Mr West had also told her of his wish but that he had said he would like to do this one day when he was not subject to an order; ts 663.
In her oral evidence, Ms Collyer conceded that Mr West understands the significance of abstinence of alcohol in terms of his risk of reoffending and he was very clear that he would not be able to drink during the course of his order. She also stated that Mr West responds quite well to informal conversations and would be assisted by a mentor to reinforce strategies to avoid alcohol. When asked what strategies could be used by a treating psychologist if he was to be released, she said:[47]
[A]n example might be going through some scenarios with Mr West and discussing alternative refusal skills. So learning how to communicate a refusal skill such as, no, I can't, or talking to them about where they might be able to go instead. Perhaps talking to them about having an alternative beverage just to kind of occupy their hands, so to speak. Or they may discuss with them some distress tolerance skills such as urge surfing which basically talks about how you might feel the urge to drink alcohol and then give them some strategies to ride that urge out such as through a breathing technique or things like that.
7.6 Dr Wojnarowska's evidence
[47] ts 681 ‑ 682.
Dr Wojnarowska has interviewed Mr West for the purposes of restriction proceedings under the DSO Act in 2015, 2016, 2017, 2018 and 2019. She has also interviewed Mr West for the purposes of this review on two occasions. The first interview was conducted on 20 January 2022 by video link and the second interview was conducted in person at Acacia Prison on 12 August 2022. Each interview was for a duration of two hours.
Dr Wojnarowska produced two written reports for the purposes of this review, a report dated 7 February 2022 and a report dated 3 November 2022.
In her report dated 3 November 2022, Dr Wojnarowska states that Mr West's psychiatric diagnoses have not changed since her prior assessments of Mr West, which are Antisocial Personality Disorder, Alcohol Use Disorder and sexual deviance (sexual interest in adolescent females), however the full diagnostic criteria for paedophilia are not met (in that he has no interest in prepubescent children).
As to the risk of Mr West reoffending, in both her written reports in 2022, Dr Wojnarowska stated that there had been no change since her last assessment. If Mr West were to reoffend, he is likely to commit similar offences to those in the past. His offending in general is opportunistic, although his encounters with young, intoxicated females do not appear to be accidental and have occurred in the context of predatory behaviour. Despite his assurances that he is not interested in adolescent females, his history suggests otherwise.
In her most recent report dated 3 November 2022, Dr Wojnarowska stated:
Mr West's offending behaviour was driven by his high sexual drive combined with general disregard for women and impulsivity facilitated by disinhibition while intoxicated. The offending behaviour is not likely to occur within a short period of time after release, as he is unlikely to resume alcohol consumption immediately. The harm to the victims will be predominantly psychological. However, he has been known to carry weapons and he has a history of physically assaulting his intimate partners. The most probable victims will be young females who are unsupervised at night time and who use alcohol or drugs either recreationally or to deal with withdrawal symptoms. Mr West is likely to coerce the victim by offering drugs, alcohol or money. His accessibility to possible victims is likely to increase in remote aboriginal communities and certain areas of the Perth metro area where children are not being supervised at night time.
Dr Wojnarowska is of the opinion that Mr West's risk factors include antisocial personality, psychopathic traits, sexual deviance and alcohol use disorder and that he has been resistant to therapeutic interventions due to his deeply entrenched beliefs about women, sense of entitlement and possibly shame. However, she is also of the opinion that his recent admission to offending and acceptance of responsibility offers a new perspective on Mr West's insight and prognosis (in that he now admits he was a sexual offender).
As to Mr West's engagement in treatment, Dr Wojnarowska, in her most recent report, states that his engagement in the offered treatment has been largely limited although with some recent improvement. More specifically, there is little evidence that even when engaged, his insight or attitudes towards women would alter. Importantly, she states his management in the community would depend upon the structure that is provided around him, and his preparedness to engage sufficiently in counselling and develop strategies to reduce his risk of reoffending.
Dr Wojnarowska made an evaluation of Mr West on 20 January 2022 and 12 August 2022. She conducted a Sexual Violence Risk Assessment by applying three tools and models:
(a)the Static‑99R tool which correlates demographic and criminal history information with sexual recidivism in adult male sex offenders;
(b)the RSVP, which is used for men and women aged 18 and older who have a known or suspected history of sexual violence that assesses dynamic variables which are those characteristics of sex offenders that are capable of change and are divided into stable and acute; and
(c)the 3‑Predictor Model which is based on a retrospective analysis of file data of 1838 adult male WA Indigenous offenders, who since 1987 have been identified as requiring either a violent or sexual offender program. This study indicated that there are three factors that best predict sexual reoffending; unrealistic long-term goals, unfeasible release plans and poor coping skills prior to release.
The results of these diagnostic tools were interpreted by Dr Wojnarowska as follows.
In respect of the Static‑99R results, Dr Wojnarowska found when she administered the test in January 2022 Mr West's sexual violence risk assessment score under the Static‑99R (2016 revision) was 7, which places him in the '(IVb) Well Above Average Risk' category, and equated to a recidivism rate expected to be seven times higher than that of a typical sexual offender. This means that out of 100 sexual offenders with the same risk score, between 36 and 45 would be charged or convicted of a new sexual offence in the community.
Dr Wojnarowska noted that Static‑99R does not measure all relevant risk factors and Mr West's recidivism risk may be higher or lower than that indicated by Static‑99R.
In her November 2022 report, Dr Wojnarowska stated that there had been no change in Mr West's Static‑99R score since her last report dated 7 February 2022.
In 2022 when Dr Wojnarowska applied the RSVP to identify Mr West's risk factors, she identified the following factors on both occasions:
(a)extreme minimisation and attitudes that condone sexual violence: During his assessments in the past he had expressed views about his offences and women that would belong to the category of extreme minimisation and justification, and continued to deflect responsibility for his offending. In 2002 there was some shift in his acceptance of responsibility, albeit partial; he now admits he was a sexual offender and had sex with an underage girl. However, he also expressed the view that a 15 year old female should be considered an adult;
(b)problems with self-awareness: He has significant deficiencies in this area which are associated with his narcissistic personality traits, grandiose sense of self, and self‑serving attitudes. These characteristics are unlikely to respond to treatment;
(c)problems with stress and coping: Mr West identified stress, which he experienced in his relationships, as relevant to his alcohol consumption and therefore relevant to his offending. He did not appear to have a strategy to deal with conflictual situations or any other life stressors apart from walking away from them;
(d)problems with substance abuse: Alcohol is a major factor in Mr West's risk of reoffending. Since he had surgery he has been declaring his readiness for full abstinence in the community. He is confident that he could avoid the company of those who drink. However, on specific inquiry he admitted that most, if not all, of his relatives are heavy alcohol drinkers;
(e)problems with intimate relationships: Mr West has always struggled to maintain intimate relationships. This was due to his misogynistic attitudes, alcohol use and propensity for violence. This factor will remain important in managing Mr West in the community: both scenarios carry a risk. If he remained single, his sexual interest may divert inappropriately. However, an intimate relationship would always carry a risk of increased stress, non‑sexual violence and jealousy, which are all causal factors in sexual violence;
(f)problems with employment: Mr West had managed to secure a job in the Eastern Goldfields Regional Prison, and was reportedly a good worker. He may, however, struggle to secure a job outside of prison and therefore, a continuation of his artwork may be a more realistic solution to his boredom in the community;
(g)problems with planning: Mr West has a well-documented history of impulsivity as evidenced by his offending and past prison behaviour. His recent neuropsychological assessment indicates impairments in most of his cognitive function, including executive functioning; and
(h)problems with treatment: The attempts at engaging Mr West in treatment in the past were unsuccessful. His rigid personality style, lack of insight, cognitive deficits and cultural factors are barriers in achieving long‑term therapeutic goals.
As to violent ideations, Dr Wojnarowska found there had been no recorded incidents of violence in the last three years and Mr West strongly denies any violent thoughts. Further, and importantly, Dr Wojnarowska recorded in both her reports that Mr West's compliance with prison rules has improved over the years. In her most recent report, Dr Wojnarowska recorded that there is a possibility that when provided with supports he would adhere to his order conditions.
Dr Wojnarowska applied the three risk factors of the 3‑Predictor Model assessment on both occasions when she saw him in 2022. Her results in the most recent assessment of each of the three risk factors were as follows:
(1)unrealistic long-term goals: It appears that he does have some realistic long-term goals. His goals are to continue with his artwork. He expressed a readiness to be compliant with the order conditions, including abstinence from alcohol, reporting obligations, GPS monitoring and curfew. He denied any intention of engaging a relationship with a woman from the metro area. However, his report that he would like to eventually return to his home community, given the history of his offending in the community, appears to be an unrealistic plan. In addition, he was considering employment as a council worker, but given his medical conditions it is unlikely he will be fit enough to engage in physical work.
(2)unfeasible release plans: Mr West has a reasonable release plan. He reported that he would engage in psychological counselling and would comply with any other requirements of his order. He stated during the interview that he would like to look after his family and support his son in abstaining from alcohol and drug use. Given Mr West's own limitations, it is unlikely that he would be able to support or supervise his son in this matter. There are also concerns that Mr West's lack of acknowledgement that contact with his family, who are reportedly heavy drinkers, may lead into relapse of alcohol use.
(3)poor coping skills before release: Mr West has spent over 10 years in a highly structured and contained environment due to his sex offender status and therefore, he is highly institutionalised which is likely to affect his reintegration into the community. However, his coping skills appear to have improved over the years and there have been no major prison incidents in the last three years. His random drug and alcohol screens have been negative, and he functions quite well demonstrating emotional and behavioural stability the majority of the time.
It is Dr Wojnarowska's opinion that Mr West continues to be at high risk of serious sexual offending if not subject to a continuing detention order or a supervision order under the HRSO Act, but further detention is unlikely to better the outcome in his case because his attitudes and insights are unlikely to change even when he is meaningfully engaged in counselling. Therefore, it is her view that the risk reduction would be related to external supervision rather than expecting Mr West to achieve a state of self‑management.
It is also Dr Wojnarowska's opinion that the 3‑Predictor Model assessment indicates that Mr West is suitable for community management under a supervision order subject to the standard conditions and the additional conditions proposed by the Department of Justice.
In her report, Dr Wojnarowska stated that she placed more weight on the 3‑Predictor Model assessment than the other assessment tools. When Dr Wojnarowska gave oral evidence she was asked to explain why. In an exchange with counsel for the applicant, Dr Wojnarowska said in response:[48]
This is for the cultural reasons. Mr West is a traditional Aboriginal man with limited cognitive abilities. He also has a medical condition which ‑ although there is a ‑ the size of improvement, nevertheless, he is still in category 2 of heart failure. So the three-predictor model just concentrates on the very simple measurements of one's life, and it appears that most of those factors are in place for him. He has got accommodation. He does have a ‑ he does have goals and he ‑ he will have support in the community, and his future plans are realistic. So we are not, sort of, talking about full rehabilitation of Mr West and making him ‑ and, in fact, I do not think that his risk will ever be lower than the current risk. But I am referring to his manageability and all the factors that has been already placed for him in order to manage him.
Okay. Now, your opinion clearly is that the risk, although high, is manageable in the community?‑‑‑Yes, that's my opinion.
And is that because manageability of risk is not directly correlated to whether the risk is high, low, medium?‑‑‑It's not. It's not. It's ‑ it's all about the external and internal factors associated with the case.
[48] ts 666 ‑ 667.
In respect of the proposed conditions, it is Dr Wojnarowska's firm opinion that although Mr West's risk of committing a serious sexual offence in the community is high, the monitoring regime provided for in the proposed conditions are likely to be adequate to manage the risk.[49]
[49] ts 667 ‑ 668.
When giving oral evidence, the basis of Dr Wojnarowska's opinion became absolutely clear. It appears that Dr Wojnarowska formed this view because of the following factors which indicate that Mr West has appropriate accommodation, realistic goals, and the proposed conditions provide for an appropriate monitoring regime for his risk factors:
(a)Mr West's medical conditions appear to have resulted in his limited mobility, and although alcohol is a major factor in the risk of offending, Mr West has indicated that his health concerns are major factors in him maintaining and being prepared to maintain abstinence from alcohol in the community;
(b)it is proposed by the conditions that Mr West reside in Perth away from adverse pro‑social influences from members of his family who are heavy drinkers;
(c)the Community Offender Management Unit and the Western Australian Police have measures in place through the proposed conditions to ensure that Mr West maintains abstinence from alcohol;
(d)Mr West has been provided with a culturally appropriate mentor who will be able to assist him in maintaining his abstinence; and
(e)the proposed conditions contain a number of conditions that properly focus on supervision, and include counselling. In particular, he is willing to engage with his treating psychologist and, although he does have significant cognitive limitations and personality limitations, his mental state and his compliance with the conditions of the proposed supervision order would be monitored.
If Mr West is to be released on the proposed supervision order, although Mr West indicates that his sexual drive has significantly reduced over the years, Dr Wojnarowska recommends that, although because of Mr West's medical conditions an anti‑libidinal treatment with testosterone suppressing medications is not indicated, a trial of antidepressant medication (to reduce his sex drive) should be considered.
Dr Wojnarowska also recommends that consideration should be given to engage in support agencies, including Aboriginal services or other community services in the area of his future residence, in addition to the Uniting Care West services. She also recommends that Mr West be referred to Alcoholics Anonymous, which could occur through a direction given to him by a Community Corrections Officer.
7.7 Ms Nichols – Community Corrections Officer reports
Ms Nichols prepared two update community supervision assessment reports. In her first report dated 1 June 2022, Ms Nichols stated that Mr West had remained engaged with Uniting WA, having been first referred to the service in September 2019. He was deemed suitable and they had seen him on four occasions in 2022. Uniting WA had expressed concerns regarding Mr West's memory and ability to live independently, specifically his ability to remember basic 2/3 step instructions. Whilst they considered him to have the ability to budget, cook, clean and maintain personal hygiene, they raise concerns that those abilities may falter over time and recommended that an occupational therapy and/or an Aged Care Assessment Team (ACAT) assessment to be carried out.
An occupational therapy assessment completed in September 2019 concluded that Mr West would require high levels of support initially, should he be released into the community, particularly with cooking, planning and shopping skills, public transport training, budgeting and banking, assistance with routines such as medication and self‑care, assistance to maintain medical appointments, and linking in with activities with his countrymen, as well as leisure activities. Uniting WA advised they were not in a position to assist Mr West with developing routines like taking medication and self‑care, assistance with medical appointments (but regular blood tests), and linking with services and activities where he is likely to spend time with people in his own language group for his emotional well‑being. They did, however, advise that they could assist him with most of the remaining recommendations from the occupational therapist initially, although not long‑term.
At the time of Ms Nichols' first report, there remained no accommodation immediately available to Mr West under the HRSO supported accommodation stream.
Subsequent to the preparation of her first report, Mr West's ACAT assessment report became available. In that report it indicated that Mr West is independent with his personal care including showering, dressing and toileting. The authors of the report also found that Mr West has poor health literacy. Although he was able to give a general description of his current health conditions, including his previous cardiac surgery, his kidney disease and diabetes, he was unable to provide an INR target range or aims for blood sugar levels other than to say you do not want them too high or too low. However, he was able to plan for medication management in the community explaining he would obtain a 'Webster Pack' from a pharmacy.
In her second report dated 8 November 2022, Ms Nichols stated that two houses, via the HRSO Supported Accommodation Program, have now become available for Mr West.
Unfortunately the first of those two properties is situated in close proximity to a victim of one of Mr West's offences. For this reason, this accommodation cannot be considered to be suitable accommodation for Mr West.
A desktop spatial analysis in relation to the second property was requested from the Sex Offender Registry, Sex Crime Division of the WA Police Force.
When giving evidence on 14 November 2022, Ms Nichols informed the court that the second property presents no issues of proximity to Mr West's victims and that the desktop spatial analysis conducted by the police had indicated there had been no incident reports in respect of the address. Ms Nichols also informed the court that she had received information from the Department of Communities, Child Protection and Family Support which indicated that there were five properties known to the Department in the surrounding area where children between the ages of one and 10 reside, but none of those addresses were in the immediate vicinity of the supported accommodation address.
It is clear from this information that this supported accommodation is suitable for Mr West if released on a supervision order.
In her second report, Ms Nichols also stated that Mr West has the status of 'turn reach' with the Department of Communities and Housing which status requires the Department to provide accommodation to Mr West within 12 months of his release. However, if released on a supervision order, before Mr West could be accommodated in such accommodation, the accommodation would have to be approved by a Community Corrections Officer pursuant to the additional conditions of the proposed supervision order.[50]
[50] ts 650 and 654 ‑ 655.
In her second report, Ms Nichols stated that Mr West has engaged with an Aboriginal mentor via Uniting WA. The mentor is an employee of Uniting WA. When giving oral evidence, Ms Nichols stated that Mr West has met with his mentor on a fortnightly basis on five occasions, and has a future visit booked for 30 November 2022. She also said that she had spoken to Mr West about those sessions and he had spoken really positively about the contact and has expressed a desire to continue the relationship post-release.
Ms Nichols' second report contains proposed supervision order conditions should the court consider Mr West a suitable candidate for a supervision order.
These proposed conditions were drafted following consultation with Dr Wojnarowska on 7 November 2022.
When giving oral evidence, Ms Nichols described the role of Mr West's mentor as providing support that is not structured, but will provide him with a connection to his culture and country and is someone who Mr West can do activities with throughout the week and provide guidance to Mr West. The mentor would also work alongside Mr West's Community Offender Monitoring Unit senior case worker.
8.0 Disposition
8.1 Does the respondent remain a high risk serious offender?
The answer to this question is yes. Having considered all of the evidence relevant to the factors in s 7(3) of the HRSO Act, I am satisfied, by acceptable and cogent evidence and to a high degree of probability, that there remains at the time of this review an unacceptable risk of Mr West committing a serious offence specified in sch 1 of the HRSO Act.
Dr Wojnarowska's opinion is that Mr West remains at a very high risk of committing a serious sexual offence if he is not subject to a restriction order. Dr Wojnarowska has held this opinion on each occasion she has assessed Mr West since 2013. It is clear that her evidence should be accepted. Her opinion is supported by the results of the specialised risk assessment tools utilised by her to assess Mr West.
Dr Wojnarowska's opinion is also supported by the pattern of serious sexual offending shown to have been committed by Mr West in the past. Although his past convictions of serious sexual offences occurred at various times from in or about 1995 until mid‑2004, Mr West is now at least 18 years older than he was when he committed his last serious sexual offence, and his health is poor. His past convictions involve adolescent, vulnerable children.
Mr West's convictions summarised in [60] of these reasons were offences specified in sch 1. The chronology of these serious offences prepared by the State Solicitor's Office indicates that the majority of these offences were sexual offences involving penetration and were accompanied with acts of violence or threats of violence.
8.2 Should the court affirm the continuing detention order or make a supervision order?
As set out in 3.0 of these reasons, the established legal principles which have been recently affirmed by the plurality of the High Court in Garlett v The State of Western Australia[51] that I am bound to apply make it clear that I am to be guided by the principle of risk minimisation, that is to minimise risk of reoffending to a level that ensures adequate protection of the community, as opposed to elimination of any risk.
[51] Garlett v The State of Western Australia [2022] HCA 30; (2022) 96 ALJR 888 [105] ‑ [106] (Kiefel CJ, Keane and Steward JJ).
In 2019 in the last review, Derrick J found that Mr West's acceptance of responsibility for his offences remain limited, that he does not accept that he is a sexual offender and this disposition is unlikely to change.[52]
[52] The State of Western Australia v West [No 6] [2019] WASC 427 [218].
Although, it is the case that Mr West's acceptance of responsibility for his offences does remain limited, importantly, he does now accept that he is a sexual offender.
Mr West also accepts there are particular triggers for his offending. Dr Wojnarowska gave evidence and stated in her report dated 3 November 2022 that Mr West was able to reflect on the fact that watching pornography could be a trigger for him which would led him to thinking about sex excessively; which he recognises is a risk factor.[53]
[53] Exhibit 9, par 60; ts 663 ‑ 664.
Also importantly, Mr West accepts that the major trigger for his offending behaviour is the use of alcohol, and he has consistently expressed to all who have interviewed him for the purposes of this review that he cannot drink alcohol while subject to an order. Further, and also of importance, is that he has a motivating factor to maintain abstinence from alcohol. If he consumes alcohol, his kidney function, the condition of his heart, and the status of his diabetes are likely to deteriorate. Whilst he may not be aware of the effect of alcohol on each of these conditions, he has indicated that he knows that if he consumes alcohol it will have consequences for his medical conditions.
It is Dr Wojnarowska's opinion that further detention of Mr West is unlikely to achieve a better outcome in his case. As I understand, the point she makes is that he does not have unmet treatment needs that could be addressed in custody.
In her report dated 3 November 2022, Dr Wojnarowska stated the additional conditions proposed by the Community Offender Monitoring Unit and the reasonable directions that can be given by a community corrections officer pursuant to the standard conditions prescribed by s 30(2)(d) of the HRSO Act would likely be sufficient to manage Mr West's risk in the community. When she gave oral evidence, her opinion about the likely effect of the proposed conditions of a supervision order were more positive. It appears clear that in light of the conditions now sought to be imposed by the Community Offender Monitoring Unit as a result of consultation with her, subsequent to the preparation of her written report dated 3 November 2022, Dr Wojnarowska is now of the opinion that Mr West's risk of committing a serious sexual offence can be adequately managed in the community because of the monitoring regime that is proposed in the conditions.
I cannot make a supervision order unless I am satisfied on the balance of probabilities that Mr West has proved that he will substantially comply with the standard conditions of the order. I am so satisfied for the following reasons:
First, I am satisfied that Mr West now has a better, albeit basic understanding of the factors underlying his offending. I am also satisfied that Mr West is motivated to comply with not only the standard conditions of the supervision order, but also the additional conditions which have been formulated specifically to assist him in developing strategies to reduce his risk of offending, and to provide sufficient and adequate external supervision of him in the community to monitor his compliance.
Second, Mr West's conduct in prison over the past three years since his last review has been compliant, and he has not incurred any adverse incidents.
Third, Mr West is aware of the obligations and the restrictions that he will be placed under when subject to a supervision order, and has indicated his willingness to comply. Further, he has indicated a willingness to engage in strategies to avoid the major trigger for his offending (abstinence from alcohol). In particular, he has indicated that he is willing to attend Alcoholics Anonymous meetings.
Fourth, Mr West has available to him suitable supported accommodation and other services to enable him to transition into the community, and to provide him with access to medical care to manage his medical conditions after having spent a very long time in a highly structured and contained environment.
Fifth, Mr West has engaged positively with his approved mentor, who will assist him to maintain connections with his culture. Although Mr West is unlikely to obtain employment, I satisfied that Mr West has realistic goals to occupy his time by continuing with his artwork.
Sixth, Mr West is willing to reside in Perth and away from his community and family while subject to the supervision order.
In considering whether a supervision order will 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 adequate protection of the community, the rehabilitation of Mr West and his care and treatment, and to ensure adequate protection of the victims of the offences committed by Mr West.[54]
[54] HRSO Act, s 30(5).
I am satisfied that the conditions that have been proposed, as set out in the annexure to these reasons, would provide adequate protection of the community against Mr West's unacceptable risk of serious offending, having regard to his specific risk factors.
The conditions are comprehensive. They address Mr West's risk factors. They place onerous obligations on Mr West to report and provide information that will indicate whether he is at risk of relapsing into behaviours that may lead to serious offending. They include a suite of external constraints and monitoring measures that will allow the authorities to monitor him closely, and which have proved to be effective in such cases in the past.
They also ensure Mr West will continue to receive psychological counselling in the community to address strategies, relapse prevention and assist Mr West to increase and maintain his insight and self‑awareness of issues that are relevant to his risk.
Importantly, the conditions allow for the early detection of issues that may put Mr West at risk, such that contravention of the 'early detection' conditions would likely result in Mr West being brought back before the court in contravention proceedings.
I am satisfied that the proposed conditions are reasonable and do not go beyond what is necessary to ensure adequate protection of the community.
8.3 Duration of supervision order
Due to Mr West's expected life expectancy, because of his serious and currently stable medical conditions, Dr Wojnarowska has recommended that a period of 5 years for a supervision order would be appropriate.
Having regard to Dr Wojnarowska's opinion, I am satisfied that Mr West should be released on a supervision order for a period of 5 years.
In any event, under s 36 of the HRSO Act, the State may apply for a restriction order in relation to an offender who is subject to a supervision order that is to expire within one year. There is provision, therefore, for the applicant to apply for a further supervision order if, approaching the end of the supervision order I make, there is evidence that Mr West's risk is still at a level where there is a need for a further period of restriction to provide adequate protection of the community.
For these reasons, I made an order on 14 November 2022 that the continuing detention order be rescinded on 12 December 2022, and that Mr West be released on a supervision order, subject to the conditions set out in the annexure to these reasons.
I also made an order, at the request of the applicant, that the address of the property where Mr West will be residing upon his release on the supervision order be suppressed. I agree that it is necessary to make such an order because if his address was to be published it could put the safety of not only Mr West at risk, but also persons from agencies who visit the address at risk from potential vigilante action.
ANNEXURE
STANDARD CONDITIONS REQUIRED BY THE HRSO ACT
Report to a Community Corrections Officer at the East Perth Adult Community Corrections Centre, 30 Moore Street, East Perth, Western Australia within 48 hours of the order being issued and advise the officer of your current name and address;
Report to and receive visits from a Community Corrections Officer as directed by the court;
Notify a Community Corrections Officer of every change of your name, place of residence, or place of employment at least 2 business days before the change happens;
Be under the supervision of a Community Corrections Officer, which includes, comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32);
Not leave, or stay out of, the State of Western Australia without the permission of a Community Corrections Officer;
Not commit a serious offence during the period of the Order;
Be subject to electronic monitoring under section 31.
ADDITIONAL CONDITIONS
Residence
Take up residence at [suppressed] and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer assigned to you;
Reporting to a Community Corrections Officer and supervision by a Community Corrections Officer
Report to a Community Corrections Officer at your approved release address within normal business hours on the day of release from custody under this order;
Be under the supervision of a Community Corrections Officer, comply with the lawful orders and directions of a Community Corrections Officer and report to, and receive visits from, a Community Corrections Officer at times and at places as directed by the Community Corrections Officer, such arrangements having regard to any employment commitments of you;
Not commence or change paid or unpaid employment, education, training or volunteer work without the prior approval of the Community Corrections Officer;
Attendance at programs or treatment
Consult, engage and attend all appointments with any medical practitioner, counsellor, psychiatrist, psychologist, mentor, support service and/or support person nominated by a Community Corrections Officer, as directed by a Community Corrections Officer;
Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious re-offending, as directed by a Community Corrections Officer;
Reporting to WA Police
Report to the Officer-in-Charge of the Sex Offender Management Squad at the Hatch Building, 144 Stirling Street, Perth, WA, 6000 within 48 hours of your release from custody, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the Sex Offender Management Squad or his/her delegate;
Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004;
If requested, permit Police Officers to enter and search your person, residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this order and allow seizure of any such items that the Police Officer believes to contravene the conditions of the order;
Remain at your premises and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the High Risk Serious Offenders Act 2020;
When requested, advise Police of the names of all of your internet service providers, all mobile or landline telephone services used by you, and all internet user names or identities used by you;
Permit a Community Corrections Officer or WA Police to access any computer or other device capable of storing digital data or information (including your mobile telephone), used by you, for the purpose of ascertaining your activities, and provide to the Community Corrections Officer or WA Police upon request any passwords or any other means required for access to the device or data contained on, or accessible from, the device;
Not delete or otherwise remove and/or disguise any data or information from any computer or electronic storage device (including your mobile telephone), in your possession without prior permission from the Community Corrections Officer or WA Police;
Disclosure/Exchange of Information
Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information;
Allow the Community Corrections Officer, WA Police, or other person or agencies approved by the Community Corrections Officer, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history;
Restrictions on contact with Victims
Have no contact, directly or indirectly, with the victims of your current offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-offender Mediation Unit of the Department of Justice;
Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times;
Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997;
Criminal conduct
Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments;
Not commit an offence under s 202, s 203, s 204 and s 557K of the Criminal Code 1913 (WA), or s 17(1) of the Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021;
Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996;
Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse Of Drugs Act 1981 applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014 and your use is in accordance with the instructions of the provider;
Curfew
Be subject to a curfew, pursuant to section 32 of the High Risk Serious Offenders Act 2020, such that you are to remain at and not leave your approved address as directed by a Community Corrections Officer from time to time;
When subject to a curfew under this order, present yourself for inspection at the front door or kerbside of your approved address, or speak on the telephone, to any Community Corrections Officer or Police Officer or their agent monitoring your compliance with the curfew;
When subject to a curfew under this order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew;
Medications/Mental Health
Undertake any medication regime as directed by the Community Corrections Officer in consultation with a medical practitioner(s) and/or in accordance with a medical practitioner's direction and comply with all testing to monitor your compliance with that treatment as directed by a Community Corrections Officer;
Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of re-offending and compliance with treatment to the Department of Justice;
Prevention of high-risk situations
With the exception of public transport, not enter in or on any vehicle with any female or where a female is present (whether that vehicle is under your control or not), unless the identity of such person is approved in advance by a Community Corrections Officer;
Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the Community Corrections Officer;
Not to possess, or consume, or purchase, or use alcohol;
Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the Community Corrections Officer or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place;
Provide a valid sample pursuant to condition 38;
Not remain in the presence of females who are affected by alcohol, unless the identity of such person is approved in advance by the Community Corrections Officer;
Not remain in the presence of any female affected by a prohibited drug;
Not go in or remain at any licensed premises unless permitted or required to do so for the following reasons:
a)For the purpose of averting or minimizing a serious risk of death or injury to yourself or another person;
b)For a purpose, and for a duration, approved in advance by a Community Corrections Officer;
c)On the order of a Community Corrections Officer or Police Officer.
Not remain in any place where prohibited drugs are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place or exit the persons consuming the drugs from your address;
Not to be in possession of any pornographic material, in either hard-copy or digital form, or access or view pornography on the internet unless approved in advance by a Community Corrections Officer;
Have no contact with any child under the age of 18 years, whether such contact is in person, in writing, by telephone or by electronic means, unless
a)the contact is authorised in advance by the Community Corrections Officer and such contact is supervised at all times by an adult approved in advance by the Community Corrections Officer;
b)the contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction, and another adult is present.
('Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication);
Where any unsupervised contact with a child under the age of 18 years is initiated by the child, unless the contact is permitted under the condition immediately above, you must withdraw immediately from the presence of the child;
Provide details of any contact with a child under the age of 18 years both to your Community Corrections Officer and to the Police on the next occasion you report to that person or agency;
Report immediately to your Community Corrections Officer the formation of any social association (contact by any means on more than one occasion), domestic, romantic, sexual or otherwise intimate relationship;
Not to conduct computer searches for, nor possess or collect in either electronic or permanent form, images of children, whether indecent or not, with the exception of images of your immediate family that are not indecent images. Possession of certain images depicting a child or children may be authorised at the discretion of the Community Corrections Officer. You are directed to review and remove any items that you have in your prison property within 48 hours of your release to this Order and then your compliance will be confirmed by your Community Corrections Officer and or WA Police;
Not form any domestic relationship with a person who has children under the age of 18 years in their care either full time or part time;
As directed by a Community Corrections Officer, make full disclosure regarding your past offending and the current order to anyone with whom you commence a social association (contact by any means on more than one occasion), domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a Community Corrections Officer or a Police Officer; and
Have no contact with, membership of, or affiliation with clubs, associations or groups where membership is primarily for children; and to cease/cancel such memberships if directed to do so by a Community Corrections Officer or Police Officer.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TS
Associate to the Honourable Justice Smith
23 NOVEMBER 2022
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