The State of Western Australia v Yates - [2020] WASC 149

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   STATE OF WESTERN AUSTRALIA -v- YATES [2020] WASC 149
CORAM:   QUINLAN CJ
HEARD:   6 MARCH & 5 MAY 2020
DELIVERED          :   5 MAY 2020
PUBLISHED           :   8 MAY 2020
FILE NO/S:   DSO 3 of 2013
BETWEEN:   STATE OF WESTERN AUSTRALIA
Applicant
AND
NIGEL YATES
Respondent

Catchwords:

Criminal law - Dangerous sexual offender - Application for review under s 29 and s 31 of the Dangerous Sexual Offenders Act 2004 (WA)

Legislation:

Community Protection (Offender Reporting) Act 2004 (WA)
Dangerous Sexual Offenders Act 2004 (WA)
Evidence Act 1906 (WA)

Result:

Continuing detention order rescinded
Supervision order granted

Category: B

Representation:

Counsel:

Applicant	:	Mr B D Meertens
Respondent	:	Ms M R Barone SC

Solicitors:

Applicant	:	Director of Public Prosecutions (WA)
Respondent	:	Legal Aid WA

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

Director of Public Prosecutions (WA) v Yates [2014] WASC 136
Director of Public Prosecutions (WA) v Yates [No 2] [2015] WASC 201
Director of Public Prosecutions (WA) v Yates [No 3] [2016] WASC 213
Director of Public Prosecutions (WA) v Yates [No 4] [2017] WASC 250
Director of Public Prosecutions (WA) v Yates [No 5] [2018] WASC 160
The State of Western Australia v Rao [2019] WASC 93
The State of Western Australia v Yates [2018] WASCSR 86
The State of Western Australia v Yates [2019] WASC 63
The State of Western Australia v Yates [2019] WASCSR 3

QUINLAN CJ:

(This judgment was delivered extemporaneously on 5 May 2020 and has been edited to correct matters of grammar and to include complete references to the evidence.)

Introduction

Following a review of the respondent's detention under the Dangerous Sexual Offenders Act 2006 (WA) (the Act), and for the reasons that follow, I told the respondent:
Mr Yates, I have listened carefully to the evidence and the lawyers as to whether I should keep you in detention or whether I should release you on another supervision order.
Under the law, I am not allowed to release you on a supervision order unless I think that you will follow the standard conditions of a supervision order. That includes that you will not commit any sexual offences.
In making my decision, I also have to make sure that the community is properly protected. If I don't think the community will be properly protected by a supervision order, I can't make one.
This has been a difficult decision. Not because you have committed any more sexual offences while on supervision. You haven't done that. It is difficult because when you have been released on a supervision order before, you have breached the order by using drugs or alcohol. The best way for the community to be protected is for you to stay away from drugs and alcohol. It is the only way you are going to be able to stay out of prison.
Dr Wynn Owen and Dr Bannister have said good things about you. They have said that you want to settle down and have a good life. That you want to stay away from crime. And that you know what you have to do to stay out of prison and that you want to do it.
Dr Wynn Owen has told me that you find it hard to stay away from drink and drugs because you have been lonely in Perth and you don't have people from your country around you. I realise how difficult that is.
But you have to do it.
I have decided to let you out on a supervision order. I think that you will follow the standard conditions and I think that you will not commit sexual offences and that the community can be protected by having strict conditions on you.
All the people from the Department and from Uniting Care West have worked had to find ways to help you stick to the conditions of an order. They have worked out a plan to help you. You will have counselling and help with daily living.
But you have got to help yourself. You have got to stay away from alcohol yourself, and from doing crime and from putting yourself in risky situations. It depends on you. If you don’t do that you will just be back here.
The order will last for 5 years. You won't be able to drink. You will have to wear a GPS. You will be tested for alcohol and drugs. You will have to tell your community corrections officer about anyone you become friends with and do a whole lot of other things to protect the community.
I am also going to make you go to Derbarl Yerrigan, the aboriginal health service, to see if they can give you the medicine to stop you drinking.
But in the end it is up you. You will have to sign the order saying that you will follow all the conditions I am going to make. I'll sign it too.
That's all I need to say to you now. I now have to speak to the lawyers about the conditions and my reasons.
The application to review the respondent's detention is made by the State of Western Australia (the State), pursuant to s 29 and s 31 of the Act.
The respondent Mr Yates has, most recently, been subject to a continuing detention order (CDO) under the Act imposed by Jenkins J on 5 March 2019.
On the review, if I find that Mr Yates remains a serious danger to the community I must either:
(a)affirm the continuing detention order; or
(b)with effect from a specified date, rescind the continuing detention order and make a supervision order (SO).[1]
[1] The Act s 33.
Whether I can, and should, make a supervision order is the principal issue to be decided by me.

Some relevant background

Mr Yates has been subject to the provisions of the Act since 21 June 2013, when Hall J made orders pursuant to div 1 of the Act, fixing a date for a hearing under div 2 of the Act, and ordering that Mr Yates be detained in the interim.
Mr Yates completed his last term of imprisonment in relation to a sexual offence on 9 July 2013. That term of imprisonment related to an offence committed on 9 January 2009. Mr Yates has not committed a further sexual offence since he was made subject to the provisions of the Act.
Over that period, Mr Yates has variously been subject to continuing detention orders and supervision orders under the Act.
On each occasion upon which Mr Yates has been returned to custody, as a result of a breach of his supervision order, it has not been due to sexual offending by him, rather, due to Mr Yates having consumed alcohol (or other drugs) and having been in the company of women, contrary to the terms of his supervision order. Mr Yates has been sentenced to terms of imprisonment in relation to those breaches.[2]
[2] See Director of Public Prosecutions (WA) v Yates [No 4] [2017] WASC 250 [72], The State of Western Australia v Yates [2018] WASCSR 86 and The State of Western Australia v Yates [2019] WASCSR 3.
As a consequence of his being subject to the Act, Mr Yates has, since 2014, been the subject of a number of decisions of this court.[3] I have had regard to all of the history set out in those decisions, which I need not repeat except where it is necessary to do so.
[3] See Director of Public Prosecutions (WA) v Yates [2014] WASC 136 (Martin CJ); Director of Public Prosecutions (WA) v Yates [No 2] [2015] WASC 201 (Martin CJ); Director of Public Prosecutions (WA) v Yates [No 3] [2016] WASC 213 (Martin CJ); Director of Public Prosecutions (WA) v Yates [No 4] [2017] WASC 250 (Martin CJ); Director of Public Prosecutions (WA) v Yates [No 5] [2018] WASC 160 (Martin CJ); The State of Western Australia v Yates [2019] WASC 63 (Jenkins J).
An overview of Mr Yates' history is as follows:[4]
[4] This table is adapted from that included by Jenkins J in her decision in The State of Western Australia v Yates [2019] WASC 63, [15].

DATE

EVENT

10 August 1976

Respondent's birthday. The respondent is now 43 years of age.

1998

Respondent committed first serious sexual offence (SSO). The offence was committed in Kalgoorlie.

2003

Respondent committed second SSO. The offence was committed in Kalgoorlie the day after his release from custody.

2009 Respondent committed third SSO. The offence was committed near Laverton.

April 2014

Respondent declared a DSO and a CDO was made.

June 2015 CDO affirmed.

Early August 2016 Respondent released on a SO.

4 - 21 October 2016

Breach of SO.

24 October 2016

First contravention proceedings commenced.

28 August 2017 Released on amended SO.

2 - 4 November 2017

Breach of amended SO by drinking in park with females.

8 November 2017

Second contravention proceedings commenced.

29 March 2018

Amendments to the Act come into effect.

7 May 2018 Released on respondent's SO.

9 - 11 May 2018

Breach of respondent's SO by consuming methamphetamine.

16 May 2018

Breach of respondent's SO by drinking alcohol at home.

16 May 2018 Return to custody.

17 May 2018

Contravention proceedings commenced.

25 May 2018

Respondent pleaded guilty to breach offences.

11 January 2019

Respondent sentenced for breach offences to nine months' imprisonment to commence on 16 May 2018.

5 March 2019

Respondent made subject to a CDO.

Mr Yates is a Wongai man who was born in Warburton and raised in the Warakurna Aboriginal community (Warakurna). He has not been back to Warakurna for many years. His isolation from his community, and from remote Western Australia generally, has been a persistent theme in the difficulties facing his management in the community.
Mr Yates is now 43 years of age and has spent most of his adult life in prison, or subject to continuing detention under the Act. His pattern of offending, precipitating his being made subject to the Act, includes three serious sexual offences.
The first serious sexual offence was committed in 1998 when Mr Yates was 22 years old. The victim of that offence was Mr Yates' 39-year-old female cousin. Mr Yates physically assaulted the victim, causing her a number of injuries, and sexually penetrating her without her consent on two occasions.
Mr Yates' second serious sexual offence was committed on 24 July 2003. On that occasion, Mr Yates physically restrained a 19‑year-old woman who had rejected his sexual advances, removed her tracksuit pants and sexually penetrated her without her consent.
Mr Yates' third and final serious sexual offence was committed on 9 January 2009. The circumstances of that offence were that the victim, who was 15 years of age, together with two female relatives accepted a lift from Mr Yates, supposedly to Laverton. Mr Yates was sniffing an inhalant as he drove. He drove through Laverton and parked his vehicle in a remote spot. The two older women left the vehicle and Mr Yates forced the victim into the backseat by threatening her and had sexual intercourse with her without her consent. Mr Yates then drove the women back to Laverton.
It was following his completion of his term of imprisonment for this offence that Mr Yates was initially made subject to the Act and placed on a continuing detention order.
As the table at [11] above reveals, Mr Yates has been released on a supervision order on three occasions in August 2016, August 2017 and May 2018.
In that regard, by August 2016, Martin CJ was satisfied that Mr Yates had made significant progress since his last annual review. In particular, his Honour considered that Mr Yates, had engaged very positively with Mr David Summerton, a clinical psychologist with whom Mr Yates has had a long therapeutic relationship (which continues to this day). Mr Yates had also engaged positively with a counsellor from Holyoake, an alcohol and drug rehabilitation service.
At that time Martin CJ concluded:[5]
Mr Yates will continue his therapeutic counselling sessions with Mr Summerton and the counselling provided by Holyoake with respect to alcohol and drug use. He will also be provided with a mentor, and closely supervised by officers of the Department of Corrective Services. In my view the general effect of these arrangements, coupled with the conditions which I have referred, is such that the risk of Mr Yates committing further sexual offences can be managed to the point where the community is adequately protected.
[5] See Director of Public Prosecutions (WA) v Yates [No 3] [2016] WASC 213 [120] (Martin CJ).
Following his release upon supervision, Mr Yates was returned to court on three occasions for breaches of the conditions of his supervision order. The nature of those breaches is relevant to the appropriateness of a supervision order in the present case and may be summarised as follows.
In Director of Public Prosecutions (WA) v Yates [No 4],[6] Martin CJ dealt with a number of breaches of the conditions to which Mr Yates pleaded guilty:[7]
The first offence was committed between 4 October and 11 October 2016, when he consumed or used cannabis and methamphetamine. The second offence was committed between 11 October and 19 October 2016 by the consumption of cannabis. The third offence was committed on 21 October 2016 when Mr Yates consumed or used amphetamine and methamphetamine. (footnotes omitted)
[6] Director of Public Prosecutions (WA) v Yates [No 4] [2017] WASC 250.
[7] Director of Public Prosecutions (WA) v Yates [No 4] [2017] WASC 250 [6].
Martin CJ also referred to a number of other contraventions of conditions of the supervision order in relation to which criminal charges were not brought because of their minor nature and the extenuating circumstances in which those breaches occurred.[8]
[8] Director of Public Prosecutions (WA) v Yates [No 4] [2017] WASC 250 [8].
The second contravention proceedings against Mr Yates were the subject of Martin CJ's decision in Director of Public Prosecutions (WA) v Yates [No 5].[9] The contraventions in that case were described by his Honour as follows:[10]
[9] Director of Public Prosecutions (WA) v Yates [No 5] [2018] WASC 160.
[10] Director of Public Prosecutions (WA) v Yates [No 5] [2018] WASC 160 [7] - [13].
On 2 November 2017, police located Mr Yates in a park near the corner of Wellington and Pier Streets, Perth. He was in the company of others, including a male and three females of approximately his age. There were containers of alcoholic beverages near the group, and members of the group were observed by police to be drinking from them. Police ascertained that Mr Yates was subject to a supervision order and directed him to submit to a preliminary breath test. That test returned a positive result to alcohol. He was conveyed to Perth police station at 3.45 pm and provided a sample of breath for analysis which returned a positive blood alcohol content result of 0.135%.
Mr Yates' consumption of alcohol constituted a breach of condition 41 of the supervision order.
On 3 November 2017, following Mr Yates' apprehension at the park, the community corrections officer responsible for the supervision of Mr Yates issued him with a Written Lawful Instruction, in terms which directed Mr Yates that:
You are not permitted to attend the park at 324 Wellington Street, PERTH WA 6000.
A map depicting the area which Mr Yates was not to attend was incorporated within the instruction given to Mr Yates by the community corrections officer.
At 8.59 pm on 4 November 2017, the Central Monitoring Station operator monitoring information provided by the GPS monitor that Mr Yates was wearing received an alert indicating that Mr Yates was again at the park near the corner of Wellington and Pier Streets, Perth.
Police attended the park at around 9.45 pm on 4 November 2017 and arrested Mr Yates. By attending the area the subject of the Written Lawful Instruction issued on 3 November 2017, Mr Yates was in breach of condition 4 of the supervision order.
Police attending the park in Wellington Street on the evening of 4 November 2017 noticed that Mr Yates was in company with other people, including several males and a female of approximately his age. Once again police noticed containers of alcoholic beverages near the group, and members of the group were observed to be drinking from them. CCTV footage of the scene showed that Mr Yates was consuming alcohol, in the form of beer. Police directed Mr Yates to submit to a preliminary breath test which returned a positive blood alcohol content result of 0.199%. Mr Yates' consumption of alcohol was another breach of condition 41 of the supervision order.
Mr Yates had also been given a written instruction to remain in his residence between 7 pm and 7 am unless otherwise directed by a community corrections officer. As there was no direction permitting Mr Yates to leave his residence on the evening of 4 November 2017, his presence at the park in Wellington Street on that evening constituted a breach of conditions 4 and 33 of the supervision order.
The third contraventions were those dealt with in Jenkins J's judgment in TheState of Western Australia v Yates [2019] WASC 63, in which her Honour rescinded the supervision order. Those contraventions were as follows:[11]
Perth 25671/2018.
On 16 May at 6.30 pm, the police attended your home to conduct an unannounced home visit. Police directed you to undergo a random preliminary breath test. It returned a positive result to alcohol. There was a woman present at your home. You had not been given permission to have her in your home. No sexual contact occurred between the two of you. You told the police you did not intend to have any sexual contact with her that evening.
You were taken by the police to the Perth Police Station, where you provided a sample of breath for analysis. You had a blood alcohol content of 0.039%. You declined to participate in an interview, and you provided no excuse for drinking alcohol. Your consumption of alcohol was in breach of condition 41 of your supervision order.
Perth 25870/2018.
On 11 May 2018, you were directed by your community corrections officer to provide a sample of urine for analysis. At 12.45 pm, you provided the required sample. It was sent to PathWest for analysis.
On 17 May 2018, the test results gave a positive reading to amphetamine with a concentration of 1,293 micrograms per litre, as well as a positive reading for methylamphetamine with a concentration being greater than 5,000 micrograms per litre. Your previous test result in relation to a sample you provided on 9 May 2018 was negative to any illicit substance or drug.
In those circumstances, you admit using an illicit substance namely, methylamphetamine (it may have contained amphetamine, as well) on one occasion between 9 and 11 May 2018. I note that means that you used illicit drugs only two-four days after you were released on the supervision order. Your use of the illicit drugs was in breach of condition 32 of the order. You declined to comment about the positive reading.
[11] The State of Western Australia v Yates [2019] WASCSR 3 [5] - [9].
I will return to her Honour's decision in relation to those contraventions later.
Before doing so, it is necessary to briefly refer to the applicable law.

Statutory provisions

As noted above, the court's powers on a review are set out in s 33 of the Act. Section 33 provides:
33.Review of detention under continuing detention order
(1)On a review of a person's detention under section 31 -
(a)if the court does not find that the person remains a serious danger to the community it must rescind the continuing detention order; or
(b)if the court finds that the person remains a serious danger to the community it must -
(i) affirm the continuing detention order; or
(ii) with effect from a date specified by the court, but not earlier than 21 days after the day on which the review is concluded, rescind the continuing detention order and make a supervision order in relation to the person.
[(2)deleted]
(3)Subject to subsection (4), in making a decision under subsection (1)(b), the paramount consideration is to be the need to ensure adequate protection of the community.
(4)A court cannot make an order under subsection (1)(b)(ii) unless it is satisfied, on the balance of probabilities, that the person will substantially comply with the standard conditions of the order.
(5)The onus of proof as to the matter described in subsection (4) is on the person.

Of particular relevance to this application are s 33(3) and s 33(4) of the Act. That is, in making a decision under s 33(1)(b) the paramount consideration is the need to ensure adequate protection of the community.
Section 33(4) prevents me from making a supervision order unless I am satisfied, on the balance of probabilities, that Mr Yates will substantially comply with the standard conditions of the order. The onus in that regard is on Mr Yates (s 33(5)). The standard conditions of a supervision order are as follows:[12]
(a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the person's current name and address; and
(b)report to, and receive visits from, a community corrections officer as directed by the court; and
(c)notify a community corrections officer of every change of the person's name, place of residence, or place of employment at least 2 days before the change happens; and
(d)be under the supervision of a community corrections officer, which includes, comply with any reasonable direction of the officer (including a direction for the purposes of section 19A or 19B); and
(e)not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and
(f)not commit a sexual offence as defined in the Evidence Act 1906 section 36A during the period of the order; and
(g)be subject to electronic monitoring under section 19A.
[12] The Act, s 18(1).
In applying the provisions of s 33(4) and s 33(5), I respectfully adopt as correct the propositions set out by Fiannaca J in Director of Public Prosecutions for Western Australia v Hart:[13]
(1)Section [33(4)] effects a reversal of the burden of proof that ordinarily applies under the Act by virtue of s 40, which deems proceedings under the Act to be criminal proceedings.
(2)As the respondent has the legal burden of establishing that he will substantially comply with the standard conditions of the supervision order, he also has the evidential burden.
(3)However, in deciding whether the burden has been discharged, the court must have regard to all relevant and admissible evidence adduced in the proceedings.
(4)The evidence adduced by the applicant may form part or all of the evidence on which the respondent relies to establish that he will substantially comply. This is in a context in which statements made by a respondent to medical and other professionals are routinely taken into account in proceedings under the Act as evidence of the respondent's state of mind, including his attitudes, beliefs and intentions, without the need for the respondent to give direct evidence about such matters, by virtue of s 42(4), which modifies the ordinary rules of evidence which would otherwise apply.
(5)Therefore, it may not be necessary for the respondent to give evidence concerning his attitudes or intentions in order to prove that he would substantially comply with the standard conditions. The need for him to do so will depend on what other evidence there is from which the court can draw a conclusion about that issue.
[13] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [20] (Fiannaca J). His Honour's remarks were made in relation to relevantly identical provisions in s 23 of the Act.
In applying these principles, therefore, before I would be able to release Mr Yates on a supervision order, I must be satisfied, on balance, that Mr Yates will substantially comply with the standard conditions set out at [30] above.
Nevertheless, that is not the end of the matter. Even if I am satisfied that Mr Yates will substantially comply with the standard conditions, it would not automatically mean that he should be released on a supervision order. That is because the paramount consideration, pursuant s 33(3), is the need to ensure adequate protection of the community. Accordingly, even if I am satisfied that the respondent will substantially comply with the standard conditions of a supervision order, there may be circumstances where, despite such a finding, I was not satisfied that releasing him on a supervision order will ensure adequate protection of the community.[14]
[14] The State of Western Australia v Yates [2019] WASC 63 [15] (Jenkins J).

The evidence

The evidence produced before me on this review consisted of a Book of Materials (exhibit 1), together with oral evidence from Dr Peter Wynn Owen, Dr Ben Bannister and Mr Kyle Jarvie.
The Book of Materials included the following reports (some of which have been addressed in previous applications and provide context to the more recent reports). The reports include:
(a)treatment progress report of Mr Steve Jobson, Contract Psychologist, dated 20 January 2018;
(b)treatment progress report of Ms Tania Wilson-Brown, Senior Counselling Psychologist, dated 20 August 2018;
(c)treatment progress report by Dr Ben Bannister, Forensic Psychologist, dated 3 February 2020;
(d)report of Dr Peter Wynn Owen, Consultant Forensic Psychiatrist, dated 27 December 2017;
(e)report of Dr Wynn Owen, dated 3 September 2018;
(f)report of Dr Wynn Owen, dated 18 February 2020; and
(g)report of Mr Kyle Jarvie, Senior Community Corrections Officer dated 21 February 2020.
The Book of Materials also includes the Incident Reports and Substance Use Test Results in relation to Mr Yates' most recent period in detention. The Incident Reports raise no issues of concern and the Substance Use Test Results record negative readings for various substances, including cannabis, amphetamine and methamphetamine.
I do not propose to summarise the reports of Mr Jobson and Ms Wilson-Brown, as they predate the most recent continuing detention order and were addressed by Jenkins J in The State of Western Australia v Yates [2019] WASC 63. The issues raised in them were adequately addressed by the reports and the evidence of the witnesses called before me.
Each of the witnesses (Dr Wynn Owen, Dr Bannister and Mr Jarvie) gave evidence on 6 March 2020.

Dr Wynn Owen

Dr Wynn Owen is a consultant forensic psychiatrist, who has considerable experience in the assessment of sexual offenders for the purposes of the Act. He was one of the psychiatrists who provided a report and gave evidence in relation to Mr Yates' initial division 2 hearing in 2013 and has reviewed Mr Yates on a number of occasions most recently for the purposes of preparing his report of 18 February 2020.
For the purposes of that report Dr Wynn Owen again interviewed Mr Yates and discussed also his case with Mr Summerton and Mr Jarvie, Senior Community Corrections Officer, who also gave evidence.
Mr Summerton reported to Dr Wynn Owen that Mr Yates had continued to demonstrate awareness of the connection between his substance use and offending risk. Dr Wynn Owen reported that Mr Summerton noted that Mr Yates was no longer taking a victim stance and was taking responsibility for his past sexual offending and its consequences. Mr Summerton commented that he had addressed Mr Yates' poor 'refusal skills' which, in relation to substance use, to date, he had not demonstrated the ability to put into action in the community.
Dr Wynn Owen confirmed that Mr Yates, when interviewed, did not attempt to excuse his actions through attribution of blame, although he expressed no victim empathy. He reported that Mr Yates demonstrates an awareness of the behaviours which have resulted in his return to prison, particularly in relation to substance use, and Mr Yates' statement that he would use avoidance strategies. Dr Wynn Owen, however, reported that Mr Yates did not demonstrate awareness of the risk posed by taking women to his home, dismissing the idea that he would possibly sexually offend against them.
Mr Yates stated to Dr Wynn Owen that he intended to abide by any supervision order conditions.
While recognising the issues concerned with its use in relation to aboriginal populations, Dr Wynn Owen reported that Mr Yates' score under the Static-99R test has placed him in the 'well above average risk' category for reoffending. As Dr Wynn Owen stated, Mr Yates' score derives from his age at the time of release, having never lived with a partner for at least two years, his prior offending history and having both unrelated and stranger victims.
Dr Wynn Owen also identified the risk factors relating to Mr Yates from the Risk for Sexual Violence Protocol (RSVP). The risk factors identified by Dr Wynn Owen included Mr Yates' sexual violence history, problems with self-awareness and stress, problems with substance abuse and problems with social adjustment and planning and supervision.
Of particular relevance is Dr Wynn Owen's identification of the following risk factor:
Mr Yates sexual offending and much of his violent general offending is strongly associated with the risk factor problems with substance abuse. Substance abuse is a recognised risk factor increasing the risk of both violent and sexual offending.
On the basis of his assessment, Dr Wynn Owen remained of the opinion that Mr Yates presents a high risk of future sexual offending.
In relation to his potential release on a supervision order, Dr Wynn Owen said the following:
On the basis of this assessment I am of the opinion that Mr Yates presents a high risk of future sexual offending. This risk estimate is derived from clinical assessment, consideration of the Static-99R and RSVP findings and his recent history of placing himself in high-risk situations when in the community.
Although Mr Yates has breached the SO conditions he has not committed a sexual offence while on the SO. His breaches of SO have been related to loneliness and isolation in a metropolitan Perth setting, limited coping skills and a now stereotyped pattern of coping in Perth which involves association with people with whom he feels kinship, substance use in that context, and seeking to meet intimacy needs through ad hoc contact with women he meets in a manner at odds with order conditions designed to address high risk situations.
Mr Yates current plans for release are no different to when previously released to SO and the proposed accommodation in metropolitan Perth will be associated with the same likelihood of rapid onset of loneliness and isolation. Unless the external inputs are varied through provision of additional support time, and assertively provided (ie facilitating connections with mentor, Wungening etc rather than expecting Mr Yates to do this) he is likely to breach his order conditions imminently, potentially within days to weeks of release.
Dr Wynn Owen made the following recommendations if Mr Yates is released into the community:
(a)ongoing individual counselling to assist community reintegration and manage risk;
(b)abstinence from alcohol and other drugs;
(c)regular and random testing for drugs and alcohol;
(d)if Mr Yates is agreeable, a trial of Antabuse, used to manage alcohol dependence and the associated symptoms of alcohol consumption by making alcohol consumption extremely unpleasant;
(e)engagement with Wungening Alcohol and other drug support services;
(f)appointment of an appropriate indigenous Australian mentor; and
(g)Consideration to be given to release elsewhere than the metropolitan area.
This final consideration (release outside the metropolitan area) is a matter that Dr Wynn Owen has raised in the past. In report he reiterates his position in the following terms:
As suggested in 2018 a different and proactive management approach, ideally in regional Western Australia, will be needed to reduce the likelihood of Mr Yates continuing to breach supervision conditions, as these breaches appear to be largely a result of his social and cultural isolation and limited exposure to metropolitan settings and society.
If Mr Yates is to be released again to reside in metropolitan Perth and no external funding is available to provide supports other than the CCO and forensic psychologist consideration should be given by the WA Department of Justice to funding these supports (ie a mentor and any medications he requires) as the cost is likely to be significantly less than the cost of long term imprisonment and there will be a greater chance of successful community reintegration.
In his oral evidence, Dr Wynn Owen confirmed his view that Mr Yates' overall risk was similar to his previous assessments, although he did identify certain areas of improvement that 'potentially augurs well for the future'. He referred, for example, to Mr Summerton having consistently found that Mr Yates had not taken a victim stance and Dr Bannister's finding that Mr Yates had a greater sense of responsibility. Dr Wynn Owen described this as an 'important but subtle shift'.[15]
[15] Ts (6 March 2020) 976.
Dr Wynn Owen emphasised that Mr Yates' difficulty was not that he did not understand the supervision orders, or what he should not do (particularly concerning the use of drugs and alcohol). Rather, his difficulty was in enacting that behaviour when he was stressed, with that stress coming from isolation and loneliness.[16]
[16] Ts (6 March 2020) 980 - 981.
Dr Wynn Own was taken to the reference in his report for the need for a more proactive management approach and was asked what that would involve. He responded:[17]
What I'm suggesting is that for quite a period of time, at least for the first few months, that Mr Yates should be supported in attending things, supported in engaging with services. And that support is not just saying 'this is the contact person', but it’s actually going with him to things. Going with him, with somebody that he knows already that enables the connection to be made and then continuing some of that ongoing, mutual contact. It's helping him to attend appointments by prompting him, it is having regular face to face contact with him. Now, these are the type of things which I understand UCW can potentially provide and I think, with UCW, with Wungening who in addition to substance abuse, apparently, through Mr Jarvie out here, will be able to offer somewhat more than just that. These are the sort of things which I'm talking about. But the proactive or assertive means that the supervision and monitoring team - the group of people across the agencies - work together on his behalf, not by just passively saying 'this is what you’ve got to do and this is the instruction you must adhere to', but taking him to things, being with him at things and working through things with him.
[17] Ts (6 March 2020) 987-988.
Dr Wynn Owen concluded his evidence-in-chief by observing that:[18]
overall, there needs to be a recognition that a more hands on approach may well not only mitigate risk, but enable Mr Yates, himself, to develop a more pro-social network within the community whilst he is living in Perth, in that sort of dislocated, off country scene.
[18] Ts (6 March 2020) 988.
In cross-examination, Dr Wynn Owen accepted that the fact that Mr Yates had been in the community for three periods under a supervision order and had not committed a sexual offence, indicated a decrease in the risk of an imminent return to serious sexual offending.[19] That included the fact that there was a failure to return to sexual offending, even when there was a return to high risk behaviour (i.e. substance abuse).
[19] Ts (6 March 2020) 989. See also ts (6 March 2020) 1005.
In relation to his evidence that Mr Yates had shown a greater sense of responsibility, Dr Wynn Owen confirmed that that shift was evident since the last time he had reviewed Mr Yates, about 12 months earlier. Dr Wynn Own said that if that greater sense of responsibility extrapolates to his future actions, on the basis of what appears to be an understanding of the DSO conditions, then that could also be a positive.[20]
[20] Ts (6 March 2020) 994.
Dr Wynn Owen returned to the difference in approach needed. He said:[21]
[W]hat happened last time when he was released for a very short period of time it appeared that the first few days not a lot occurred and I think we can learn from that. I think even though his first two days what - what contacts are being made with Mr Yates. What has been set up for him? How much of that is set up before he even leaves prison so that the - there’s almost a diary, a timetable of when he will meet with so and so, 'Then we will go and do this,' etcetera, to see if those connections can be made early on.
So having a full calendar in the first couple of weeks, which aren't just punitive or monitoring appointments but supportive - - -?---Absolutely.
--- friendly, positive appointments?---Yes.
In terms of – that's going to be more likely to alleviate the immediate stress?---I believe it is. I mean, it - not too much because, again, that can be stressful but I think it would potentially alleviate the stressors, would provide a greater degree of structure and the structure would then transition from immediate secure setting into the community.
So in terms of not just having the good will that Mr Jarvie might have had to identify places, the actual implementation of carrying it out in terms of assisting him to make those appointments?---Yes.
You indicated in terms of there are proposals such as the out centre, that he should be supported to do that. You spoke about travelling with him?---Yes.
So, to break down any barrier of unfamiliarity that might come simply from having to locate and meet or arrive at a new location; is that right?---Barriers of unfamiliarity, sources of stress, distraction. Many of those things could be potentially obviated by actually going with. And, at the same time is the potential then to model pro-social interactions and to engage with - Mr Yates with other appropriate people.
[21] Ts (6 March 2020) 1002 - 1003. See also ts (6 March 2020) 1014.
Dr Wynn Owen also identified the importance of engaging an indigenous Australian mentor.[22]
[22] Ts (6 March 2020) 984, 1014.
In relation to his recommendation for a trial of Antabuse, Dr Wynn Owen gave evidence that he did not think that the use of Antabuse was necessary, but he did consider it would assist, particularly in the short term.[23] Dr Wynn Owen confirmed that Mr Yates was prepared to take the medication.
[23] Ts (6 March 2020) 1008.
Dr Wynn Owen was also taken to a number of the particular conditions proposed in the draft supervision order prepared by the Department of Justice in the event Mr Yates was placed on a supervision order.

Dr Bannister

Dr Bannister is a forensic psychologist. He has also reviewed Mr Yates on a previous occasion. His most recent report, dated 3 February 2020, includes an overview of the psychological intervention provided to Mr Yates since his last psychological assessment.
Dr Bannister reports that Mr Yates was seen by his allocated psychologist, Mr Summerton, around the time of Jenkins J's judgment in The State of Western Australia v Yates [2019] WASC 63.
Mr Yates' presentation was noted by Mr Summerton to be conversational, engaging and devoid of the victim stance that had previously surfaced when decisions did not go in his favour. Mr Summerton had expressed the view to Mr Yates that there was little that Mr Yates needed specifically to address in the short-term regarding his offending behaviour from a psychological perspective. Mr Yates reportedly agreed with this and indicated a desire to transfer to the Eastern Goldfields Regional Prison (Eastern Goldfields) in order to increase his chances of reconnecting with family members.
Mr Yates was transferred to Eastern Goldfields on 26 June 2019. He returned to Acacia Prison on 21 November 2019, in preparation for this review.
Upon his return Mr Yates resumed contact with Mr Summerton, and had attended two further sessions with Mr Summerton.

Mr Summerton reported that he had drawn Mr Yates' attention to the breaches of his supervision order that had happened shortly after his release on the previous occasions. Mr Summerton said that Mr Yates was able to identify the need for him to maintain drug and alcohol refusal skills and to avoid negative peer influences in order to remain out of prison.
Mr Summerton noted that Mr Yates appeared to accept more responsibility for his actions and continued to retreat from the victim stance that was characteristic of his presentation during earlier periods of his management as a DSO.
Mr Summerton reported that he felt Mr Yates was positively oriented towards him and observed that his victim stance had not been noticeable for some time. Mr Summerton did note that Mr Yates demonstrated a lack of long-term consequential thinking. He suggested that this was unlikely to be related to intellectual difficulties as there was ample behavioural evidence to indicate that Mr Yates had been able to manage himself in prison adequately over a long period of time.
Mr Summerton indicated it would remain an enduring challenge for Mr Yates to be able to adapt to life in the Perth metropolitan area which was largely foreign to his way of life.
Dr Bannister noted that in addition to continuing engagement with Mr Summerton, Mr Jarvie had confirmed that Wungening (previously the Aboriginal Alcohol and Drug Service) had agreed to engage with Mr Yates if he was released on a supervision order.
Dr Bannister's account of his interview with Mr Yates records that Mr Yates considered that his contact with Mr Summerton continued to be helpful and that their sessions were primarily focussed around issues concerning consent and relevant risk factors.
Mr Yates had acknowledged that boredom may be a factor upon his release and said that he hoped to eventually find work and that he would maintain supportive relationships with family members. He said that his family and friends were aware of the obligations he would have on a supervision order and were supportive of him, while acknowledging that very few resided in the Perth metropolitan area. Mr Yates also reported to Dr Bannister that he acknowledged the importance of the role of Uniting Care West in the event he was released in the community.
Dr Bannister concluded his report with the following opinions:
21.Mr Yates' understanding of risk issues relevant to him has remained unchanged for some time. For the current assessment he described an appropriate understanding of consent, and was able to articulate that managing boredom, maintaining supportive pro-social relationships and avoiding anti-social influences were all key to his successful risk management. It also appears that he has developed a greater internalised locus of control.
22.Generally, Mr Yates has appeared to respond well to his continued contact with Mr Summerton. However, while their discussions have largely centred on rehearsal of risk management plans, it is unclear to what extent he can translate abstract knowledge and insight into practical behaviour in the community under stress and anti-social influence. His repeated contraventions of his CSO suggest that he has previously found it difficult to do so. This illustrates (and supports) Mr Summerton's assertion that typical insight-oriented psychological intervention has a limited role in Mr Yates' ongoing risk management. His insight is unlikely to improve further, but he is nevertheless currently able to articulate what behaviours he will need to engage in so as to successfully meet his order conditions.
In his oral evidence Dr Bannister was asked to expand upon his observation that Mr Yates had developed a greater 'internalised locus of control' and how significant it was for his future management. Dr Bannister said:[24]
Well, it's certainly a positive generally simply because it means that he's more likely to take responsibility for his own actions with an increased degree of accountability.
[24] Ts (6 March 2020) 1033 (see also exhibit 5).
He added that this also meant that there had been an improvement in Mr Yates' insight.[25]
[25] Ts (6 March 2020) 1033.
As with Dr Wynn Owen, Dr Bannister confirmed that Mr Yates knows what he needs to do to meet his supervision order conditions: '[a]t this point it is all about him translating words in action'.[26]
[26] Exhibit 5.
In cross-examination, Dr Bannister stated that there were no deficiencies in Mr Yates' identification of his risk factors, or in relation to issues of consent, the risk and role of intoxication in his interaction with women, or in his identification of his strategies for avoiding intoxicated persons.[27]
[27] Ts (6 March 2020) 1036 - 1037.
In relation to translating Mr Yates' understanding into action, Dr Bannister agreed that that would always be an unknown until 'we have it in action' in the community. In that regard, Dr Bannister accepted that the three steps to prepare for rehearsal of the information in the community were to dialogue with Mr Summerton, internalise the information and understand it. Dr Bannister agreed that Mr Yates had achieved and could demonstrate learning in all three categories.[28]
[28] Ts (6 March 2020) 1039.
Indeed, Dr Bannister agreed that Mr Yates and Mr Summerton have collectively taken their preparation for release into the community as far as they can go. He gave the following evidence: [29]
[29] Ts (6 March 2020) 1040.
And that there is no further treatment goals in custody that Mr Yates and Mr Summerton can collectively try and achieve; is that correct?---Correct.
Other than the re-rehearsing of the same things?---Yes, which is always challenging when you’re relying solely on abstract.
… Is there a risk that if it simply is required to be the re-rehearsing for years, that it loses its currency or its value?---Absolutely.
What are those risks?---Well, the risks are that unless there is the capacity to practice what has been learnt or apply what has been practiced, that, again, relying solely on abstractness, particularly with someone like Mr Yates, it will just, yes, lose its - - -
Effectiveness?---Yes, effectively. Yes.
Sorry to cut in, but that would be the appropriate word?---Yes, I think so.
So in terms of where Mr Summerton can take Mr Yates, it’s about being as best internally prepared to take up the support and supervision that’s to be provided?---Yes, and also once he is in the community, to be there to talk through things as they occur.
And so secondly to have the developed rapport that Mr Summerton is someone who can be leaned upon to provide support and to provide a sounding board and discussions?---Yes, exactly.
And then continued to provide feedback in respect of how the learning in actual doing is going?---Yes.
That's the second integral part; correct?---Correct.
The treatment regime from community to custody?---Yes.
If that be the case, is it accurate to say that Mr Summerton and Mr Yates – Mr Yates is in the best possible position to make the next step psychologically?---Yes.

Mr Jarvie

Mr Jarvie is a Senior Community Corrections Officer with the Community Offender Monitoring Unit (COMU). He provided a community supervision assessment dated 21 February 2020. The assessment includes proposed supervision order conditions in the event that Mr Yates is placed on a supervision order.
Mr Jarvie reported that Mr Yates' previous history in relation to his compliance when subject to a supervision order was discussed with him. Mr Jarvie reported that Mr Yates cited being away from country and family, associated loneliness and missing significant cultural events as underpinning his previous behaviours. Mr Jarvie noted that Mr Yates' refusal skills have been easily overcome in the past. Mr Yates identified both to Mr Summerton and Mr Jarvie that avoidance would be his primary strategy to manage high risk situations such as contact with intoxicated individuals. In discussing strategies to avoid such situations, Mr Yates offered that he would show his tracking device or indicate that he had to attend an appointment in future in order to excuse himself. Mr Jarvie reported that Mr Yates has indicated he is motivated by a desire to eventually be able to return home to spend time with his family and that it had been 11 years since he was able to spend time with family on country.
Mr Jarvie reported that Mr Yates remains engaged with Uniting Care West's DSO supported accommodation program and is eligible for accommodation and reintegration support with Uniting Care West. He reported that Uniting Care West staff will spend approximately 10 to 20 hours per week with a newly released prisoner for the first two weeks and that the required hours will gradually decline over time.
Contact with Mr Yates' case worker from Uniting Care West indicated some concerns in relation to his openness to discuss substance abuse.
In relation to employment, Mr Yates identified that he would be in receipt of Centrelink benefits, however he would attempt to make an income by engaging with a Perth art centre, which he had engaged with previously.
Mr Jarvie reported that the potential for Mr Yates to return to the Eastern Goldfields area, when canvassed with the Victim-Offender Mediation Unit, had revealed a number of concerns.
In relation to reporting and service engagement, Mr Jarvie noted that Mr Yates would be required to report to East Perth Adult Community Corrections, the WA Police Sex Offender Management Squad and Uniting Care West. It had also been confirmed that Wungening Aboriginal Corporation were willing to re-engage with Mr Yates to provide substance abuse counselling. A supplementary report from the Community Offender Monitoring Unit[30] advised that in the event that Mr Yates is released on supervision, he would be reallocated his former case manager at Wungening, which would resolve concern around rapport and starting with a new case manager.
[30] Exhibit 4.
In relation to the behaviours to be managed, Mr Jarvie also identified Mr Yates' isolation from family and fellow countrymen as a causal factor for his ongoing engagement with negative peers in the Perth city area. Strategies in place to reduce that risk include a curfew condition, requirement not to engage in substance use, urinalysis testing, breath testing, monitoring of associations and activities and implementation of GPS exclusion zones. Mr Jarvie noted, however, that Mr Yates will need to implement refusal skills in order to overcome high risk situations.
In relation to strategies to manage offender behaviour, Mr Jarvie said given Mr Yates' history, urinalysis would be frequent and random. The proposed conditions would also allow for the Sex Offender Management Squad to facilitate breath analysis, both at Mr Yates' home and the community. Mr Jarvie also noted that a trial of Antabuse medication, which had been recommended for consideration by Dr Wynn Owen, could be commenced on the day before his release. The Director of Medical Services had confirmed that no further tests or investigations were required before that could occur. Regrettably, Mr Jarvie also confirmed that the Department of Justice would not fund the cost of Antabuse medication ($84.90 per month), which would be Mr Yates' responsibility.
Mr Jarvie also referred to the fact that Mr Yates would be subject to GPS monitoring with exclusion zones and a curfew for the purpose of stability and structure.
The issues around Mr Yates not being able to return home to Warakurna were addressed and efforts towards assisting him to access video/Skype calls have been discussed.
In relation to his residence, Mr Jarvie's report acknowledges that Mr Yates is likely to experience isolation and loneliness as a result of his dislocation from Warakurna, however his proposed supervision plan in the metropolitan area was the result of a number of issues including the availability of housing, adequate intensive resource availability, consideration of victim issues and practicalities.
In his oral evidence Mr Jarvie confirmed that there was no available supported accommodation outside of the Perth metropolitan area. He identified the proposed residence for Mr Yates, in the event that he is released on a supervision order, together with the desktop spatial analysis of that residence. Mr Jarvie did not identify any particular matter of concern in relation to the locality, which contained items that are generally found in most locations.[31]
[31] Ts (6 March 2020) 1048.
Mr Jarvie confirmed that, while a management plan was ordinarily prepared prior to a person's release on supervision, one had not been prepared for the purposes of the review hearing, to indicate practically what would be involved in Mr Yates' supervision. Mr Jarvie gave evidence that it was possible to prepare such a plan.[32]
[32] Ts (6 March 2020) 1061.
In cross-examination Mr Jarvie was asked about the Department's stance concerning the funding of medication such as Antabuse (which would cost somewhere under $500 for a six month course). While the Department's stance was to pay for such medication for a detainee while in custody, Mr Yates would be required to fund the medication in the community. Mr Jarvie was asked a number of questions directed towards the relative cost of the treatment when compared with other costs associated with the management of persons under the Act.[33] He was also asked a number of general questions concerning resourcing and planning in relation to Mr Yates.
[33] Ts (6 March 2020) 1065 - 1066.
Mr Jarvie also was also taken, in both evidence-in-chief and cross‑examination, to a number of the particular conditions proposed in the draft supervision order.

Adjournment of review for the preparation of a draft management plan

At the conclusion of the evidence on 6 March 2020, I raised with the parties whether the court would be assisted by obtaining more concrete information as to the proposed management of Mr Yates were he released on a supervision order in the form of a draft management plan.
Counsel for Mr Yates sought an adjournment of the proceedings to enable that to occur.
In the result, I adjourned the review application, pursuant to s 31 of the Act. I also gave a direction in the following terms:
1.Pursuant to section 43B of the Act, that on or before 24 April 2020 the State is to file and serve a draft comprehensive management plan prepared by the Department of Justice identifying the proposed management and intervention in the event that Mr Yates were released on a supervision order to commence on 1 June 2020.
2.The draft management plan is to include a daily contact plan for the month of June, including but not limited to proposed contact with:
(i)       the COMU;
(ii)      Wungening;
(iii)     Uniting Care West;
(iv)     any mentor that has been arranged; and
(v)      any family members of Mr Yates.
3.The draft management plan is to include identification of the proposed Community Corrections Officer, drug and alcohol counsellor and mentor. If that information is not available, the plan is set out the explanation for that and the proposed next steps.

The resumed hearing

The State duly complied with the direction I made, filing an Update Community Supervision Assessment and Management Plan dated 24 April 2020 (the Management Plan) (Exhibit 8).
At the resumption of the hearing, Mr Jarvie was recalled to give further evidence in relation to the Management Plan and to other enquiries he had made since the first day of hearing.
The Management Plan is a very useful document and sets out admirable detail of the arrangements that would be in place were Mr Yates placed on a supervision order.
In particular the Management Plan contained:
(a)the membership of the Risk Management Team, to meet on a fortnightly basis (with the opportunity for consultation outside these times);
(b)the identity of Mr Yates' proposed senior counselling psychologist, and the frequency of their meetings;
(c)the identity of Mr Yates' proposed Uniting Care West case worker, with whom Mr Yates has worked before and with whom he would have contact prior to any release;
(d)the identity of Mr Yates' proposed substance use counsellor and the frequency of their counselling sessions. This was also the person who had previously worked with Mr Yates (see [86] above);
(e)details of attempts to identify a suitable indigenous mentor; and
(f)details of discussion with Mr Yates' family including his sister and his brother, Clinton Yates.
The Management Plan also sets out the daily contact and structured activities to be carried out for the first weeks of any supervision.
By way of example only, the entries for the first two days of supervision are:
[First day of supervision]
0800hrs - 1030 hrs
•COMU SCCO pickup Mr Yates from Acacia Prison and transport Mr Yates to [address].
1030hrs - 1200 hrs
•Arrive at [address] and commence DSOSO paperwork and instructions, including but not limited to issuing of Written Lawful Instructions around exclusion zones and future appointments. Complete installation of electronic monitoring equipment.
1200hrs - 1230 hrs
•UCW engagement, including a run through of the property with Mr Yates. Tenancy documentation to be completed.
1230hrs - 1530hrs
UCW would facilitate the following with Mr Yates:
•Attendance with Mr Yates at a local shopping centre, basic grocery shopping for essential items as well breakfast/lunch and dinner items for at least one day.
•Bank attendance to ensure a bank account is open and is available for use. Ensure Centrelink Crisis Payment has been received and provide new address details.
•Address access to a phone. UCW stated that should Mr Yates not have a mobile phone in his property, and he has the funds available to him and time available to do so, he may purchase a phone and sim card. Alternatively, Mr Yates may purchase a sim during his grocery shop, should he already have a mobile phone. Alternatively, UCW has a loan mobile telephone for Mr Yates to borrow until he has the necessary funds to purchase this item independently. The loan devices are basic devices that allow for telephone calls, SMS and very basic internet access.
•Purchase basic clothing if required i.e. underwear, socks, trousers, t-shirt and jumper.
1530hrs
•UCW to confirm attendance for assistance the following day at 0900hrs.
1600hrs - 1645hrs
•Telephone counselling with [Alcohol and Drug Counsellor].
***Potential for attendance and access to local pharmacy during the day in order to obtain and take Antabuse medication if deemed appropriate/Ordered by the Court.
1800hrs
•CURFEW COMMENCEMENT
[Second day of supervision]
0600hrs
•CURFEW CESSATION
0900hrs - 0945hrs
•UCW arrival at Mr Yates property
0945hrs - 1345hrs
UCW would facilitate the following with Mr Yates:
•Arrive at Centrelink
•Check with Centrelink to ensure Newstart payment details are correct
•Query Crisis Payment (if this was not processed the day prior)
•Provide current contact details to Centrelink
•Request Healthcare Concession Card
•Check for any debts/owing to Centrelink - Centrepay deductions to be established if required
•Check online reporting details accurate and active
•Check exemption in place regarding job searching
1345hrs - 1445hrs
•UCW to facilitate attendance at local shopping centre for further grocery shopping and any other additional items.
1530hrs
•UCW leave property and confirm next contact on Thursday 4 June 2020 at the UCW office for video call to family.
***Potential for attendance and access to local pharmacy during the day in order to obtain and take Antabuse medication if deemed appropriate/Ordered by the Court.
1800hrs
•CURFEW COMMENCEMENT

Other days in the Management plan, of course, included different appointments and differing amounts of 'free time'.
The Management Plan, quite properly recognised the potential for interaction with Mr Yates to be affected by changes in the State and Federal responses to the COVID-19 pandemic.
As to how, at a glance, the Management Plan differs from those that had previously been in place, Ms Cassam, one of the authors of the plan, stated that while there were no additional services:[34]
This plan includes a scheduled time for video contact with his family and the attendance at a Pharmacy to take Antabuse (if required), which was not previously in place. Engagement with the SCCO, UCW, SOMS and substance abuse counselling were all previously in place, however the plan sets a scheduled time for the appointments in advance. The structure of UCW's proposed engagement is different. When Mr Yates was last in the community, UCW saw him on more of an 'as needed' basis, which at the time equalled approximately a few hours each day when he was released. UCW stated that in this plan before the Court, the contact is more structured and will occur on two set days each week, with allocated contact hours.
[34] Exhibit 9.
Mr Jarvie agreed with the characterisation of the Management Plan as providing a more structured approach to his supervision.
A later update advised that Uniting Care West proposed an increased number of hours of engagement with Mr Yates should he be released, including 25 hours (in addition to a 30 minute Skype call) in the first week and 14 hours per week thereafter.[35] As can be seen, this is a greater degree of contact with Uniting Care West than was previously anticipated (see [82] above).
[35] Exhibit 10.
Mr Jarvie gave evidence as to the efforts made to obtain an appropriate indigenous mentor for Mr Yates. He also gave evidence that he had made enquiries with the Derbarl Yerrigan Health Service as to whether Mr Yates could receive subsidised access to Antabuse medication through that service. Mr Jarvie was advised that it would be necessary for Mr Yates to apply and be assessed in person, but that such subsidies of Antabuse were currently available under a 'Closing the Gap' scheme and that Derbarl Yerrigan had indicated that there was 'probability' that Mr Yates would be eligible.
Mr Jarvie confirmed that, while the art centre that Mr Yates had previous attended was presently closed due to COVID-19 restrictions, the other agencies that would be involved in Mr Yates' supervision (COMU, Uniting Care West, Wungening) were all continuing to operate as normal.

Consideration

The first matter arising under s 33 of the Act can be dealt with relatively briefly, that is whether Mr Yates remains a serious danger to the community within the meaning of the Act.
That question is to be assessed upon the assumption that Mr Yates is not subject to a continuing detention order or a supervision order.[36] This matter was not in serious contention in the review and I am satisfied that Mr Yates remains a serious danger to the community upon that assumption. In that regard, I accept Dr Wynn Owen's evidence that Mr Yates presents a high risk of future sexual offending, a risk which must be managed, for the adequate protection of the community, by either a continuing detention order or a strict supervision order.
[36] The State of Western Australia v Rao [2019] WASC 93, [28] - [29] (Quinlan CJ).
The real issue before me is whether I can be satisfied that Mr Yates will substantially comply with the standard conditions of a supervision order and that the community will be adequately protected by making Mr Yates the subject of a supervision order.
In relation to a number of the standard conditions of a supervision order, there is good reason to be positive in relation to Mr Yates' likely compliance. In that regard, I am satisfied that Mr Yates is motivated to comply with a supervision order and motivated to engage with the various persons and agencies who would be providing support, including Mr Summerton, his community corrections officer (CCO) and Uniting Care West.
In this regard, in The State of Western Australia v Yates,[37] Jenkins J was satisfied on the balance of probabilities that Mr Yates would substantially comply with the following standard conditions:[38]
(1)reporting to a CCO as directed and advising the officer of his current name and address;
(2)reporting to and receiving visits from a CCO as directed;
(3)notifying a CCO of any change in his name, place of residence or place of employment;
(4)not to leave or stay out of Western Australia without the permission of a CCO; and
(5)be subject to electronic monitoring under s 19A of the Act.
[37] The State of Western Australia v Yates [2019] WASC 63.
[38] The State of Western Australia v Yates [2019] WASC 63, [183] (Jenkins J).
I agree with Jenkins J and am also satisfied on the balance of probabilities that Mr Yates would substantially comply with these conditions.
Mr Yates' previous breaches of his supervision order, which I will address shortly, have not related to these standard conditions, but rather to issues surrounding substance abuse. Those issues are, no doubt, a serious concern, suggesting as they do, that Mr Yates has significant difficulties maintaining his resolve to abstain from drugs and alcohol. Nevertheless, in relation to his engagement with community corrections, his attitude appears to be a positive one and he is motivated by a desire to engage with the various support services.
For these reasons, on balance, I am satisfied that if released on a supervision order Mr Yates would substantially comply with the condition to be under the supervision of a CCO and comply with any reasonable directions of the CCO.
The final standard condition that Mr Yates will not commit a sexual offence, within the meaning of s 36A of the Evidence Act 1903 (WA). That definition is broader than the definition of 'serious sexual offence' in the Act. It includes any offence against Chapter XXXI of the Criminal Code.
The prospect that Mr Yates will comply with this condition, is closely connected with whether he complies with conditions not to consume drugs or alcohol. Mr Yates' previous sexual offending and much of his general offending is associated with his problems with substance abuse. I accept Dr Wynn Owen's evidence in that regard.
It is for this reason that satisfactory management, and monitoring, of Mr Yates' substance abuse problems is a critical aspect of managing his risk of committing a sexual offence, including a serious sexual offence. This is why on previous occasions conditions have been imposed on Mr Yates that he is not to consume drugs or alcohol, and why breaches of those conditions have resulted in further terms of imprisonment and the rescission of his supervision order.
More generally, whether, and to what extent, Mr Yates' substance abuse problems can be monitored and managed is critical to whether I can be satisfied that releasing Mr Yates on a supervision order will ensure adequate protection of the community in relation to sexual offending.
As Mr Yates' history demonstrates, he has not, thus far, been able to comply with a condition that he not use drugs or alcohol. On the last occasion upon which he was released, he breached the condition within 2 to 4 days of being released by consuming drugs. Approximately a week later he breached the condition again, by consuming alcohol (and having a woman present in his home).
I accept the evidence of Dr Wynn Owen that the explanation for those (and other) breaches of the conditions of the previous supervision order includes Mr Yates' 'loneliness and isolation in a metropolitan Perth setting, limited coping skills and a now stereotyped pattern of coping in Perth'. Evidently, Mr Yates knows what he has to do to comply with the conditions, but the circumstances in which he has found himself (isolated from his family and community) have been such that he has been unable to put that knowledge into practice.
At the same time, three matters should be noted in relation to the previous occasions on which he has breached that condition.
First, they have not been associated with sexual offending itself. That is, Mr Yates has not committed a further sexual offence since he was made subject to the provisions of the Act, indeed for over a decade. This is not to downplay the importance that avoiding substance abuse has for managing his future risk of committing a sexual offence. Nevertheless, as Dr Wynn Own acknowledged, it was a protective factor that there had been a decrease in the risk of imminence of serious sexual offending.
Secondly, it is also clear that, on previous occasions upon which Mr Yates has returned to using drugs and alcohol, that behaviour has been rapidly detected and acted upon by those supervising him. In that regard, Martin CJ's expectation, in Director of Public Prosecutions (WA) v Yates [No 3], that breaches of his conditions would trigger his return to court have been borne out.[39]
[39] Director of Public Prosecutions (WA) v Yates [No 3] [2016] WASC 213, [119] (Martin CJ).
Thirdly, Dr Wynn Owen agreed that if subject to a more structured approach to support and supervision than what was applied at the time of his last release, the imminence of a breach of supervision order conditions was along the lines of months, if not greater, as opposed to days and weeks.[40]
[40] Ts (6 March 2020) 1005 - 1006.
These three matters, taken in combination, provide me with confidence that, with proper monitoring and management, Mr Yates' risk of committing a sexual offence can be properly managed in the community. In those circumstances I am satisfied, on the balance of probabilities, that he will comply with the condition not to commit a sexual offence. In particular, the nature of the conditions to which he would be subject would mean that any return to high risk behaviours, which may, in turn, lead to a return to sexual offending, would be rapidly acted upon and Mr Yates would be returned to custody.
Of course, this does present something of a dilemma. In the event that Mr Yates does return to drug and alcohol use, in breach of conditions, he would be returned to custody, making it more difficult for a court to again be satisfied that he will be compliant in the future. The practical consequence, of course, would be that Mr Yates would remain in custody.
On the other hand, there is no way of determining whether the gains that Mr Yates has made will be effective, in practice, until he is given an opportunity to live in the community. Moreover, as Dr Bannister agreed in his evidence, unless Mr Yates has the capacity to employ the treatment gains and skills in the community there is a risk of the effectiveness of those skills being lost.
Added to this, it must be remembered, is that the purpose of the conditions is not to prevent substance abuse for its own sake (although that is no doubt a worthwhile and admirable goal). Mr Yates is not subject to the Act because he has a substance abuse problem. Rather, the prevention of Mr Yates' substance abuse is for the purpose of protecting the community from serious sexual offending. The importance of Mr Yates complying with conditions related to substance use must be understood in that context.
Nevertheless, it is not in the interests of the protection of the community for Mr Yates to be set up to fail. Nor is it in the interests of the protection of the community for whatever gains Mr Yates has made to be lost.
It is for this reason, in Dr Wynn Owen's opinion, which I accept, that 'a different and proactive management approach' is needed.
Ideally, of course, Mr Yates would be released on supervision in regional Western Australia, for all of the reasons associated with loneliness and social isolation that have been identified. Current resourcing and administrative arrangements prevent that from being a possibility. There is no indication that that will change in the foreseeable future.
That is not, however, a reason to conclude that Mr Yates cannot be adequately managed in the community, or that the community cannot be adequately protected by a supervision order requiring Mr Yates to reside in the metropolitan area.
In this regard, I am impressed by the efforts to which COMU and Uniting Care West have gone to formulate a structured, proactive approach to Mr Yates' management in the community in the metropolitan area. They have each demonstrated, in my view, a genuine commitment to provide Mr Yates the best possible opportunity to successfully comply with a supervision order. It is correct that they have not yet been able to identify an indigenous mentor, but in every other respect, those agencies have put in place a structured program that is directed towards the issues that Mr Yates has found difficult when released.
In the end, I am satisfied that Mr Yates will substantially comply with the standard conditions and that the community can be adequately protected by placing Mr Yates on a supervision order, with appropriate conditions designed to ensure that protection.
Ultimately, as Dr Bannister agreed, Mr Yates is psychologically in the best possible position to make the next step (i.e. from custody to the community) and the various agencies have made the best possible efforts to assist Mr Yates to comply.
As to the conditions that should be imposed, Mr Jarvie's report included a list of proposed supervision order conditions.
The State also did not press proposed condition 56, which would have imposed a blanket prohibition on Mr Yates being at any residence where females were present (whether accompanied or not) unless approved in advance by the CCO. The State's concession in that regard was based on the evidence of Dr Wynn Owen.
I would expressly state, however, in that context, that proposed condition 4 (namely, to comply with any reasonable direction of the community corrections officer), would in my view create a sufficient power for the CCO to give tailored reasonable directions to Mr Yates in relation to his interaction with females, including as to the circumstances in which he should not enter or remain on particular premises.
Proposed conditions 53, 54 and 55 were contentious. They related to electronic devices (including mobile phones) that Mr Yates uses and required him to notify the CCO (or Police) of any devices, to produce them on request and to maintain the integrity of the data on them. While Mr Yates' submitted that his previous offending had not involved the use of such devices, I nevertheless consider that the conditions are reasonable. In particular they would provide an alternative means of verification for the CCO in supervising Mr Yates.
In the circumstances, however, I would make the conditions specific to community corrections officers. They will become final conditions 54, 55 and 56.
Proposed condition 57 was contentious. It read:
To disclose and provide details of your activities, movements and the associations you come into contact with in the community, when requested by your CCO or Police.
The condition was in substitution of a condition regularly imposed under the Act that the person subject to the order maintain a diary of their movements.[41] The issue taken with the condition was not necessarily with such a requirement, in principle, but that, depending upon how it was implemented it might be onerous.
[41] Ts (6 March 2020) 1022.
In my view, it is important that there be a condition that expressly enables the CCO to obtain relevant information from Mr Yates as to his daily activities. To take account of the concern expressed on behalf of Mr Yates, I would amend it to read:
To disclose and provide reasonable details of your activities, movements and the associations you come into contact with in the community, when reasonably requested by your CCO.
Mr Yates also raised an issue with the conditions concerning contact with children (proposed conditions 47 and 48). Those proposed conditions restricted contact with any children under the age of 18 years without prior approval. When previously on a supervision order, the relevant conditions applied to children between the ages of 11 years and 17 years. Mr Yates' concern with the proposed condition was that it would adversely impact on contact with family who had small children in circumstances in which there was no suggestion that Mr Yates had ever offended, or was at risk of offending, against a young child.
I agree that the condition would be adequate if it applied to children between the ages of 11 years and 17 years. They will become final conditions 48 and 49. In relation to reporting requirements concerning contact with children under 18 years of age, those are in any event met by the provisions of the Community Protection (Offender Reporting) Act2004 (WA).[42]
[42] See e.g. Community Protection (Offender Reporting) Act2004 (WA), s 26(1)(e), (fa).
I agree with the State that there should be a condition that Mr Yates comply with the Community Protection (Offender Reporting) Act2004 (WA). In that way, any non-compliance would be a 'trigger' enabling the State to bring contravention proceedings.
Finally, I would include an additional condition (condition 13) to the following effect.
To consult with Derbarl Yerrigan Health Service as soon as practicable for assessment as to your suitability for subsidised access to Antabuse medication.
As I have noted above, Dr Wynn Owen gave evidence that he did not think that the use of Antabuse by Mr Yates was necessary, but did consider that it would assist, particularly in the short term. Subject to proper medical assessment, I agree. It is not essential that Mr Yates use that medication. Nevertheless, I would regard the use of Antabuse, if it is available, as an adjunct to assisting Mr Yates to maintain his own efforts at avoiding alcohol abuse. The fact that he has expressed a willingness to use the medication supports his desire to be compliant in that regard and should be encouraged.
Consistent with Dr Wynn Owen's evidence, the period of the supervision order should be five years and it should commence on 2 June 2020.

Conclusion

For the above reasons, with effect from 2 June 2020 I rescind the continuing detention order and make a supervision order for five years, subject to the conditions attached to these reasons.

STANDARD CONDITIONS REQUIRED BY THE ACT

Report to a Community Corrections Officer at the place and within the time stated in the order and advise the officer of your current name and address.
Report to and receive visits from, a Community Corrections Officer as directed by the court.

Notify a Community Corrections Officer of every change of your name, place of residence, or place of employment at least 2 business days before the change happens.

Be under the supervision of a Community Corrections Officer, which includes complying with any reasonable direction of the officer (including a direction for the purposes of section 19A or 19B).

Not leave or stay out of the State of Western Australia without the permission of a Community Corrections Officer.

Not commit a sexual offence as defined in the Evidence Act 1906 section 36A during the period of the Order.

Be subject to electronic monitoring under section 19A.

ADDITIONAL CONDITIONS

Residence

Take up residence at [address not disclosed] and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer (CCO) assigned to you.

Reporting to a CCO and supervision by a CCO

Report to a CCO at your nominated release address within normal business hours on the day of release from custody under this order.
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 with any medical practitioner, psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO.
To consult with Derbarl Yerrigan Health Service as soon as practicable for assessment as to your suitability for subsidised access to Antabuse medication.
Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious sexual re-offending, as directed by a CCO.

Reporting to WA Police

Report to the Officer-in-Charge of the Sex Offender Management Squad at the Hatch Building, 144 Stirling Street, PERTH WA 6000 within 48 hours of your release from custody, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the Sex Offender Management Squad or his/her delegate.

Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004.

If requested, permit Police Officers to enter and search your residence, vehicle and/or person for the purpose of monitoring your compliance with your obligations under this order and allow the seizure of any such items that the Police Officer believes to contravene the conditions of this 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 Dangerous Sexual Offenders Act 2006.

When requested, advise Police of the names of all of your internet service providers, all mobile or landline telephone services used by you and all internet user names or identities used by you.

Disclosure/Exchange of Information

Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information.

Allow the 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 offence history.

Restrictions on contact with Victims

Have no contact, directly or indirectly, with the victims of your sexual 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 offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture and must avert your gaze from such victim at all times.

Report to the CCO and WA Police any direct or indirect contact with the victims of your sexual offending on the next occasion 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 violence, threats of violence, or the possession of weapons or offensive instruments.

Not commit an offence under s 202, s 203, s 204, s 204A, s 204B, s 217, s 218, s 219, s 220 or s 557K of the Criminal Code1913 (WA).

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.

Curfew

Be subject to a curfew, pursuant to section 19B of the Dangerous Sexual Offenders Act 2006, such that you are to remain at and not leave your approved address as directed by a CCO from time to time.

When subject to a curfew under this order, present yourself for inspection at the front door or curtilage 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.

Medications/Mental Health

Attend any medical practitioner, psychologist, psychiatrist or counsellor as directed by the supervising CCO.

Undertake any medication regime or treatment as directed by the CCO, in consultation with a medical practitioner or medical practitioners and comply with all testing to monitor your compliance with that medical treatment.

Comply fully with any treatment prescribed pursuant to condition 32.

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.

Permit any medical practitioner or medical practitioners to advise the CCO immediately if they become aware or suspect that you have, or intend to, cease undergoing pharmaceutical medication contrary to the advice of the medical practitioner or medical practitioners, or if you have apparently ceased to consult with that medical practitioner or medical practitioners on such treatment.

Prevention of high-risk situations

With the exception of public transport, not to enter in or on any vehicle where a female is present, unless the identity of such person is approved in advance by a CCO.
Not allow any female to enter or ride in or on any vehicle under your control unless the identity of such person is approved in advance by a CCO.
Not to purchase or possess or consume any inhalants or any volatile substance, unless approved by your CCO.
Not purchase, or possess, or consume or use alcohol.
Not go to, enter in, or remain at any alcohol 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
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.
To provide a valid sample for testing pursuant to Condition 41.
Not to remain in the presence of any person who is affected by alcohol or prohibited substances, or who you ought to know to be 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.
Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO.
Not enter the premises of, or access the services of, escort agencies or sex workers unless approved in advance by your CCO.
Have no contact with any child between the age of 11 and 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 supervised 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 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 between the age of 11 and 18 years is initiated by the child, unless the contact is permitted under the condition immediately above, you must withdraw immediately from the presence of the child.
Provide details of any contact with a child under the age of 18 years both to your 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, without prior CCO approval.
Report at your next contact with your CCO the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship by you with a person.
As requested by a CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence a domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.
To advise a CCO of every electronic device used by you to access the internet and the location of that device.
Permit a CCO at any location as nominated by them, to access any computer or any device capable of storing digital data, for the purpose of ascertaining your computer activities, and provide to the CCO upon request any passwords or other means required for access of that device.
With respect to any computer or telephone or other electronic device in your possession, owned by you, or previously been owned by you, whether or not that device is connected to the internet or has been used by you to access the internet, not to delete, or otherwise remove or disguise any search histories, data or logs capable of identifying your activities on that device, without the approval in advance of a CCO, including requesting or permitting another person to delete such information.
To disclose and provide reasonable details of your activities, movements and the associations you come into contact with in the community, when reasonably requested by your CCO.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Principal Associate to the Honourable Chief Justice Quinlan
8 MAY 2020

DATE	EVENT
10 August 1976	Respondent's birthday. The respondent is now 43 years of age.
1998	Respondent committed first serious sexual offence (SSO). The offence was committed in Kalgoorlie.
2003	Respondent committed second SSO. The offence was committed in Kalgoorlie the day after his release from custody.
2009	Respondent committed third SSO. The offence was committed near Laverton.
April 2014	Respondent declared a DSO and a CDO was made.
June 2015	CDO affirmed.
Early August 2016	Respondent released on a SO.
4 - 21 October 2016	Breach of SO.
24 October 2016	First contravention proceedings commenced.
28 August 2017	Released on amended SO.
2 - 4 November 2017	Breach of amended SO by drinking in park with females.
8 November 2017	Second contravention proceedings commenced.
29 March 2018	Amendments to the Act come into effect.
7 May 2018	Released on respondent's SO.
9 - 11 May 2018	Breach of respondent's SO by consuming methamphetamine.
16 May 2018	Breach of respondent's SO by drinking alcohol at home.
16 May 2018	Return to custody.
17 May 2018	Contravention proceedings commenced.
25 May 2018	Respondent pleaded guilty to breach offences.
11 January 2019	Respondent sentenced for breach offences to nine months' imprisonment to commence on 16 May 2018.
5 March 2019	Respondent made subject to a CDO.