The State of Western Australia v White [No 7] - [2023] WASC 432

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- WHITE [No 7] [2023] WASC 432
CORAM:   LUNDBERG J
HEARD:   13 SEPTEMBER 2023 (WITH SUPPLEMENTARY WRITTEN SUBMISSIONS ON 20 SEPTEMBER 2023)
DELIVERED          :   13 NOVEMBER 2023
FILE NO/S:   SO 4 of 2013
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
STEPHEN NEIL WHITE
Respondent

Catchwords:

Criminal law - High Risk Serious Offenders Act 2020 (WA) - Review of continuing detention order - Where respondent has a significant cognitive disability and history of serious sexual and violent offending - Whether respondent is a high risk serious offender - Whether continuing detention order should be affirmed or supervision order made - Whether matters pertaining to funding under the National Disability Insurance Scheme and accommodation sufficiently addressed since previous statutory review - Turns on own facts

Legislation:

Dangerous Sexual Offenders Act 2006 (WA) (repealed)
Guardianship and Administration Act 1990 (WA)
High Risk Serious Offenders Act 2020 (WA)
National Disability Insurance (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)

Result:

Continuing detention order rescinded
Supervision order made with conditions

Category: B

Representation:

Counsel:

Applicant	:	Ms F M Allen
Respondent	:	Mr D J McKenzie

Solicitors:

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

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

Director of Public Prosecutions (WA) v Dinah [No 9] [2017] WASC 158
Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v White [2013] WASC 417
Director of Public Prosecutions (WA) v White [No 2] [2015] WASC 2
Director of Public Prosecutions (WA) v White [No 3] [2015] WASC 472
Director of Public Prosecutions (WA) v White [No 4] [2016] WASC 414
Italiano v The State of Western Australia [2009] WASCA 116
NNXF and National Disability Insurance Agency [2019] AATA 5552
Sewell and National Disability Insurance Agency [2023] AATA 2783
The State of Western Australia v Blurton [No 3] [2023] WASC 419
The State of Western Australia v Carter [No 5] [2023] WASC 223
The State of Western Australia v D'Rozario [No 3] [2021] WASC 412
The State of Western Australia v Garlett [2021] WASC 387
The State of Western Australia v JXK [No 3] [2023] WASC 23
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Narrier [No 2] [2022] WASC 49
The State of Western Australia v Newland [No 3] [2022] WASC 43
The State of Western Australia v Tomasovich [No 2] [2022] WASC 402
The State of Western Australia v West [No 6] [2019] WASC 427
The State of Western Australia v White [No 5] [2019] WASC 237
The State of Western Australia v White [No 6] [2021] WASC 226
The State of Western Australia v ZSJ [2020] WASC 330

Table of contents

A. Introduction and summary

B. Relevant questions on this Application

(1) First question
(2) Second question

C. Procedural history

D. Legislative framework and relevant principles

(1) HRSO Act
(2) NDIS Act

E. Evidence

(1)     Overview
(2)     The respondent's personal background
(3)     Psychiatric history
(4)     Dr Wojnarowska - Forensic Consultant Psychiatrist
(5)     Ms Dabala - Senior Community Corrections Officer
(6)     Ms Aimee Goode - Team Leader, Community Offender Monitoring Unit
(7)     Post-hearing evidence

F. Certain factual findings

G. Disposition

(1) High risk serious offender
(2) Substantial compliance with the standard conditions

H. Conclusion

ATTACHMENT A SUPERVISION ORDER CONDITIONS

LUNDBERG J:

A.Introduction and summary

These reasons relate to the application dated 24 January 2023 filed by the State of Western Australia for a further review of the continuing detention order (CDO) to which the respondent is presently subject (Application). The Application is made pursuant to s 64 and s 68 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act).[1] In accordance with the HRSO Act, my task on this Application is to undertake the sixth review of the CDO.
[1] Together with s 124 HRSO Act.
The respondent is a 58‑year‑old man with significant cognitive impairments who has spent the majority of his adult life in custody, including the last 22 years. The respondent is a highly institutionalised individual. His most recent offences were committed over 20 years ago, involving serious violence towards a woman and a young girl in her custody. The girl was 5 years old. The offences included the attempted murder and sexual penetration of the girl. The respondent served lengthy terms of imprisonment as a result, which commenced in June 2001.
The respondent completed his custodial terms of imprisonment in November 2013, but has been held in custody since that time by reason of a CDO which was initially made by this court, and authorised, under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act).
On 20 November 2013, the initial CDO was made by Jenkins J.[2] After conducting the hearing of an application for an order under the DSO Act, Jenkins J found that the respondent was a serious danger to the community and imposed the order pursuant to s 17(1)(a) and s 23(1)(a) of the DSO Act. In doing so, her Honour found:[3]
[The respondent's] previous serious sexual offending has been of a most extreme kind. His victims have ranged from a young girl to an elderly woman. He has taken advantage of situations to commit offences, but he has also been prepared to take significant risks to obtain a victim. He has also been prepared to use extreme violence in order to subdue the victim. His latest victim was very seriously injured and it seems fortunate that she was not killed by [the respondent]. There is clearly a need to protect members of the community from the risk that he poses.
[2] Director of Public Prosecutions (WA) v White [2013] WASC 417 [45] ‑ [73] (Jenkins J).
[3] Director of Public Prosecutions (WA) v White [93] (Jenkins J).
There have been five annual reviews of the CDO since that time,[4] with the most recent being in July 2021 before Hall J.[5] At each of those reviews, the court has found that the respondent remained a serious danger to the community and that the only order which was compatible with the protection of the community was to affirm the CDO. The respondent has thus spent 10 years in custody pursuant to the CDO. On any view, a decade is a lengthy period to be held in custody other than for the purposes of serving a term of imprisonment for an offence for which the person has been found guilty.
[4] Director of Public Prosecutions (WA) v White [No 2][2015] WASC 2 [5] - [19] (Corboy J); Director of Public Prosecutions (WA) v White [No 3][2015] WASC 472 [5] - [9] (Hall J); Director of Public Prosecutions (WA) v White [No 4][2016] WASC 414 [2] - [3] (Jenkins J); and The State of Western Australia v White [No 5][2019] WASC 237 [3] - [5] (Jenkins J).
[5] The State of Western Australia v White [No 6] [2021] WASC 226 [5] - [15] (Hall J).
On the present Application, the State submits that the imposition of a supervision order under the HRSO Act (Supervision Order) is now a viable alternative option, rather than the affirmation of the CDO. The State submits that the two primary factors which have previously inhibited the making of such an order have been appropriately addressed.
The first of these factors is the availability of sufficient funding from the National Disability Insurance Agency (NDIA), through the National Disability Insurance Scheme (NDIS), for the necessary support of the respondent in the community.[6] Given the level of supervision and support the respondent would require, the NDIS is the only source of funding which is reasonably available to the respondent (and for which he is eligible, given his significant level of disability).
[6] Which have legislative effect through the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).
The second factor is the availability of suitable accommodation for the respondent.[7]
[7] State's submissions dated 11 September 2023 [2].
This is not the first review application involving an offender under the HRSO Act in respect of which issues such as the foregoing have emerged as matters which are highly material to the determination of the application. I refer, by way of recent examples, to the decisions of this court in The State of Western Australia v Carter [No 5][8] and The State of Western Australia v Blurton [No 3].[9] One of the particular issues which arises in these types of matters is the manner in which the court assesses not only any current NDIS funding approval an offender has received, but also how the court assesses the offender's future NDIS funding profile.
[8] The State of Western Australia v Carter [No 5] [2023] WASC 223 (Derrick J).
[9] The State of Western Australia v Blurton [No 3] [2023] WASC 419 (Derrick J).
On the last occasion the respondent was before this court, as part of the continuing review process which is mandated by the legislation, it was clear that the possibility of the respondent being released into the community pursuant to a Supervision Order was negated by the two matters I have just outlined. Both issues required questions of funding to be addressed, and additionally required bureaucratic blockages to be overcome. As Hall J observed at the last review in July 2021, the respondent was at that time 'caught in the limbo of an apparently inflexible policy by the NDIA not to assess a person who is detained in prison for community support funding until a certain release date is set.'[10]
[10] The State of Western Australia v White [No 6] [63].
It is now submitted by the State that:[11]
The positive change in circumstances, since the previous (fifth) review of the CDO … are substantial enough to indicate that the Respondent's risk of reoffending could be properly managed and reduced to a level that the protection of the community can be adequately ensured by his release on a supervision order.
If the court is satisfied that the Respondent would substantially comply with the standard conditions of a supervision order, then the Applicant is of the view that a supervision order is a viable option where the two primary factors of sufficient NDIS funding for the necessary support and the availability of suitable accommodation have been appropriately addressed.
[11] State's primary submissions [104] - [105].
At the hearing of the Application on 13 September 2023, the State proposed the imposition of a Supervision Order for a period of 10 years, through until 2033. The position of the State was supported by the respondent. Counsel for the respondent addressed the court on the evidence and the operation of the statutory framework.
At the conclusion of the hearing, I indicated I would reserve my decision but also requested further written submissions from the State in relation to the legislative framework relevant to the review and/or reassessment of the respondent's NDIS plan.[12]
[12] The State's additional submissions received on 20 September 2023 provided a comprehensive overview of the framework and the effect of the key provisions in the NDIS Act, with particular emphasis on the statutory provisions which pertain to the reassessment of funding approval.
I have carefully considered the State's primary and additional submissions, the oral submissions advanced on behalf of the State and the respondent, and the evidence which was led on the Application.
In all the circumstances, I have concluded that the respondent is a high risk serious offender and it is necessary for a restriction order to be made.
Further, I am satisfied the appropriate restriction order in the circumstances would be the imposition of a Supervision Order on extensive and strict conditions, rather than to affirm the CDO. However, I do not accept in the particular circumstances of this case that the term of the Supervision Order should be as lengthy as proposed by the State, namely 10 years. In my view, the potential uncertainties concerning the continuation of the NDIS plan (and associated funding approval), together with the risks arising with the reintroduction of the respondent into the community after such a lengthy period in custody, necessitate a shorter period for the reasons explained below. That shorter duration will, on my assessment, allow the court to re-evaluate matters on a shorter term horizon, and then to assess the risks and undertake the statutory evaluation required in relation to the respondent's position on what I assess to be the high likelihood that the State will bring a fresh application to the court before the expiry of the Supervision Order I intend to make. My detailed reasons follow.

B.Relevant questions on this Application

Given the nature of the Application filed by the State and the contentions advanced by the parties, the following questions arise for determination in the present matter.
(1) First question
The first question is to assess whether the respondent is a high risk serious offender in the sense that the court is satisfied by acceptable and cogent evidence and to a high degree of probability that it is necessary to make a restriction order to ensure the adequate protection of the community against the unacceptable risk the respondent would commit a serious offence in the future. The State bears the onus of satisfying the court in this regard. The principles applicable to this analysis are set out later in these reasons.
If the State does not discharge the onus in this regard then the court must rescind the CDO.[13] The State has made submissions to the effect that the court should find the respondent is a high risk serious offender under the legislation. Counsel for the respondent conceded the issue, and I should record that that was an appropriate concession to make in all the circumstances.[14]
(2) Second question
[13] HRSO Act s 7(1), s 7(2), s 64 and s 68.
[14] ts 396.
If the first question is answered in the affirmative, I must consider whether the appropriate disposition is to affirm the CDO or to release the respondent into the community but subject to a Supervision Order. This requires an analysis by the court of all the available evidence to assess whether the court can be satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions of a Supervision Order and to have regard to the paramount consideration which is to ensure the adequate protection of the community.[15]
[15] HRSO Act s 29(1) and s 68.
The respondent bears the onus to satisfy the court as to substantial compliance with the standard conditions. In this regard, two particular factors loom large on the present Application, namely: (a) the availability of sufficient funding through the NDIS for the necessary support of the respondent in the community and (b) the availability of suitable accommodation for the respondent.
If the respondent does not discharge the onus, then the court must affirm the CDO which is presently in place. If the respondent discharges his onus, it remains necessary for the court to have regard to the paramount consideration to ensure the adequate protection of the community before a Supervision Order can be made.

C.Procedural history

I have briefly outlined the procedural background to the Application in the introductory section of these reasons. The respondent committed serious offences of violence and of a sexual nature in June 2001 and was sentenced for those offences on 31 October 2001, with the sentence backdated to 21 June 2001. He was sentenced to a total sentence of 13 years' imprisonment with eligibility for parole. That sentence related to the offences against the 5‑year‑old girl. Following a State appeal against the sentence, it was increased from 13 years to 17 years' imprisonment.
The respondent was subsequently dealt with for the related offences against the adult female victim, and was sentenced to 16 months' imprisonment to be served cumulatively.
On the application of the Director of Public Prosecutions, which was filed before the conclusion of the respondent's period of imprisonment, Jenkins J was satisfied the respondent was a serious danger to the community and imposed the original CDO. That was imposed on 20 November 2013.
At each of the statutory reviews of the CDO since that time, the court has found that the respondent remained a serious danger to the community and that the only order which was compatible with the protection of the community was to affirm the CDO.
The diagram below shows the respondent's custodial and restriction order history since 2001, and identifies the dates and sequence of the six statutory periodic reviews of the CDO which have been undertaken since 2013.

On 30 March 2023, directions were made by Forrester J in relation to the present the Application. To allow for the evidentiary position concerning matters associated with NDIS funding and accommodation to fully mature, the hearing of the Application was eventually delayed until 13 September 2023.

D.Legislative framework and relevant principles
(1)HRSO Act

The Application is to be dealt with under s 64 and s 68. Those provisions state as follows:
64.Review - periodic
(1)While an offender is subject to a continuing detention order, the State may apply to the Supreme Court for the offender's detention under the order to be reviewed.
(2)The State must apply under subsection (1) so as to ensure that reviews are carried out -
(a)as soon as practicable after the end of the period of 1 year commencing when the offender is first in custody on a day on which the offender would not have been in custody had the continuing detention order not been made; and
(b)as soon as practicable after the end of the period of 2 years commencing when the detention was most recently reviewed under this section or section 65.
(3)The periods mentioned in subsection (2)(a) and (b) are extended by any period during which the offender is in custody serving a sentence of imprisonment.
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 following summary of the applicable principles are drawn from my decision in The State of Western Australia v JXK [No 3].[16] I have also had regard to the principles extracted in the State's submissions.
[16] The State of Western Australia v JXK [No 3] [2023] WASC 23.
The principles that apply to a review of a CDO are well known. They have been set out in several decisions of this court and were summarised by Hall J in The State of Western Australia v Newland [No 3].[17]
[17] The State of Western Australia v Newland [No 3] [2022] WASC 43.
On a review of a CDO under the HRSO Act, the court has to consider, first, whether the person remains a high risk serious offender and, second, if so, whether the CDO should be affirmed or whether it should be rescinded and a supervision order made.[18]
[18] HRSO Act s 68.
Section 7(1) provides that an offender is a high risk serious offender if the court is satisfied by acceptable and cogent evidence and to a high degree of probability that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.

A 'restriction order' under s 7(1) means either a CDO or a Supervision Order.[19]
[19] HRSO Act s 3(1).
A 'serious offence' is an offence specified in sch 1 div 1 of the HRSO Act, or in sch 1 div 2 and committed in the circumstances set out in div 2 relation to that offence.[20] In relation to sexual offences, the offences set out in sch 1 div 1 include all offences formerly defined as 'serious sexual offences' under the DSO Act.
[20] HRSO Act s 3, s 5(1) and s 5(2).
Section 7(1) was analysed by Corboy J in The State of Western Australia v Garlett.[21] Corboy J held that the preferred interpretation of the section requires the court to undertake two separate evaluative assessments.
[21] The State of Western Australia v Garlett [2021] WASC 387.
First, the court must be satisfied that a risk that an offender will commit a serious offence is unacceptable.
Second, the court must be satisfied that it is necessary to make a restriction order to ensure adequate community protection against a risk that the offender will commit a serious offence.[22]
[22] The State of Western Australia v Garlett [135] ‑ [138]. See also The State of Western Australia v D'Rozario [No 3] [2021] WASC 412 [19] ‑ [21]; and The State of Western Australia v Narrier [No 2] [2022] WASC 49 [23].
The State bears the onus of satisfying the court that an offender is a high risk serious offender.[23] The court has to be satisfied of these matters, pursuant to s 7(1), by acceptable and cogent evidence and to a high degree of probability. This is a standard that is greater than a finding on the balance of probabilities and less than a finding of beyond reasonable doubt. It is otherwise incapable of further definition.[24]
[23] HRSO Act s 7(2).
[24] Director of Public Prosecutions (WA) v GTR[2008] WASCA 187; (2008) 38 WAR 307 [28] (Steytler P and Buss JA).
An 'unacceptable risk' is a risk that is not trivial or transient.[25]
[25] The State of Western Australia v Garlett [136(b)].
The court is required to undertake a balancing exercise, taking into account the matters listed in s 7(3). In doing so, the court must disregard the possibility that the offender might temporarily be prevented from committing a serious offence by imprisonment, remand in custody, or the imposition of bail conditions.[26]It requires the court to have regard to, among other things, the nature of the risk (the commission of a serious offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition whilst having regard, on the other hand, to the serious consequences for the offender if an order is made under the HRSO Act.
[26] HRSO Act s 7(4).
The requirement is not that the risk that the offender will commit a serious offence must be at some high percentage of probability. A risk that the offender will commit a serious offence may be less than 50% yet still be an unacceptable risk.[27] It is the necessity 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 that must be proved by acceptable and cogent evidence and to a high degree of probability.
[27] The State of Western Australia v West [No 6] [2019] WASC 427 [24]; The State of Western Australia v ZSJ [2020] WASC 330 [47].
If the court is satisfied that the offender is a high risk serious offender, the remaining issue is whether it is appropriate to order a CDO or a Supervision Order.[28]A court cannot make a Supervision Order unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of such an order.[29]The standard conditions are those contained in s 30(2) and include reporting, supervision, electronic monitoring and that the offender will not commit a serious offence during the period of the order. The onus is on an offender to satisfy the court that he will substantially comply with the standard conditions.[30]
[28] HRSO Act s 68(1)(b).
[29] HRSO Act s 29(1).
[30] HRSO Act s 29(2).
The powers conferred by the HRSO Act are not to be exercised for the purpose of imposing additional punishment, but rather for the ultimate purpose of protecting the community. The protective purpose of the HRSO Act was affirmed by the High Court in Garlett v The State of Western Australia.[31]This 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.[32] In doing so, the court's function is not to reduce this risk to zero.[33]
[31] Garlett v The State of Western Australia [2022] HCA 3 [45], [55] ‑ [56] (Kiefel CJ, Keane and Steward JJ), but see the analysis of Edelman J on this issue at [247] ‑ [255], describing continuing detention orders under the HRSO Act as 'protective punishment'.
[32] The State of Western Australia v Latimer [2006] WASC 235 [49].
[33] Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 [107].
The protective purpose of the HRSO Act is to be achieved not only by continuing to exercise control over the person the subject of an order, but also by providing care and treatment for the offender in the hope that the risk to the community will be reduced.[34]
[34] HRSO Act, s 8(b). See also The State of Western Australia v Tomasovich [No 2] [2022] WASC 402 [38] (Curthoys J).
The HRSO Act mandates periodic reviews of a CDO.[35] This allows for the possibility of a change of circumstances. However, it does not follow from this that in conducting a review, the court is bound by the factual findings made at the previous hearing. In practice, however, there is usually little prospect that expert evidence on a review will call into question the previous finding that the respondent was a serious danger to the community.[36]
[35] HRSO Act, s 64.
[36] Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107 [51].
The risk of offending may be affected by age, health and the successful completion of treatment. If the offender is found to no longer be a high risk serious offender, the CDO must be rescinded.[37]
[37] HRSO Act, s 68(1)(a)
If the offender remains a high risk serious offender, the court does not have a predisposition to affirm the CDO. In deciding whether to affirm the CDO or rescind the CDO and make a Supervision Order, the paramount consideration is the need to ensure adequate protection to the community.[38]
[38] HRSO Act, s 68(2).
The level of risk posed by the respondent, and whether the community can be adequately protected against the risk under a Supervision Order, must be assessed by having regard not only to factors personal to the respondent, such as personality, attitudes, propensities and his capacity to control or manage his own behaviour, but also to external constraints and obligations that can be put in place under a supervision order to mitigate the risk.
Whether the protection that can be afforded by a Supervision Order will be 'adequate' is a qualitative assessment. It is necessary to have regard to the nature of the risk, the likelihood of the risk being realised and the likely affect that the proposed Supervision Order could have in reducing or obviating that risk.[39]
[39] Director of Public Prosecutions (WA) v GTR [26] ‑ [27] (Steytler P and Buss JA) and Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63] ‑ [65] (Wheeler JA)
Gains made by an offender in treatment and their behaviour while in custody will inform the assessment of the personal factors. Behavioural changes or improvements in management options may make a supervision order a viable possibility.[40] The availability of new technology or resources in the community is also relevant to the assessment of external factors. If the risk changes or resources improve, the need for the continuing detention of an offender may dissipate and continuing detention may become unjust.[41]
(2)NDIS Act
[40] The State of Western Australia v Newland [No 3] [2022] WASC 43 [23]. See also Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178 [14] ‑ [18].
[41] Director of Public Prosecutions (WA) v Unwin [No 3] [18], cited with approval by Fiannaca J in Director of Public Prosecutions (WA) v Dinah [No 9] [2017] WASC 158 [18].
The additional submissions filed by the State identified the relevant provisions of the NDIS Act and the National Disability Insurance (Supports for Participants) Rules 2013 (Cth) (NDIS Rules). The NDIS Rules are made for the purposes of ss 33 and 34 of the NDIS Act.[42] The NDIS Rules set out the relevant scheme for the assessment and determination of the reasonable and necessary supports that will be funded for participants under the NDIS.[43]
[42] NDIS Act, s 33 (Matters that must be included in a participant's plan) and s 34 (Reasonable and necessary supports).
[43] NDIS Rules, [1.1].
The NDIS is implemented under the NDIS Act. That legislation establishes a statutory framework for a national program for the delivery of supports and services funded under the NDIS to eligible people living with disability to help them in their everyday lives supporting their independent and social and economic participation and enabling them to exercise choice and control over the planning and the delivery of their supports.
When a person becomes a participant in the NDIS, they develop a plan with the NDIA.[44] The respondent is eligible for support under the NDIS Act and a plan (together with funding) has been prepared which has received NDIS approval. Pursuant to s 33 of the NDIS Act, an NDIS plan comprises of two parts:
(a)the participant's statement of goals and aspirations, which is prepared by the participant and specifies their goals, objectives, aspirations and circumstances;[45] and
(b)the statement of participant supports, which is prepared with the participant and approved by the CEO, and sets out, among other things:
(i)the general supports that will be provided to, or in relation to, the participant;
(ii)the reasonable and necessary supports that will be funded under the NDIS;[46] and
(iii)a reassessment date[47] - being the date by which the NDIA must reassess the plan.[48]
[44] NDIS Act, s 9 (definition of 'Agency'). The term 'Agency' means the NDIA referred to in s 117(1).See also NDIS Act, s 32; and the NDIS Rules [2.1].
[45] NDIS Act, s 33(1); and NDIS Rules [2.1](a).
[46] NDIS Act, s 9 and 13(2) (definition of 'supports' and 'general supports'). Support includes general supports. General Supports means: (a) a service provide by the NDIA to a person; or (b) an activity engaged in by the NDIA in relation to a person; that is in the nature of coordination, strategic or referral service or activity, including a locally provided coordination, strategic or referral service or activity. The definition of general support includes funding, and ss 33-34 indicate that general supports are provided and reasonable and necessary supports are funded.
[47] NDIS Act, s 9 (definition of 'reassessment date'). Reassessment date means of a participant's plan means the date specified under paragraph 33(2)(c). The reassessment date for the respondent is 5 June 2023.
[48] NDIS Act, s 33(2); and NDIS Rules [2.1](b).
The State's submissions identified the changes to the NDIS Act which came into effect from 1 July 2022, with a focus on the reassessment which is to be undertaken of an NDIS plan at the end date of the participant's plan. The matters relevant to the reassessment of a NDIS plan are set out in chapter 3 part 2 div 4 of the NDIS Act. The two outcomes of a re-assessment are a variation of an existing NDIS plan or the preparation of a new plan.[49] I will not expressly deal with the provisions which concern the preparation of a new plan, but focus below on the regime as it concerns the variation of an NDIS plan.
[49] NDIS Act, s 48(7) - (8) and s 49(1) - (2).
The variation of an NDIS plan includes a variation of the reassessment date of the NDIS plan to a later date where the CEO is satisfied that the participant's existing plan is likely to meet their support needs for a longer than otherwise specified in the existing plan.[50]
[50] NDIS Act, s 47A(1A)(a).
A reassessment may be undertaken under s 48, at any time on the request of the participant or on the CEO's own initiative,[51] or under s 49, before the reassessment date of a participant's plan.[52]
[51] NDIS Act, s 48(1) - (2).
[52] NDIS Act, s 49(1).
The State submitted that, in respondent's case, if the CEO is satisfied that his current NDIS plan is likely to meet his support needs for a longer period than specified in his plan, it is possible that a variation of the reassessment date of the respondent's NDIS plan is made to a later date.For example, such variation may be for a further duration of 3 years.[53]
[53] NDIS Act, s 47A(1A)(a).
The NDIS Act specifies the matters to which the CEO must have regard in varying the participant's plan, namely the CEO must:
(a)have regard to the participant's statement of goals and aspirations;
(b)have regard to relevant assessments conducted in relation to the participant;
(c)be satisfied as mentioned in s 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided;
(d)apply the NDIS rules (if any) made for the purposes of s 35;
(e)have regard to the principle that a participant should manage the participant's plan to the extent that the participant wishes to do so; and
(f)have regard to the operation and effectiveness of any previous plans of the participant.[54]
[54] NDIS Act s 47A(3); see also NDIS Act s 33(5) which mirrors s 47A(3).
With respect to the general supports that will be provided and the reasonable and necessary supports that will be funded under the NDIS Act, s 34 provides that the CEO must be satisfied with all of the following:
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is most appropriately funded or provided through the NDIS, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(g)as part of a universal service obligation; or
(h)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.[55]
[55] NDIS Act, s 34(1); and NDIS Rules, [2.3].
I should mention the objects and principles stated in the NDIS Act which are relevant to any reassessment of a participant's plan.[56] The objects of the NDIS Act are provided in s 3(1)(a) - (i) of the NDIS Act, including to:
(a)support the independence and social and economic participation of people with disability;
(b)provide reasonable and necessary supports, including early intervention supports, for participations in the NDIS;
(c)enable people with disability to exercise choice and control in the pursuits of their goals and the planning and delivery of their supports;
(d)facilitate the development of nationally consistent approach to the access to, and the planning and funding of, supports of people with disability;
(e) protect and prevent people with disability from experiencing harm arising from poor quality and unsafe supports or services provided under the NDIS.
[56] NDIS Act, s 47A.
Finally, the general principles guiding actions under the NDIS Act are provided in s 4(1) - (17) of the NDIS Act, including the following:
(a)People with disability should be supported to participate in and contribute to social and economic life.
(b)People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.
(c)People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
(d)People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
(e)Reasonable and necessary supports for people with disability should:
(i)support people with disability to pursue their goals and maximise their independence; and
(ii)support people with disability to live independently and to be included in the community as fully participating citizens; and
(iii)develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.[57]

E.Evidence
(1) Overview
[57] I will mention, but not set out in full, that s 17A(1) - (3) of the NDIS Act further provides principles which the CEO must have regard to, in addition to the principles in s 4, in performing the CEO's functions and exercising the CEO's powers under Chapter 3, such as when conducting the assessment (or reassessment) of a participant's NDIS plans. These principles are similar to those in s 4 of the NDIS Act. I will also mention, but not set out in full, that s 31(a) - (k) of the NDIS Act provides for the principles relating to the preparation, variation, reassessment and replacement of a participant's plan, and the management of the funding of supports under a participant's plan.

At the hearing of the Application, the State tendered a book of materials (Book of Materials) comprising two volumes dated 2 June 2023 and 29 August 2023. I received those volumes as Exhibits A and B.[58] I also received in evidence an email from Ms Goode headed 'Desktop spatial analysis for Mr Stephen white' dated 11 September 2023, which is Exhibit C.[59]
[58] ts 397.
[59] ts 397.
The first volume of the Book of Materials (Exhibit A) consisted of background material including the respondent's criminal record, Department of Justice prison records, individual management plans, medical and treatments reports, information concerning the respondent's NDIS funding applications, previous decisions of this court concerning the respondent, records relating to the respondent's previous offences, and material prepared for previous review applications under the DSO Act (in 2014, 2015, 2016, 2018 and 2021).
The second volume of the Book of Materials (Exhibit B) consisted of documents relating to the NDIS funding for the respondent and the medical assessments and reports prepared for the purposes of the present Application. The documents and specific medical reports provided to the court were:
(a)a letter from the Delegate of the CEO of the NDIA to the respondent dated 14 February 2023;[60]
(b)an NDIS plan approval for the respondent dated 6 June 2023;[61]
(c)a letter from the Acting Manager of the Forensic Psychological Assessment Team at Corrective Services to the Supreme Court dated 27 July 2023;[62]
(d)a psychiatric report prepared by Dr Gosia Wojnarowska dated 15 August 2023, noting that Dr Wojnarowska is a Forensic Consultant Psychiatrist;[63] and
(e)a community supervision assessment report prepared by Ms Julie Dabala, a Senior Community Corrections Officer, dated 25 August 2023, which was endorsed by Ms Aimee Goode, the Team Leader for the Community Offender Monitoring Unit, known as COMU, which forms part of the Corrective Services Department.[64]
[60] Exhibit B, page 367.
[61] Exhibit B, page 373.
[62] Exhibit B, page 387.
[63] Exhibit B, page 388.
[64] Exhibit B, page 403.

At the hearing of the Application, oral evidence was given by Dr Wojnarowska, Ms Dabala and Ms Goode. The respondent did not challenge the credibility or reliability of any of the witnesses and did not challenge the expertise of the experts. My assessment was that the witnesses gave their evidence in a considered manner, giving reasons where appropriate. I accept their evidence.
The respondent elected not to give or call any evidence.[65]
[65] ts 426.
I will summarise the evidence concerning the uncontentious matters at the outset, dealing with the respondent's background and criminal history, and then the evidence as to matters concerning NDIS funding and accommodation. Following that I will summarise the evidence of the witnesses who gave evidence at the hearing before me.
(2)The respondent's personal background
The respondent was born in October 1965. The respondent is single and has one daughter with whom he has no contact. His biological father and the grandparents who raised him are deceased. The respondent has no contact with his mother.[66]
[66] Exhibit B, page 390.
The respondent was diagnosed with an acquired brain injury and was assessed as having full scale IQ of 62. He has left eye blindness and right eye impaired vision.[67] The respondent began using alcohol at the age of 14 years, and was a heavy daily user from the age of 16 years. He attended alcoholics anonymous and was admitted for detoxification but did not have a rehabilitation experience. He has previously reported experiencing blackouts when intoxicated. He also has a history of intravenous amphetamine, heroin and marijuana use.[68]
[67] Exhibit B, page 393.
[68] Exhibit B, page 394.
The respondent, when he was young, witnessed and was subjected to domestic violence. He had learning difficulties with placement at special education and had a transient lifestyle including homelessness, with lengthy periods in custody from the age of 17. Worryingly, less than 25% of his adult life has been spent in the community. The respondent has had some employment history being involved in labouring positions, mustering, working on stations, driving trucks, shooting animals, gardening and pushing trolleys, but nothing more than that.[69]
[69] Exhibit B, pages 394 - 395.
On 24 August 2021, pursuant to the Guardianship and Administration Act 1990 (WA), the State Administrative Tribunal declared that the respondent was:
(a)incapable of looking after his own health and safety;
(b)unable to make reasonable judgments in respect of matters relating to his person;
(c)in need of oversight, care or control in the interests of his own health and safety; and
(d)in need of a guardian.
The State Administrative Tribunal approved the appointment of the Public Advocate as the respondent's guardian. I understand the guardianship order itself is to be reviewed by 24 August 2026.[70]
[70] Exhibit B, page 393.
The following summary is drawn from the reasons for decision of Jenkins J[71] and which I understand is uncontentious. The respondent's history of offending is quite general and broad in nature, but includes serious sexual and violent offences, as well as a history of breaching bail and of re-offending. It has been noted that all of the respondent's sexual offences have occurred whilst he has been on bail.[72]
1980s
[71] Director of Public Prosecutions (WA) v White [45] - [73] (Jenkins J).
[72] Exhibit B, page 392.
The respondent has lived in several States as well as in the Northern Territory over the years.
As a teenager in the 1980s, the respondent committed a number of violent and antisocial dishonesty offences in South Australia and New South Wales. He was convicted of his first sexual offence on 19 May 1983 in the District Court at Penrith, New South Wales. He was 17 years old at the time, and was convicted of indecent assault on a female under the age of 16 years.[73] He was committed to an institution for 12 months. A psychiatrist who prepared a report for a South Australian court in February 1985 stated that the respondent told him that one of his female relatives had set him up by saying that he had violently raped a 9‑year‑old girl.
[73] Exhibit A, page 15; Exhibit B, page 391.
On 17 July 1984, the respondent raped a 73‑year‑old woman in her home in South Australia. The woman was a stranger to him. The respondent was briefly remanded in custody and then released on bail.[74]
[74] Exhibit A, page 15; Exhibit B, page 391.
On 11 November 1984, the respondent, then aged 19 years, attempted to rape a 30‑year‑old woman in her home in South Australia.[75] The victim was a stranger to him. In order to subdue the victim, the respondent held a knife close to her face. The victim struggled and the respondent threw her against a wall, kneed her in the face and dragged her towards her bedroom by her hair and arm. He also removed her top and bra. When the respondent went to the front door to shut it, the victim ran out of the back door. The respondent caught her and again assaulted her. When a vehicle drove past, the respondent ran off. He was remanded in custody after his arrest.
[75] Exhibit A, pages 11 - 12 and 15; Exhibit B, page 391.
In April 1985, the respondent pleaded not guilty to the offence committed on 17 July 1984 but he was convicted after trial. He was remanded in custody for sentencing at a later date.
On 18 July 1985, the respondent pleaded guilty to the attempted rape committed on 11 November 1984. He was sentenced to 4 years' imprisonment with a non‑parole period of 3 years.
On 27 September 1985, the respondent was sentenced for the rape committed on 17 July 1984. He was sentenced to 8 years' imprisonment with a non‑parole period of 5 years cumulative upon the sentence imposed for the attempted rape.
1990s
On 30 January 1991, the respondent was released from prison on parole.[76] He breached his parole by committing dishonesty offences in Victoria. He was sentenced to 8 months' imprisonment and his parole was cancelled.
[76] Exhibit A, page 15.
On 22 October 1991, the respondent was released from prison in Victoria and immediately extradited to South Australia where he returned to custody to complete his sentences.
On 15 May 1995, the respondent was released on parole in South Australia.
In October 1995, the respondent allegedly committed a number of dishonesty offences in South Australia.[77] He was bailed and subsequently failed to appear in court. The charges were later withdrawn.
[77] Exhibit A, page 16.
On 6 December 1995, the respondent's parole expired. On 10 January 1996, his bail was revoked in respect of the offences allegedly committed in October 1995.
There is no record of offending by the respondent between the end of 1995 and July 1999. During this period, the respondent travelled to Kununurra in Western Australia.[78] On 22 July 1999, the respondent was refused entry to a hotel in Kununurra because of his state of intoxication. He became aggressive towards staff and produced a pocket knife. He shouted abuse and threats at staff and waived the knife in the air before walking from the area. He was arrested and charged with threatening words or behaviour. On 30 July 1999, he pleaded guilty to that offence and was fined $50.
2000s
[78] Exhibit A, pages 2 and 16.
On 1 November 2000, the respondent was in Katherine, in the Northern Territory and was charged with unlawfully damaging property. The respondent was bailed but on 16 November 2000 he failed to appear at court and a bench warrant was issued for his arrest. He was arrested on the warrant.
On 6 December 2000, the respondent appeared in the Darwin court of summary jurisdiction and was convicted and sentenced for the offence of unlawfully damaging property committed on 1 November 2000. He was also convicted of being disorderly on the same date. He was sentenced to 1 month imprisonment backdated to 20 November 2000, the date of his arrest. The sentence was suspended for a period of 12 months.
On 31 March 2001, the respondent allegedly committed another offence of damaging property valued at over $500. He was bailed but failed to appear in court in Katherine on 19 April 2001 in accordance with his bail undertaking. A bench warrant was issued.
After being bailed, the respondent returned to Western Australia. It was at this time he committed the offences which later precipitated the CDO being made by Jenkins J.
On 18 June 2001, whilst on bail, the respondent had befriended a woman in Kununurra who was looking after seven children, including a young girl who was then 5 years of age. The following events occurred:[79]
(a)The respondent was in a tent where the family was sleeping. The respondent grabbed the 5‑year‑old girl and tried to pull her away from the woman. The respondent then hit the woman on the back of the head and arm. The respondent left the tent with the 5‑year‑old girl. The woman was unable to follow them because she was dizzy and she went back to sleep.
(b)The respondent took the child approximately 1 km from the tent. When the child screamed or cried, the respondent smashed a rock against the back of her skull. The rock weighed 2.13 kg. The blow caused a life threatening injury. He also took a length of rope from his bag and wrapped the rope around the child's neck and tightened it, intending to strangle her. She lost consciousness.
(c)The respondent then raped the girl vaginally and anally.
(d)Sometime later, the respondent carried the child to the local hospital. He lied to them about how she had received her injuries. Whilst the victim was being treated, the respondent left the hospital. A short time later he was arrested and remanded in custody.
[79] Exhibit A, page 2; Exhibit B, pages 391 - 392.
On 2 October 2001, the respondent pleaded guilty to unlawful wounding, attempted murder and two counts of sexual penetration of a child under the age of 13 years.
On 7 October 2001, whilst in custody, the respondent committed a prison offence of threatening behaviour towards officers.
On 31 October 2001, the respondent was sentenced to a total sentence of 13 years' imprisonment with eligibility for parole. The sentence was backdated to 21 June 2001. The State appealed the sentence and on 9 May 2002 it was increased from 13 to 17 years' imprisonment.
On 6 June 2002, the respondent pleaded guilty in the District Court before Jenkins J to the assault occasioning bodily harm on the woman who had the care of the 5‑year‑old victim. He was sentenced to 16 months' imprisonment to be served cumulatively upon the 17 years' imprisonment.
Between December 2001 and December 2003, the respondent was involved in a number of violent incidents in prison. He also reported hearing voices.
On 11 December 2003, the respondent was transferred to the Frankland Centre at Graylands Hospital for assessment. He remained in the Frankland Centre until 5 January 2004. The discharge summary noted that prior to his admission he had been displaying increased irritability and intermittent aggressive outbursts in prison, which had become more prominent sometime after the respondent had refused to take his medications. It was noted that he had no documented past history of psychosis prior to his first admission to the Frankland Centre in July 2001.
During the 2001 admission there had been no clear evidence of a major mental illness. A cognitive assessment was performed which showed an IQ in the subnormal range of intellectual functioning. No organic brain disease was identified. It was thought that the respondent's abusive and unstimulating early childhood, compounded by substance abuse, was the most likely cause for his behaviour at that time.
The 2004 discharge report noted that in the preceding two years, the respondent had been seen by a visiting psychiatrist and there was an increasing suspicion of a developing psychotic disorder. He commenced treatment with Risperidone in April 2002.
On his admission to the Frankland Centre in December 2003, the respondent said he could hear the prison guards and other prisoners talking about chopping up his sisters and nieces. He said that the guards put videos on so he could watch it on TV and he could hear them screaming. On admission, the respondent was agitated, hostile and verbally aggressive. He frequently shouted and verbally abused staff. He was unable to agree to treatment to decrease his level of agitation. He was given drugs which gradually settled his mental state. After a couple of weeks he said that he could no longer hear the prison guards talking to him through the television. However, he revealed that he could hear some female voices but they were not threatening. He was apparently ambivalent about taking medication on return to prison. Unfortunately, the respondent had to be returned to prison due to the pressure on available beds at the Frankland Centre.
In 2005, the respondent's mental state deteriorated. This appeared to be connected to a period in which he was not receiving his antipsychotic medication. On 17 June 2005, the respondent was again admitted to the Frankland Centre with possible intention to act on his delusions. At that time he had a delusional belief about having a foreign body stuck in his throat. He had no insight and his judgment was impaired. His medication was increased and given by depot injections. He continued to be observed to be responding to unseen stimuli. However, he did not attempt to act on his delusions and was not a management problem. Again, due to the pressure of available beds, the respondent was discharged back to Casuarina Prison on 2 July 2005.
2010s
For a number of years after that, the Department of Corrective Services health services progress notes indicate that the respondent had poor personal hygiene, was dishevelled, had restricted conversation and had difficulty sleeping. It was suspected on a number of occasions that he was responding to unseen stimuli. However, references to those matters gradually decreased in frequency so that by 2012 and 2013, the notes recorded that the respondent was mentally stable, his mood was good, and he was not experiencing any auditory hallucinations or experiencing sensory disturbances. He expressed himself as being content to stay in prison and was happy with his prison job. He continues to receive Risperidone twice a week by injection.
The following summary in Jenkins J's reasons draws together her Honour's assessment of the respondent as at November 2013:
[The respondent] has been convicted of sexual offences relating to four incidents that occurred within an 18 year period. The last group of offences were the most serious and involved a very vulnerable victim and extreme violence. [The respondent] has not been able to confront his offending, the causes for it or address what he needs to do to prevent it occurring again. Because of his disability and his mental health issues, I cannot say that he has wilfully refused to rehabilitate himself. However, it is apparent that he is not rehabilitated. Whatever changes have occurred in him since he last offended have primarily occurred through a deterioration in his mental health and the calming effect of the antipsychotic medication he receives. In my opinion, [the respondent's] history shows that he has a propensity, in the sense of an inclination or tendency, to commit serious sexual offences in the future if he was left unmedicated. The only question is to what extent his medication, if he continues to take it, will prevent that inclination or tendency coming to the fore. The psychiatrists are of the opinion that the medication will probably help in that respect, but they cannot guarantee that it will prevent future offending. Neither did they express the view that it will significantly reduce his risk of reoffending.[80]
(3) Psychiatric history
[80] Director of Public Prosecutions (WA) v White [73] (Jenkins J).
The evidence adduced by the State includes information regarding the psychiatric history of the respondent. A useful summary was prepared by Dr Wojnarowska in her most recent report.[81] I will not recount that history in full detail, but note the following matters.
[81] Exhibit B, page 394.
In 1985, the respondent was assessed by two psychiatrists following his sexual offending, with a resulting diagnosis of antisocial personality disorder. One of the psychiatrists also made diagnosis of reactive depression, organic behavioural disorder and raised concerns that the respondent had cerebral damage due to his alcohol and drug use, and his boxing career.
In December 2001, the respondent was transferred to the Frankland Centre at Graylands Hospital after he reported hearing voices. An extensive assessment concluded that there was no evidence of a major mental illness. However, it subsequently became evident that the respondent had developed a psychotic illness and he was prescribed an antipsychotic medication, namely risperidone.
The respondent had two further admissions to the Frankland Centre (in 2003 and in 2005) where he was diagnosed with schizophrenia. It appears that the respondent's mental state stabilised as a result of the antipsychotic medication he was prescribed. Although Dr Wojnarowska has noted there have been no concerns regarding the respondent's mental state since around 2013, reports from the custodial staff and others indicate that the respondent often presents as irritable and unable to maintain focus.[82]
[82] Exhibit B, page 394.
In 2013, the respondent was assessed by Dr Febbo. The respondent was then diagnosed with psychotic disorder not-otherwise specified (Psychosis NOS), antisocial personality disorder (ASPD), and personality change due to head injury and mild mental retardation. A further review by Dr Tanney came to a similar conclusion, with diagnoses of psychosis of unspecified origin, intellectual disability, ASPD, substance use disorder and paedophilia (although the final diagnosis was solely based on the age of the victim in 2001). The respondent has also been historically diagnosed with borderline personality disorder.[83]
[83] Exhibit B, page 394.
There is some evidence before me that the respondent self-harmed in February 2020. No specific details were identified in the evidence, other than an indication that the respondent had been stressed at the time due to the uncertainty regarding accommodation and release to the community.[84]
(4) Dr Wojnarowska - Forensic Consultant Psychiatrist
[84] Exhibit B, page 394.
Dr Wojnarowska reviewed the respondent for the purposes of the statutory reviews undertaken in 2018 and 2021. Her earlier reports were produced in evidence before me.[85]
[85] Exhibit A, page 319 and page 349.
Dr Wojnarowska is a medical practitioner registered with the Australian Health Practitioner Regulation Agency with a specialty in Psychiatry and with a sub-specialty in Forensic & Child and Adolescent Psychiatry. Dr Wojnarowska is a fellow of the Royal Australian and New Zealand College of Psychiatrists with some 15 years' experience in forensic psychiatry.
Dr Wojnarowska reports that the respondent has a history of psychotic illness which has attracted various diagnoses including schizophrenia. The respondent has also been diagnosed with intellectual disability and has been registered with the NDIS. The respondent has been fully compliant with his treatment with antipsychotic depot injections and it is apparent that his illness has been in remission for at least eight years.
The respondent is presently taking a variety of medications to treat his medical conditions such as hypothyroidism and hyperlipidaemia. These conditions are well controlled on his current treatment, according to Dr Wojnarowska.
Dr Wojnarowska outlined in her report that, since her previous review of the respondent in 2021, he has not participated in any further interventions or programs. He was referred to Forensic Psychological Intervention, but it was determined he was unsuitable for counselling due to his treatment saturation and the fact that he was unlikely to achieve further treatment gains whilst in custody.

Dr Wojnarowska is familiar with the respondent's NDIS plan, which she noted was to involve 24/7 support but not supervision, with accommodation options having been assessed by COMU, NDIS, and the WA Police.
Dr Wojnarowska also explained in her report the details of the occupational therapy functional assessment which had been performed in 2021. That assessment indicated that the respondent has:
… a history of schizophrenia, an intellectual disability, and an acquired brain injury. He has significant impairments relating to his cognitive skills including attention, executive skills, judgement, insight, future planning, self-evaluation, memory, and communication/interaction skills that result in occupational performance deficits and heightened vulnerability to safety issues.[86]
[86] Exhibit B, page 393.
Dr Wojnarowska identified a number of prison incidents in which the respondent has been involved since 2021. Four of the incidents related to damage of property including a power point, TV and TV remote. The respondent explained that his TV set was not in working order, so he decided to damage it to trigger a process of replacement.[87] The other incident occurred when the respondent was found in possession of alcohol brew in his cell. He had previously been charged with the same offence in 2020. These resulted in formal charges. The respondent admitted to the offences but denied experiencing alcohol cravings since being imprisoned and claimed that 'he was not at risk of relapsing into drinking when released, stating that he would "just sit at home" most of the time'.[88]
[87] Exhibit B, page 393.
[88] Exhibit B, page 393.
Dr Wojnarowska reported that the respondent is not considered a management problem by the prison staff and reportedly interacts well with other prisoners.[89]
[89] Exhibit B, page 393.
Dr Wojnarowska's interview with the respondent was revealing. As an overarching observation, Dr Wojnarowska indicated it was evident that the respondent's ability to think logically and to consistently follow certain themes was significantly impaired, which is consistent with his intellectual disability and his IQ of 62. In summary, the respondent reported the following matters to her:[90]
[90] Exhibit B, pages 395 ‑ 396.
(a)the respondent said he continued to be compliant with his medications in prison and had not experienced any psychotic symptoms, such as hearing voices for many years;
(b)the respondent said that he has been able to think clearly with the assistance of medications but importantly, he continued to deny that he had any psychiatric disorder such as schizophrenia (and indicated that regardless of the diagnosis he was happy to remain on treatment and added that he was not experiencing any negative side effects);
(c)the respondent denied being involved in any prison incidents since 2021;
(d)the respondent said that he was coping with stressors of everyday life or difficulties he encounters in prison, and said that he would usually remove himself from situations by walking away - he reported that he had:
… changed my outlook on society, I slowed down and I respect people.
but he was unable to explain what had prompted this change since 2021 and was unable to provide to Dr Wojnarowska any details on what he meant by 'outlook on society', which prompted Dr Wojnarowska to conclude that the respondent appeared to be using phrases or words that he either does not understand or those words have no underlying meaning;
(e)the respondent denied ever sexually offending or assaulting the victims and reported to Dr Wojnarowska that he was not a danger to anyone 'anymore' which was an inconsistency given that he claimed he has never offended in a violent manner;
(f)the respondent indicated that he felt remorseful for his actions which Dr Wojnarowska noted was not congruent with his affect and denial of offending;
(g)when asked how the victims would have felt, the respondent was unable to provide any example;
(h)the respondent said that his offending was related to drinking alcohol and substance misuse, and expressed the opinion that alcohol was the only causative factor in his risk of re‑offending, yet he was confident that he would not relapse despite his 2021 charge in prison, and he reported to Dr Wojnarowska that he had no cravings for alcohol;
(i)the respondent denied having any sexual interest and had no sexual drive, did not masturbate and had no sexual fantasies and so did not require to plan how to manage his sexual drive if released;
(j)the respondent indicated he was aware of the conditions that would likely be attached to any Supervision Order and felt that being subject to the conditions would be very useful for him, and understood that he would be required to continue with his depot injection and to see a mental health team in the community;
(k)the respondent informed Dr Wojnarowska that he considered having employment in the community would be an important protective factor for him, because he requires routine and needs structure of 'I will fail' - that said, he had no specific plans around employment but said that he would be willing to 'try anything'; and
(l)the respondent believed he would not have problems with cooking, budgeting or maintaining his flat, but understood he would require assistance with banking, shopping and paying bills, and considered he had a good NDIS plan and his support workers would assist him to navigate through living in the community.
On the basis of her assessment of the respondent using standard diagnostic tools, and having regard to his medical and psychiatric history, Dr Wojnarowska concluded that the respondent is at high risk of serious sexual re-offending if he is not subject to a restriction order under the HRSO Act.[91] The diagnostic tools relied upon by Dr Wojnarowska were the PCL‑R,[92] the ARMIDILO-S[93] and Static‑99R.[94] These are orthodox tools and processes typically used by experts to undertake risk assessments in respect of sexual offending, and to evaluate psychopathy.
[91] Exhibit B, page 401.
[92] The PCL-R or Hare Psychopathy Check-list, assesses the extent to which an individual's personality structure conforms to the clinical construct of psychopathy. The score obtained is an important component of other risk assessment tools including Structural Clinical Guides. Structural Clinical Guides in contrast use both static and dynamic risk factors.
[93] Dr Wojnarowska applied the ARMIDILO-S tool (or AMRIDILO - Stable), which stands for Assessment of Risk and Manageability for Individuals with Development and Intellectual Limitations who Offend Sexually. Given the cognitive impairment of the respondent, Dr Wojnarowska applied this test rather than the RSVP tool. As Dr Wojnarowska explained, ARMIDILO-S is a comprehensive risk review and community management instrument designed for use with adults with cognitive impairment. It was designed to assist support workers, case managers, guardians, home providers, clinicians and program administrators in identification and management of risk for sexually inappropriate behaviour.
[94] Static‑99R is to position offenders in terms of their relative degree of risk for sexual recidivism based on commonly available demographic and criminal history information that has been found to correlate with sexual recidivism in adult male sex offender. Static‑99R contain 10 items, which are added together to create a total score. Static‑99R does not measure all relevant risk factors and the person's recidivism risk may be higher or lower than that indicated by Static-99R based on factors not included in this risk tool and has a moderate accuracy.
The respondent's PCL-R score was 17, which is 8 points below the threshold of a psychopathy diagnosis. The results were, according to Dr Wojnarowska, consistent with the respondent's diagnosis of ASPD. Further, there were areas of concern identified for the respondent including the need for stimulation, proneness to boredom, impulsivity, irresponsibility, lack of remorse, emotionally shallow, callous/lack of empathy, poor behavioural controls, early behavioural problems, juvenile delinquency, revocation of conditional release and criminal versatility. The respondent also received high scores in one area which is associated with non-sexual and sexual violent recidivism.[95]
[95] Exhibit B, pages 398 - 399.
The ARMIDILO-S assessment revealed a number of stable items, and some acute items. The acute client items refer to behaviours that have changed significantly over the preceding two to three months. The items identified in this regard were:
(a)the changes in victim - related behaviours, with the respondent now being ambivalent in accepting responsibility as compared to denying any previously; and
(b)changes in emotional coping ability, with the respondent now appearing less emotionally labile (in the sense of being less emotionally liable to change), having had no recent incidents in prison, and was able to verbalise how to deal with stressful situations.[96]
[96] Exhibit B, pages 400 - 401.
The stable items included the following matters, according to Dr Wojnarowska:
(a)Supervision compliance - the respondent has a history of non‑compliance with parole and bail conditions, with each of his sexual offences having occurred whilst he was on bail for other offences. The respondent has now declared his preparedness to be compliant with any orders that the court may impose on him. According to Dr Wojnarowska, the respondent demonstrated compliance with the prison's rules for most of his time in prison and his compliance in the community will be reinforced by the presence of his support workers.[97]
(b)Treatment compliance - the respondent is compliant with his medication treatment but due to his intellectual disability, his capacity to benefit from psychological treatment is limited, according to Dr Wojnarowska. It is anticipated by Dr Wojnarowska that a continuation of the counselling in the community will be an important protective factor in mitigating his re‑offending, providing the respondent with a sense of stability.[98]
(c)Sexual deviance - there has been no evidence of any particular sexual deviance according to Dr Wojnarowska. The respondent sexually offended against all age groups including females aged 75 years, 40 years and a 5‑year‑old. The first two victims were strangers while the female child was known to him.[99]
(d)Sexual preoccupation - Dr Wojnarowska described this as 'unknown', noting that the respondent had consistently denied experiencing sexual thoughts, however given his relatively young age, this does not appear to be an accurate reflection of his functioning.[100]
(e)Emotional coping ability - there has been an improvement in the respondent's mental state according to Dr Wojnarowska. Additionally, the respondent has developed some skills in emotional regulation. The respondent asserts he was able to not take things personally and diverts his attention to pleasurable activities. He also developed some insight into his difficulties and short comings.[101]
(f)Relationships - in Dr Wojnarowska's opinion, this remains a risk factor as the respondent is highly institutionalized and does not have the ability to engage in a meaningful relationship. Despite his claims of currently being asexual, this is unlikely to be the case, according to Dr Wojnarowska.[102]
(g)Impulsivity - in Dr Wojnarowska's opinion, the respondent is highly impulsive due to his frontal lobe dysfunction and, although the current treatment can mitigate his high impulsivity to some degree, this factor will always be highly relevant in management of him and would be best mitigated by the presence of his support workers.[103]
(h)Substance abuse - Dr Wojnarowska noted that the respondent has a history of substance use disorder which appears to be in remission in custody. Dr Wojnarowska raised a concern in relation to the respondent's relatively recent charge of alcohol possession. Again, strict order conditions and the presence of 24 hour support would be sufficient to mitigate this risk, according to Dr Wojnarowska.
(i)Mental health - Dr Wojnarowska noted that the respondent's mental state is currently stable, however there is a risk of him ceasing the use of medications in the community and therefore follow-up by mental health services is imperative. According to Dr Wojnarowska, the State Forensic Community Mental Health Services have been briefed about the possibility of the respondent's release from prison and will accept the referral.
(j)Unique considerations - Dr Wojnarowska observed that the respondent has no social supports in the community but has a strong drive to engage in meaningful activities. As the respondent has many cognitive and emotional deficits, and despite presenting as confident about his life in the community, Dr Wojnarowska concluded that the respondent would inevitably face many challenges if released to the community.[104]
[97] Exhibit B, page 399.
[98] Exhibit B, page 399.
[99] Exhibit B, page 399.
[100] Exhibit B, page 399.
[101] Exhibit B, page 400.
[102] Exhibit B, page 400.
[103] Exhibit B, page 400.
[104] Exhibit B, page 400.
Turning lastly to the Static‑99R tool, Dr Wojnarowska reported that the respondent's score placed him in the 'Well Above Average Risk' category. As explained by Dr Wojnarowska:
… in routine samples with the same score, the 5 year recidivism rate is between 36% to 45%. 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. Conversely between 64% and 55% would not be charged or convicted of a new sexual offence during that time period.[105]
[105] Exhibit B, page 398.
By way of drawing the foregoing evidence together, Dr Wojnarowska concluded that, since her last review of the respondent in 2021, he has made some progress, with his emotional self‑management having improved. Further, the respondent is compliant with treatment and has responded well to the introduction of antidepressant medications. He has now demonstrated that he could manage in a self‑care unit. However, Dr Wojnarowska emphasised that:
… the risk factors relevant to his offending including his executive dysfunction (frontal lobe impairment) associated with impulsivity and propensity for violence, history of alcohol and drug use, and limited social support are still highly relevant and without the presence of support workers, his risk would not be manageable in the community.[106]
[106] Exhibit B, page 401.
Dr Wojnarowska's opinion was that the respondent's primary risk for sexual offending would be both predatory and opportunistic towards predominantly vulnerable females of various ages.
There would not be much planning or grooming involved; he is likely to be intoxicated and angry, following an argument with someone, not necessarily a potential victim. The victim may be a stranger that he encountered on the street, in a park or any other public place. Equally possible would be [the respondent] offending against a vulnerable female that is known to him either through family connections or being an acquaintance. The vulnerability could pertain to victim's age (very young or old), or their physical or mental frailty. His anger, lack of ability to empathise and the presence of disinhibiting factors such as drugs/alcohol would be a driving force in his offending.[107]
[107] Exhibit B, page 401.
As to the potential harm which would result, Dr Wojnarowska referred to the harm to the victim as potentially being life threatening or having an equally serious long term sequelae. As to warning signs of the respondent's re-offending, this would include his relapse into alcohol and cannabis use, and disengagement from his therapists and supervising agencies.[108]
[108] Exhibit B, page 401.

Finally, I turn to the recommendations made by Dr Wojnarowska, which can be summarised as follows:
(a)The respondent should commence psychological counselling with the focus on the areas identified by the treating forensic psychologist.[109]
(b)The respondent requires indefinite treatment with antipsychotic medications and a referral to the State Forensic Community Mental Health Service for active management has already been put in place. The respondent should continue with antidepressant medications.[110]
(c)Dr Wojnarowska understood that the respondent would initially receive 24 hour support if released into the community, with the NDIS plan emphasising the fact that the function of the staff would be to support, not supervise. However, according to Dr Wojnarowska, the presence of a responsible person with whom the respondent is likely to develop a relationship, will be sufficient to negate his risk. Dr Wojnarowska stated:[111]
It is crucial however, that [the respondent's] support staff has a direct line of communication to COMU and police if required and appropriate briefing, training and supervision is provided by their employer.
(d)As for employment, Dr Wojnarowska's assessment was that the respondent would require a highly structured and supervised form of employment and, obviously, he would require assistance in obtaining employment.[112]
(5)Ms Dabala - Senior Community Corrections Officer
[109] Exhibit B, page 401.
[110] Exhibit B, page 402.
[111] Exhibit B, page 402.
[112] Exhibit B, page 402.
Ms Dabala provided the court with evidence as to the proposed community supervision plan which would be put in place in the event the respondent was released on a Supervision Order. In her report and in her oral evidence, Ms Dabala outlined:
(a)the role of the Behavioural Support Practitioner who would support the respondent (often referred to as the BSP);
(b)the role of the Occupational Therapist; and
(c)the role of the Specialist Support Coordinator.
Ms Dabala explained that the respondent's allocated carers would commence visits with him in custody to establish relationships with him prior to any release. The respondent had indicated to Ms Dabala that he was aware he is required to receive his monthly depot injections in the community in order to maintain stability of his mental health.[113]
[113] Exhibit B, page 405.
An important part of Ms Dabala's evidence was her overview of the supports to be provided through the NDIS. Ms Dabala explained that:[114]
… a dedicated team under the Complex Support Needs Branch are allocated planning for HRSOs who are also NDIS participants and via the creation of an individually tailored transition plan (authored by COMU), the NDIA produce an initial plan that confirms the level of core support for community management.
[114] Exhibit B, page 406.
Ms Dabala explained that the initial plan is typically based on a higher number of hours than that requested by the clinical assessments in order to enable transition into the community and then reassessment for ongoing support (which arise out of the Occupational Therapist and Behavioural Support Practitioner assessments). Ms Dabala noted that the respondent's transition plan was last updated by the COMU in January 2022 and operational meetings are held regularly between the COMU and Complex Support Needs Branch of the NDIA to monitor the pathway. I understand from her evidence that, since mid-2021, three individuals who are subject to the HRSO Act have been released under Supervision Orders through the pathway I have just mentioned.
Initially, the respondent's level of approved funding through the NDIS was quite low (less than $25,000) and inadequate to support his release into the community. That has since been revised extensively, with the updated NDIS Plan approved for the period from 6 June 2023 to 5 June 2024 including 'total funded supports' in the amount of $807,189.54.[115] The NDIS Plan includes funding for Supported Independent Living which would involve a 1:1 individualised support (with male carers only) with an active overnight shift of the carers to support the respondent. Additionally, the funding extends to social community and civil participation of some 18 hours per week on a 1:1 individualised basis.[116]
[115] Exhibit B, pages 367 - 386.
[116] Exhibit B, page 368.

I am also comfortably satisfied there is a clear pattern to the respondent's behaviour of offending in an unpredictable and impulsive manner, and of engaging in sexual offences involving violence against women and typically whilst he has been on bail or subject to some court order.
Section 7(3)(e) and (f) - Participation in any rehabilitation program and effects
The respondent has not participated in any further intervention or programs since 2021 at which time he was found to be unsuitable for ongoing intervention due to his treatment saturation in custody and the unlikelihood of achieving further treatment gains whilst in custody. He demonstrated some progress since the last statutory review in the sense of a degree of compliance generally including by taking his medication and managing in a self-care unit.
I find that the respondent has limited capacity to benefit from psychological treatment as a result of his serious intellectual disability.
Section 7(3)(g) - Antecedents and criminal record
I have detailed the respondent's serious criminal record earlier in these reasons. He has committed several serious sexual and violent offences against women and girls in his lifetime. The offences in June 2001 were of an extremely serious and violent nature, involving the attempted murder of a 5‑year‑old girl, followed by the vaginal and anal rape of the girl, combined with the unlawful wounding of the woman who was looking after the girl. The sentence he ultimately received for the offences, namely 17 years, reflects the extremely serious nature of the offences and the effects on the victims concerned.
Section 7(3)(h) - Risk of committing such offences if not subject to a restriction order
I have recounted the evidence of Dr Wojnarowska above, which is to the effect that, having regard to various diagnostic tools, the respondent is at a high risk of sexual re‑offending if he is not subject to restriction orders under the legislation. I refer to the finding I have made in this regard at [158] above.
Section 7(3)(i) - The need to protect members of the community from the risk of further serious offences
The evidence demonstrates there is a strong need to protect members of the community from the risk of further serious offences being committed by the respondent. I find accordingly. I will return to this issue below when considering the type of restriction order which should be made by the court in the circumstances.
Conclusion as to whether the respondent is a high risk serious offender
To determine whether the respondent is a high risk serious offender, the court is required to consider whether his risk of serious re‑offending is 'unacceptable'. This requires the court to consider the nature of the risk, the likelihood of the risk materialising and the serious consequences for the respondent if a restriction order is made.[133] These are matters which I have addressed above, by reference to the factors specified in s 7(3).
[133] Italiano v The State of Western Australia [2009] WASCA 116; Director of Public Prosecutions (WA) v Williams [63].
The respondent has a significant cognitive impairment and been diagnosed with ASPD, among other things. He has chronic mental health issues. The very clear medical evidence is that the respondent is at a high risk of serious sexual offending in the future unless restricted by the regimes in the HRSO Act. The respondent's re‑offending would be both predatory and opportunistic towards predominantly vulnerable females of various ages, and would not involve much planning or grooming. The combination of behavioural issues displayed by the respondent is, in my view, highly dangerous and undoubtedly requires a high degree of control and supervision.
It will be evident from the findings I have just made and the evidence I have recounted that I consider it is necessary to make a restriction order in relation to the respondent to ensure the adequate protection of the community against an unacceptable risk of the respondent committing a serious offence in the future.
In reaching this finding I recognise the making of a restriction order would have serious consequences for the respondent, which I must consider as part of the evaluation for the purposes of the Application. A restriction order could involve the respondent's detention and loss of liberty, or his release into the community on a Supervision Order with associated conditions. However, the reality must be recognised (as Jenkins J noted some years ago) that the respondent simply has no realistic ability to live independently in the community without a minimum level of daily support. The respondent's chronic mental health issues, cognitive impairment and intellectual disability demand that he be subject to appropriate support and supervision.
Further, the paramount consideration under the HRSO Act is the need to ensure adequate protection of the community, which must take precedence over the serious consequences to the respondent of the court making an order, particularly given the high risk of the respondent engaging in serious violent sexual offending in the future.
In all the circumstances, there is a compelling case to support the conclusion the respondent is a high risk serious offender within the meaning of the legislation and I consider it is undoubtedly necessary to make a restriction order to ensure the adequate protection of the community against the respondent's unacceptable risk of committing a serious offence.
(2)Substantial compliance with the standard conditions
Having found the respondent is a high risk serious offender, I must either make a CDO in relation to the respondent, or make a Supervision Order.
In making this assessment, the paramount consideration is the need to ensure the adequate protection of the community. The need to ensure the adequate protection of the community does not exclude other considerations.
A court cannot make a Supervision Order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of such an order.[134] The standard conditions are those contained in s 30(2) and include reporting, supervision and electronic monitoring. The onus is on the offender to satisfy the court that he will 'substantially comply' with the standard conditions.[135]
[134] HRSO Act, s 29(1).
[135] HRSO Act, s 29(2) and see DPP (WA) v Hart [52] (Fiannaca J).
The State does not submit that the court should impose a CDO.
Rather, the State submitted that, if the court was satisfied the respondent will substantially comply with the standard conditions, there is evidence upon which the court could find that the community will be adequately protected from the risk of the respondent re-offending by his release on a Supervision Order.[136]
[136] State's primary submissions [84].
Before analysing the key considerations relevant to the question of substantial compliance, I should briefly state the test the respondent is required to satisfy. The statutory language employed within the HRSO Act mirrors the predecessor legislation, which was the subject of some analysis by Fiannaca J in DPP (WA) v Hart. His Honour's analysis led him to conclude as follows:[137]
(1)The words 'will substantially comply with' should be given their ordinary meaning, consistent with the purposes of the legislation and of the general conditions of a supervision order, the overall object of which is to achieve the adequate protection of the community by appropriate management and mitigation of the unacceptable risk that the respondent will commit a serious sexual offence.
(2)The question of what will be substantial compliance will be a matter of judgment that will depend on the circumstances of each particular case.
(3)The assessment is to be made in the context that it is one aspect of the broader exercise of determining whether the community can be adequately protected if the respondent is released again subject to a supervision order.
(4)It is consistent with the ordinary meaning of the language of the section, in context, that the word 'substantially' is used in a relative sense and involves an assessment of the degree of compliance that the respondent is likely to achieve.
(5)While the prospect of trivial or minor contraventions will not (and ordinarily should not) preclude a finding that the respondent will substantially comply with the standard conditions of a supervision order, the assessment of whether the respondent will substantially comply involves considerations other than simply whether any potential breach will be trivial or minor.
(6)The court must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with and will enable the attainment of the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious sexual offence.
(7)Factors that are relevant to that assessment would include the respondent's history of compliance and non-compliance and the factors set out … above.
[137] DPP (WA) v Hart [52] (Fiannaca J).
I have earlier set out my factual findings in relation to the NDIS plan which has been approved in relation to the respondent, the associated funding package, the identified accommodation, the community supervision plan and the transitional plan for the respondent. It is clear to me that the representatives of the various agencies involved, together with the associated professionals who have been consulted, have expended considerable energy and thought in developing these plans and programmes to assist the respondent's reintroduction to the community.
I am satisfied these plans and programmes are suitable and appropriate for the respondent in order to manage the risks which would arise through his release from custody, together with the proposed conditions to be attached to any Supervision Order, which I will address.
An essential part of the overall plan is the presence of support workers, which will assist to ensure the risks associated with the respondent are manageable in the community. These support workers are not intended to supervise the respondent or enforce any conditions, but rather to support the respondent's reintroduction into the community and to assist him to build his capacity in the longer term.
I recognise there are aspects of the evidence before the court which weigh against the imposition of a Supervision Order (in the sense that those aspects of the evidence point to the risk of the respondent's being unable to comply with the standard conditions and highlight potential harm to the community through the respondent's release from custody). For example, the evidence is to the effect that the respondent displays impulsive behaviour and poor behavioural controls. There is a risk of the respondent committing offences in an opportunistic fashion. The respondent lacks empathy and has demonstrated a degree of denial in relation to his past offending. He has a history of non‑compliance with parole and bail conditions. He appears to understate the risk of a relapse through alcohol use and understate the degree to which he has continuing sexual thoughts and ideations.
All of these matters must be taken into account in assessing whether the respondent has discharged his onus under s 29 and in assessing the risks to the community. I must also consider the respondent's compliance with his medication requirements, which has assisted to manage the respondent's behaviours and his mental stability. The respondent has not presented as a management issue in recent years whilst in prison, despite some low level incidents which have brought him to the attention of the prison authorities. If released into the community, I also note the respondent would continue to receive support from a community mental health team to supervise and support him.
In all the circumstances, I am of the opinion, having regard to the evidence adduced on this application, taking into account the antecedents of the respondent, and given the respondent remains a high risk serious offender, that the respondent has discharged his onus of demonstrating that, on the balance of probabilities, he will substantially comply with the standard conditions of a Supervision Order under the HRSO Act. The standard conditions include that he will report to a CCO as required, comply with reasonable directions from a CCO, not commit a serious offence during the period of the order and be subject to electronic monitoring. Further, having regard to the consideration to ensure the adequate protection of the community, which is expressly recognised within the legislation as being paramount, I consider it would be appropriate to rescind the CDO and to make a Supervision Order.
The evidence presented on this Application may be contrasted with the evidentiary position which obtained in The State of Western Australia v Blurton [No 3], a decision to which I have earlier referred and which similarly involved considerations arising under the NDIS Act. The court noted in that matter that the absence of suitable accommodation and the insufficient daily support permitted under the offender's revised NDIS plan were each significant factors, and together with other factors, pointed to the risk of re‑offending not being capable of being adequately managed in the community.[138]
[138] The State of Western Australia v Blurton [No 3] [337] and [338] (Derrick J).
I accordingly propose to rescind the CDO and make a Supervision Order.
However, given the high degree of risk associated with the respondent's reintroduction into the community after such a lengthy period of incarceration, and given the continuing uncertainties in my mind (which have been lessened by the email evidence from the State post‑hearing) concerning the continuation of the NDIS funding package at the current approved levels, I do not consider it would be appropriate to order the release of the respondent on a Supervision Order for a period of 10 years. In my view, the imposition of a Supervision Order with such a lengthy duration, even with the stringent conditions proposed by the State, would be quite unwise given the medical assessments of the respondent, his antecedents, and the continuing need to assess the funding and accommodation needs of the respondent.
Putting it another way, I could not be satisfied that the respondent would, over the course of a 10 year Supervision Order, comply with the standard conditions under the HRSO Act 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 sexual offence. Over such a lengthy period, among other things, there is a greater possibility that the funding available to support the respondent will decrease to the point that the protection of the community is simply not adequate enough to permit the respondent to remain within that community. There are safeguards in place to prevent the funding decreasing in this manner, and it is apparent that COMU would have adequate notice of such changes in any event. Nonetheless, as the NDIA is not a party to these proceedings and as I cannot discount the risk of this eventuality occurring, I remain concerned about the imposition of a Supervision Order with a lengthy term.
Instead, I consider it appropriate to order the release of the respondent on a Supervision Order for a period of 3 years. As I have noted already, I take that view because the respondent has been held in custody now for the last 22 years, has spent much of his life in custody, and while there are signs of improvement in his mental stability and outlook, it seems to me that the release of the respondent into the community for a 10 year period, albeit subject to onerous conditions, but without any guarantee that his NDIS plan (and associated funding and accommodation needs) would continue to be met for that entire period, would be for the court to countenance a high risk scenario developing which is antithetical to the objects of the legislation.
The more cautious approach, in my view, is to place a shorter time limit on the Supervision Order, such that before the expiration of the order, the State would have the opportunity to apply pursuant to s 36(1) for a restriction order to be imposed, which might be either a CDO or a further Supervision Order.
Of course, it is not for the court to dictate to the State whether any such application should be brought. That would be a matter for the State. The bringing of such an application at that time would, however, permit the court to assess the evidence then available as to the respondent's circumstances, the status of funding and his accommodation arrangements, in order to evaluate and determine whether the status quo should remain (i.e. a Supervision Order should be made) or whether the adequate protection of the community required that a CDO then be imposed.
It is apparent on the evidence adduced on this Application that considerable effort and energy has been expended by the representatives of COMU, and a thoughtful and considered approach has been adopted by those representatives, in considering the particular circumstances of the respondent, such that the court can have the requisite confidence that those representatives will take appropriate steps if required:
(a)to recommend that an application be made under s 49 of the HRSO Act to amend the conditions of the Supervision Order, and so to allow the court to consider whether such amendments should be made;
(b)to monitor the respondent's compliance with the Supervision Order and initiate any appropriate contravention applications under s 53 of the HRSO Act for the court's consideration; and
(c)lastly, to initiate an application to the court under s 36 of the HRSO Act to apply for a restriction order before the expiry of any Supervision Order concerning the respondent, to allow the court to consider whether a restriction order should be made (and if so, what type of such order) to manage the risks of the respondent after the initial 3 year period has expired.
Seen in this context, the making of a Supervision Order for a shorter period (than the 10 year period proposed by the State) is not counter‑intuitive. Rather, it recognises that, in the present case, the statutory regime is sufficiently flexible as a whole to allow for a nuanced approach to be adopted by the court to the imposition of a Supervision Order (and to its duration and terms).
Lastly, I consider it appropriate to emphasise the objects of the legislation as explained by the plurality of the High Court in Garlett v The State of Western Australia:[139]
The purpose of a legislative regime, such as the DPSO Act [the Queensland legislation] or the HRSO Act, is discernibly distinct from the imposition of retribution or deterrence pursued by the criminal law. To the extent that detention or supervised release is part of the legislative regime, the character of the curtailment of the liberty of the individual offender under the regime can be seen to be protective rather than punitive because any curtailment of liberty must be supported by the risk evaluation contemplated by s 7 of the HRSO Act. In that evaluation, considerations of retribution and deterrence, central to sentencing by way of punishment under the common law, have no part to play. In addition, any curtailment of liberty must be no greater than is necessary adequately to protect the community from the demonstrated unacceptable risk of harm to the community ...
[139] Garlett v The State of Western Australia [55] (Kiefel CJ, Keane and Steward JJ).

Recognising the protective purpose of the legislation and the need to ensure the adequate protection of the community, whilst not seeking to reduce that risk to the community to zero, I must choose an order under the HRSO Act that is least invasive or destructive of the respondent's right to be at liberty. The appropriate disposition in the present case, in my opinion, is to allow the release of the respondent into the community, but subject to the high level of control and supervision of a Supervision Order regime with stringent and extensive conditions, being those conditions set out in Attachment A to these reasons, for a limited period of 3 years.[140]

H. Conclusion

[140] The conditions are those proposed by the State and to which Dr Wojnarowska and Ms Dabala referred in this evidence, with changes made to clarify condition 56 concerning the extent of 'pornographic materials'.

For foregoing reasons, I will make orders to the following effect:
1.That, upon the coming into effect of the supervision order, the continuing detention order made in relation to the respondent be and is hereby rescinded.
2.That, having found the respondent is a high risk serious offender within the meaning of s 7(1) of the High Risk Serious Offenders Act 2020 (WA), a supervision order in relation to the respondent is to be made for a period of 3 years from 4 December 2023, not being a date earlier than 28 days from the date of the order, on the conditions set out in Attachment A to these reasons.

ATTACHMENT A
SUPERVISION ORDER CONDITIONS

Pursuant to section 68(1)(b) of the High Risk Serious Offenders Act 2020 (WA), the Court, having found that the Respondent is a high risk serious offender within the meaning of section 7(1) of the High Risk Serious Offenders Act 2020 (WA), makes a supervision order in relation to the Respondent, for a period of 3 years from 11 December 2023, not being a date earlier than 28 days from the date this Order is made, on the following conditions:

You, STEPHEN NEIL WHITE, must:

STANDARD CONDITIONS REQUIRED BY THE HRSO ACT

Report to a Community Corrections Officer (CCO) 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 CCO as directed by the Court;
Notify a CCO of every change of the person's name, place of residence, or place of employment at least 2 business days before the change happens;
Be under the supervision of a CCO, which includes, comply with any reasonable direction of the officer (including 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 CCO;
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 [address redacted] and spend each night at that address or at a different address only if such different address is approved in advance by a CCO assigned to you;

Reporting to a CCO and supervision by a CCO

Report to a CCO at your approved release address within normal business hours on the day of release from custody under this order and be under the supervision of a CCO, and comply with the lawful orders and directions of a CCO;
Not commence or change paid or unpaid employment, volunteer work, education, or training without the prior approval of the CCO;

Attendance at programs or treatment

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

Reporting to WA Police

Report to the Officer-in-Charge of the High Risk Serious Offender team 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 High Risk Serious Offender team 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 the seizure of any such items that the Police Officers believes to contravene the conditions of the Order;
Remain at your premises and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the provisions of the High Risk Serious Offenders Act 2020;
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 screen name(s), user name(s), and email addresses;

Disclosure/Exchange of Information

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

Restrictions on contact with Victims

Have no contact, directly or indirectly, with the victims of your sexual and violent offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-offender Mediation Unit of the Department of Justice;
Unless contact with 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 sexual or violent offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victims at all times;
Report to the CCO and WA Police any direct or indirect contact with the victims of your offending (including sexual offending) on the next working day you report to the CCO or Police;

Criminal conduct

Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either sexual offences, violence, threats of violence, or the possession of weapons or offensive instruments;
Not commit an offence under s202, s203, s204, s557K Criminal Code 1913 (WA) or s 17(1) 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 prescriber;
Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997;
You must not assault, threaten or abuse any member of the departmental staff or an agent providing a service on behalf of the Department of Justice;

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 you approved address as directed by a CCO from time to time;
When subject to a curfew under this order, present yourself for inspection at the front door or front yard of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew;
When subject to a curfew under this Order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew;

Prevention of high-risk situations

With the exception of public transport, not to enter in or on any vehicle, including taxis and rideshare vehicles such as but not limited exclusively to Uber, 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 the CCO;
Not enter any residential address in which a female resides or is known to reside, unless authorised in advance by a CCO;
Not permit any female to enter any residential address in which you reside, unless the identity of such person is approved in advance by a CCO;
Report at your next contact with your CCO, the formation of any social association (of more than 2 contacts by any means), domestic, romantic, sexual or otherwise intimate relationship by you with any person;
As directed by your CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence an ongoing social association (of more than 2 contacts by any means), domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer;
Not associate with any person known by you to have committed a sexual offence unless such association is authorised in advance by the CCO;
Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place;
Provide a valid sample pursuant to Condition 38;
Not purchase, or possess, or consume or use alcohol;
Not to go, enter any part of your body inside, or remain at any licensed premises unless permitted or required to do so for the following reasons:
a)For the purpose of averting or minimising a serious risk of death or injury to yourself or another person
b)For a purpose, and duration approved in advance by a CCO;
c)On the order of a CCO or Police Officer;
Not remain in the presence of any person who is affected by alcohol or prohibited substances, or you ought to know are affected by alcohol or prohibited substances, unless the identity of such person is approved in advance by the CCO;
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 remove the persons consuming prohibited drugs from your residence;
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 CCO and such contact is supervision at all times by an adult approved in advance by the CCO;
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 the name, address, location and any details known by you, of any contact with a child under the age of 18 years both to your CCO and to the Police on the next occasion you report to that person or agency;
Not to 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, including former victims of your previous offending, without prior CCO approval;
Have no contact with, membership of or affiliation with clubs, associations or groups where membership includes children, unless approved by a CCO; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer;
Advise a CCO or Police Officer of every computer, telecommunication and/or electronic device capable of storing digital data or information, possessed or used by you, whether or not it is capable of being connected to the internet, and the location of that device;
Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 48, without prior approval;
Enable device locking or password access of your computer, telecommunication and/or electronic devices, Not provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device referred to in condition 49, or any online accounts, to any person other than a CCO or Police Officer;
Upon request, permit a CCO or WA Police at any location nominated by them, to access any computer, telecommunication and/or device capable of storing digital data, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device; this includes providing all screen name(s), user name(s), and email addresses;
Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunication and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police;
Not to be in possession of any firearm, any ammunition or any offensive or prohibited weapon, replica or dangerous article and not to apply for, acquire or hold a licence to possess any firearm, any ammunition or any offensive or prohibited weapon, replica or dangerous article;
Not to attend concerts, events or venues frequented by children under 18 years, without prior approval of a CCO;
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 pre-approved by a CCO; Pornographic materials means printed or visual or any medium of material that contains explicit description or display of:
a)sexual organs or activity; or
b)breasts or nipples; or
c)backsides or the anus.
Not enter the premises of, or access the services of, escort agencies or sex workers unless pre-approved by a CCO;
Whilst in any public place or in view of a public place, not be in possession of any animate or inanimate item capable of constituting an enticement to children, unless such possession is for legitimate purpose and approved in advance by a CCO;
Not be within 50 metres may change to 100m depending on experts view of any school between 7.30am to 9.30am and 2.30pm to 4.30pm on school days, unless you have a reasonable excuse;
Not access the internet for, nor collect or be in possession of, in either electronic or permanent form, images of children, including drawings or sketches, whether indecent or not; Possession of such images depicting a child or children on items such as on household items or your immediate family, may be authorised by a CCO. Immediate family means pictures of yourself, your siblings, your parents and your spouse only;
Not access the internet for, nor collect or be in possession of any document, paper, or any other medium used for displaying words, either in the written or printed form, that describes sexual activity with a child and/or children;
Not to access online social media unless approved in advance by a CCO;
Not to attend a park where that park contains children's play equipment;

Medications/Mental Health

To engage with mental health services and to obey the instructions of the treating psychiatrist with regard to treatment and medication;
Undertake any medication regime in accordance with a medical practitioner's direction, and to comply with all testing to monitor your compliance with that treatment as directed by a CCO;
Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of re‑offending and compliance with treatment to the Department of Justice;
To abide by any conditions and requirements of any National Disability Insurance Scheme (NDIS) provider that is providing you with any services and/or accommodation.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IHN
Associate to the Honourable Justice Lundberg
13 NOVEMBER 2023