The State of Western Australia v Yates
[2019] WASC 63
•5 MARCH 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- YATES [2019] WASC 63
CORAM: JENKINS J
HEARD: 20 SEPTEMBER, 17 OCTOBER, 10 DECEMBER 2018 & 11 JANUARY 2019
DELIVERED : 5 MARCH 2019
FILE NO/S: DSO 3 of 2013
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
NIGEL CHRISTOPHER YATES
Respondent
Catchwords:
Criminal law - Dangerous sexual offender - Contraventions of community supervision order - Application to rescind or amend supervision order
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
Dangerous Sexual Offenders Legislation Amendment Act 2017 (WA)
Result:
Supervision order rescinded
Continuing detention order made
Category: B
Representation:
Counsel:
| Applicant | : | Mr B D Meertens |
| Respondent | : | Ms M R Barone SC |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Ms M R Barone SC |
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
Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4
The State of Western Australia v Narrier [No 5] [2019] WASC 17
The State of Western Australia v Yates [2019] WASCSR 3
JENKINS J:
Introduction
By application dated 17 May 2018, the DPP[1] in the name of the State of Western Australia (the State) applied for an order under the Dangerous Sexual Offenders Act 2006 (WA) (the Act), s 23 that the supervision order (SO) which was re‑signed by the respondent on 7 May 2018 (the respondent's SO) be rescinded and that he be made the subject of a continuing detention order (CDO) or that the respondent's SO ought to be further amended (the current contravention proceedings).
[1] The Dangerous Sexual Offenders Act 2006 (WA) s 3 defines DPP to mean the holder of the Office of Director of Public Prosecutions under the Director of Public Prosecutions Act 1991 (WA). Section 7A provides that the DPP may make applications under the Act in the name of the State.
At the hearing of the current contravention proceedings the State submitted that the respondent's SO ought to be rescinded and that a CDO ought to be made.
The respondent submitted that even though he had contravened his SO I should permit it to continue in an amended form. These are my reasons for deciding to rescind the respondent's SO and make a CDO.
Breach offences
On 11 January 2019 I sentenced the respondent to a total of 9 months' imprisonment for two offences against the Act s 40A(1) (the breach offences).[2] One offence[3] was a breach of condition 41 of the respondent's SO by consuming alcohol. The second offence[4] was a breach of condition 32 of the respondent's SO by consuming prohibited drugs. My sentencing remarks[5] for the breach offences should be read in conjunction with these reasons.
[2] The Act s 40A(1) creates an offence of breaching a SO without reasonable excuse.
[3] PE 25671/2018.
[4] PE 25870/2018.
[5] The State of Western Australia v Yates [2019] WASCSR 3.
The statutory provisions
The Act s 22(2) provides that the DPP may apply for an order under the Act s 23 in relation to a person who is charged with an offence under the Act s 40A. It is not in dispute that the respondent met this criteria. The Act s 23 relevantly states:
(1)If, on the hearing of an application under section 22, the court is satisfied, on the balance of probabilities, that the person to whom the application relates has contravened … a condition of a supervision order, the court must -
(a)rescind the supervision order and make a continuing detention order in relation to the person; or
(b)subject to subsection (1B), make an order amending the conditions of the supervision order, or extending the period for which the person is to be subject to the supervision order, or both; or
(c)subject to subsection (1B), make an order affirming the supervision order without amendment or extension.
…
(1B)A court cannot make an order under subsection (1)(b) or (c) or (1A)(b) unless it is satisfied, on the balance of probabilities, that the person will substantially comply with the standard conditions or amended standard conditions of the supervision order.
(1C)The onus of proof as to the matter described in subsection (1B) is on the person to whom the application relates.
(2)In deciding which order to make under subsection (1) … the paramount consideration is to be the need to ensure adequate protection of the community.
The Act s 23(1) was amended and s 23(1B) and (1C) were inserted into the Act by the Dangerous Sexual Offenders Legislation Amendment Act 2017 (WA) (the amendments). The amendments came into force on 29 March 2018.
The respondent's SO was signed on 7 May 2018. The parties agree that the amendments apply to the current contravention proceedings.
It is not in dispute that the respondent contravened the respondent's SO by committing the breach offences. Consequently, I have to decide whether to rescind the respondent's SO and make a CDO or amend, extend or affirm the respondent's SO.
The Act s 23(1B) prevents me from amending, extending or affirming the respondent's SO unless I am satisfied that the respondent will substantially comply with its standard conditions or amended standard conditions.[6] The standard conditions of a SO, mean the conditions which under the Act s 18(1) must be included in a SO.[7] Section 18(1) provides that a SO must require the person to whom it applies to:
(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.
[6] Neither party considers that the application turns on the distinction between the standard conditions and the amended standard conditions. Consequently I will from here refer to them as the standard conditions.
[7] The Act s 3.
For the purpose of understanding the Act s 18(1)(d) and (g) it is necessary to have regard to the Act s 19A and s 19B. Those sections relate to electronic monitoring and curfew, respectively. They state:
19A.Electronic monitoring
(1)The purpose of electronic monitoring of a person subject to a supervision order is to enable the location of the person to be monitored.
(2)For the purposes of the electronic monitoring of a person, a community corrections officer may -
(a)direct the person to wear an approved electronic monitoring device;
(b)direct the person to permit the installation of an approved electronic monitoring device at the place where the person resides or, if the person does not have a place of residence, at any other place specified by the community corrections officer;
(c)give any other reasonable direction to the person necessary for the proper administration of the electronic monitoring of the person.
(3)In subsection (2) -
approved means approved by the chief executive officer.
(4)A community corrections officer may suspend the electronic monitoring of a person subject to a supervision order -
(a)while satisfied that it is not practicable to subject the person to electronic monitoring; or
(b)while satisfied that it is not necessary for the person to be subject to electronic monitoring.
19B.Curfew
(1)The purpose of a curfew is to allow for the movements of a person subject to a supervision order to be restricted during periods when there is a risk of the person committing a serious sexual offence.
(2)The curfew is a requirement that the person must remain at a specified place, for specified periods, subject to subsection (5).
(3)In subsection (2) -
specified means specified by a community corrections officer from time to time.
(4)The person is not to be required by the curfew to remain at a place for periods that amount to less than 2 or more than 12 hours in any one day.
(5)The person may only leave the specified place during a specified period -
(a)to obtain urgent medical or dental treatment for the person; or
(b)for the purpose of averting or minimising a serious risk of death or injury to the person or to another person; or
(c)to obey an order issued under a written law (such as a summons) requiring the person's presence elsewhere; or
(d)for a purpose approved of by a community corrections officer; or
(e)at the direction of a community corrections officer.
(6)A community corrections officer may give any reasonable direction to the person necessary for the proper administration of the curfew requirement.
(7)Without limiting subsection (6), if the person is authorised under subsection (5) to leave the specified place, a community corrections officer may give directions as to -
(a)when the person may leave; and
(b)the period of the authorised absence; and
(c)when the person must return; and
(d)the route and method of travel to be used by the person during the absence; and
(e)the manner in which the person must report his or her whereabouts.
Recently, in Director of Public Prosecutions for Western Australia v Hart,[8] Fiannaca J set out a number of propositions which inform the construction of the Act s 23(1B) and (1C). The parties appear to be in general agreement with the following propositions:[9]
(1)Section 23(1C) 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 [20].
[8] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4.
[9] Director of Public Prosecutions for Western Australia v Hart [20].
His Honour went on to say that in determining whether a dangerous sexual offender (DSO) will substantially comply with the standard conditions it is relevant to take into account his prior history of compliance and non‑compliance with the conditions of a SO but that prior breaches will not be determinative of the contravention proceedings in a relevant case. His Honour said:
The court must have regard to any other evidence, including evidence of developments in the respondent's circumstances since the contraventions occurred, which may inform the question of future compliance [21].
It is sufficient for me to say that all the evidence must be taken into account to determine whether a DSO will substantially comply with the standard conditions of a SO.
His Honour also considered the meaning of the phrase 'will substantially comply' in the Act s 23(1B). I have also addressed this issue in The State of Western Australia v Narrier[10] and I apply those principles to this case.
[10] The State of Western Australia v Narrier [No 5] [2019] WASC 17.
Finally, it is relevant that whilst I may not amend, extend or affirm the respondent's SO unless I am satisfied that he will substantially comply with the standard conditions, a positive answer to that question would not mean that I would automatically release him on a SO. That is because the paramount consideration is the need to ensure adequate protection of the community. Even if I was satisfied that the respondent will substantially comply with the standard conditions of a SO, there may be circumstances where, despite such a finding, I was not satisfied that releasing him on a SO will ensure adequate protection of the community. My obligation then would be to make a CDO.
Table of significant events
DATE EVENT COMMENT 10 August 1976 Respondent's birthday. The respondent is now 42 years of age. 1998 Respondent committed first serious sexual offence (SSO). Committed in Kalgoorlie. 2003 Respondent committed second SSO. Committed in Kalgoorlie the day after his release from custody. 2009 Respondent committed third SSO. 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. About two months on SO before breach. 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. About two months on amended SO before breach. 8 November 2017 Second contravention proceedings commenced. 29 March 2018 Amendments to Act come into effect. 7 May 2018 Released on respondent's SO. 9 ‑ 11 May 2018 Breach of respondent's SO by consuming methamphetamine. No more than four days on respondent's SO before breach. 16 May 2018 Breach of respondent's SO by drinking alcohol at home. 16 May 2018 Return to custody. 17 May 2018 Current 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.
Respondent's background
The respondent's background and history of offending have been set out in a number of decisions delivered by his Honour Chief Justice Martin.[11] I will repeat only some of that material but these reasons should be read in the context of the Chief Justice's decisions and his reasons for them.
[11] 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.
In summary, the respondent is a Wongai man who was born in Warburton and raised in the Warakurna Aboriginal community (Warakurna). His generalised criminal offending commenced when he was 14 years of age. As a child he accumulated a substantial criminal record for dishonesty, house breaking and driving offences. As an older teenager he also committed offences which were related to his inhalant abuse.[12]
[12] The respondent primarily inhaled petrol but he has also abuse other substances such as glue.
At 18 years of age the respondent committed his first offences of actual violence. He approached a 20‑year‑old female on a street in Kalgoorlie. After walking alongside her for a short while he stood in front of her and caused her to stop. He then placed his hand up his shirt and told her to move into a nearby carpark as he was armed with a gun. He pushed the victim on the arm, but she refused to go. A passer‑by intervened and the respondent fled.
When the respondent was 19 years old he stole a knife at a roadhouse in Laverton. When he was pursued by the victim he stabbed the victim twice in the back. It seems that he was very intoxicated. He advised the author of a pre‑sentence report (PSR) that he consumed large quantities of alcohol on a daily basis and sniffed petrol, as a result of which he suffered from memory loss.
First SSO
The respondent committed his first SSO in 1998 when he was 22 years old. Up until then he had offended very regularly and had spent considerable periods of time in custody.
During the evening of 26 October 1998 the respondent approached his 39‑year‑old female cousin in a car park in Kalgoorlie. He told the police later that he was very drunk. The respondent initially kicked the complainant on her head and body. He then dragged her by her legs into a carpark. There he sexually penetrated her without her consent on two occasions. In the course of the assaults she suffered various injuries.
A PSR prepared by a forensic psychologist stated that there was evidence to suggest that the respondent had a brain dysfunction. The respondent admitted to trying to have sex with the victim but denied having done so. The Chief Justice noticed that 'denial and minimisation of his own role in sexual offending have been recurrent characteristics' of the respondent's offending behaviour.[13]
[13] Director of Public Prosecutions (WA) v Yates [2014] WASC 136 [51].
In 1999 while on remand for the offences the respondent and others escaped from prison by removing brick work from a prison wall. He fled to South Australia and whilst at large he committed various dishonesty offences.
On 21 May 1999 the respondent was sentenced to a total term of 4 years and 6 months' imprisonment for offences relating to the SSO and to his escape.
Whilst in custody the respondent made no progress in respect of his rehabilitation. His attitude to attempts to engage him in rehabilitation programmes was poor. On a number of occasions he was found to be under the influence of substances whilst in custody. He was refused parole.
After the respondent's release from prison in February 2002 he continued to offend, to abuse alcohol and sniff petrol. In mid‑2002 the respondent committed an offence of assault occasioning bodily harm on a community nurse at Warakurna. He attended the nurses' clinic and complained of lumps in his groin. He pulled his trousers down and exposed his genital area, although he covered his genitals with his hand. He took each of the nurse's hands and placed them in the area of his groin. He held his penis and told the nurse that he had a problem with it. The nurse directed him to put his trousers back on and she moved away from him. The respondent approached the nurse, placed his hands on each of her shoulders and told her to be quiet. She threatened to shout for help. The respondent then asked the nurse for treatment for some grazes on other areas of his body. Whilst the nurse went to retrieve ointment to treat the grazes, the respondent struck her forcibly on the head, causing her to lose consciousness.
When the respondent was spoken to by the police he denied the assault other than to admit that he had hit the nurse when she had refused to conduct a blood test. He admitted to the police that he had been sniffing aerosol paint prior to the offence.
On 24 June 2002 the respondent was sentenced to 18 months' imprisonment. Inhalants were found in his cell on two occasions. Whilst in custody he completed an 18 day substance use and anger management course.
Second SSO
The respondent was released from custody on 23 July 2003. The next day he committed a SSO when a 19‑year‑old female rejected his sexual advances. He physically restrained her, removed her tracksuit pants and sexually penetrated her without her consent. During the incident the respondent punched the victim once to the chin. When arrested the following day the respondent denied having sex with the victim and said that he had only touched her on the breasts and laid on top of her.
The respondent pleaded guilty to aggravated sexual penetration without consent. The author of a PSR noted that the respondent minimised his responsibility for the offence. Eventually he admitted that he understood that the complainant did not wish to have sex with him. He attributed his offending to the fact that he was 'drunk and stoned'. In September 2004 the respondent was sentenced to 32 months' imprisonment without eligibility for parole. He was released from custody on 24 March 2006.
The respondent's generalised offending continued after his release. In November 2007 the respondent hit a woman on the right side of her face causing her to fall to the ground, grazing her left elbow as she fell. He then kicked her in the face whilst she was on the ground. The victim required two stitches to the left side of her lip and suffered grazing and swelling to her left knee and elbow. As the Chief Justice noted although the offence had no apparent sexual connotation it does shed light on his attitude towards women.[14]
[14] Director of Public Prosecutions (WA) v Yates [2014] WASC 136 [78].
Third SSO
On 9 January 2009 the respondent committed his third SSO. The victim, a 15‑year‑old girl, together with her two female relatives accepted a lift from the respondent supposedly to Laverton. He made sexual remarks towards them and threatened physical harm to them if they did not comply with his demands. The respondent was sniffing an inhalant as he drove. The respondent drove through Laverton and parked his vehicle in a remote spot. The two older women left the vehicle and the respondent forced the victim into the backseat by threatening her. He had sexual intercourse with her without her consent. The respondent then drove the women back to Laverton.
The respondent admitted to the police that he had had sex with the victim but he asserted that the older women had forced the victim to have sex. He also admitted to sniffing spray paint at the time of the incident and drinking alcohol earlier that day.
The respondent pleaded guilty to the charges. He expressed no remorse and conveyed a strong self‑justification and sexual entitlement when spoken to by the author of a PSR. The author of a psychological report prepared for sentencing concluded that the respondent had little capacity for empathy or compassion and no remorse. The author noted that the respondent's intellectual functioning appeared to be below average and the previous neuro‑psychological screening indicated borderline intellectual functioning, with the possibility of some form of acquired minor brain injury as a result of substance abuse. The author assessed the respondent using the Static‑99 risk assessment tool and assessed the respondent as being in the high risk category, relative to other adult male sex offenders, in terms of the chances of sexual re‑offending within a five year period.
On 10 August 2009 the respondent was sentenced to a total effective sentence of 4 years and 6 months' imprisonment without eligibility for parole backdated to 10 January 2009.
In March 2011 the respondent declined to participate in the indigenous men's sex offender programme. He was booked to participate in other rehabilitation programmes but did not complete them.
Application for respondent to be declared a DSO
On 9 July 2013 prior to the expiry of that term of imprisonment an application was made under the Act for the respondent to be declared a DSO.
Dr Peter Wynn Owen, consultant forensic psychiatrist, completed a report for the purpose of the initial application under the Act. He concluded that the respondent presented a high likelihood of serious violent and sexually violent re‑offending within a short time following release. He noted that there had been no intervention other than imprisonment to address his risk. Therefore history was likely to repeat itself, particularly if the respondent returned to an environment containing ongoing stressors and where offences had previously occurred.
Dr Wynn Owen expressed the view that it would be extremely risky for the respondent to return to Warakurna, given the offending behaviour which had occurred in that area and the very limited capacity for monitoring and supervision.
Dr Gosia Wojnarowska, consultant psychiatrist, also assessed the respondent. Dr Wojnarowska concluded that the respondent was at a high risk of re‑offending if not subject to a CDO. She said that the essence of his risk lay in his previous offending behaviour, unaddressed sexual offending treatment needs, anti‑social personality structure, his marked propensity for violence, his unaddressed substance abuse treatment needs and limited prospects for successful supervision.
Prior to the determination of the application the Chief Justice attempted to obtain a neuro‑psychological assessment of the respondent. Ultimately the respondent indicated that he was not willing to undertake the assessment.
The respondent's then intention was to return to Warakurna to live with his older brother. There were difficulties with this proposal given that the Chief Justice found that there were no treatment programmes or therapeutic interventions available in the area.[15] There were also concerns expressed by Warakurna community members and the victim of the respondent's most recent SSO about the respondent returning to the area.
[15] Director of Public Prosecutions (WA) v Yates [2014] WASC 136 [141].
The Chief Justice found that the respondent was a serious danger to the community and that the only order which would adequately protect the community from the risk posed by the respondent was a CDO. His Honour said:
The risks and difficulties associated with the supervision of [the respondent] in the community are so great as to render the course unacceptable and impracticable, and at this stage, it has not been demonstrated that [the respondent] would respond to treatment in a community context [160].
First review of CDO
At the first annual review of the CDO the Chief Justice accepted that the respondent had made progress towards the point at which he could be released into the community subject to a SO. However, his Honour concluded that that point had not yet been reached.[16]
[16] Director of Public Prosecutions (WA) v Yates [No 2] [2].
The respondent proposed that if released he would live with his girlfriend in suburban Perth. The Chief Justice noted that the respondent had only lived in the Western desert and Goldfield's areas when at liberty and that his lack of experience of life in a major urban setting may be a source of stress to him.[17]
[17] Director of Public Prosecutions (WA) v Yates [No 2] [77] ‑ [78].
The other area where the Chief Justice accepted that there had been a material change in the respondent's circumstances was in relation to his engagement with a psychologist since the CDO was made. The Chief Justice concluded that whilst the evidence suggested that the respondent may suffer from some form of cognitive impairment it was not to such an extent as to prevent him from deriving any benefit from behaviour modification programmes.[18]
[18] Director of Public Prosecutions (WA) v Yates [No 2] [69].
Second review of CDO
At the second annual review of the CDO[19] the Chief Justice concluded that the respondent had made significant progress to the point at which the community could be adequately protected by his release on a SO for five years.
[19] At that time the Act stipulated that there had to be annual reviews of each CDO.
In a report prepared for the second review Dr Brett, consultant psychiatrist, expressed the view that the respondent remained somewhat insightless into his offending behaviour and tended to blame intoxication and the victims for his offending. The respondent accepted that substance abuse was a significant risk factor and he had developed some very basic strategies to help reduce that risk. Those strategies focused on living with his prospective domestic partner who did not allow substances in her house and keeping himself occupied by working and painting.[20]
[20] Director of Public Prosecutions (WA) v Yates [No 3] [6].
Dr Brett also noted that the respondent had tested positively for cannabis in February 2016 whilst on the CDO. The respondent attributed his use to stress associated with his mother's deteriorating health.
Dr Brett noted that themes of denial and minimisation remained present and were a continuing risk factor relating to recidivism, as were the respondent's attitudes towards women, including his view that women were prone to making false allegations of sexual misconduct.[21]
[21] Director of Public Prosecutions (WA) v Yates [No 3] [18].
Dr Brett said that if the respondent's relationship with his proposed domestic partner worked out, his risk of sexual re‑offending would be significantly reduced. However, he noted that living in a Perth suburb away from his land and people could cause psychological stress.[22]
[22] Director of Public Prosecutions (WA) v Yates [No 3] [22].
The respondent's prospective partner gave evidence at the hearing. She was prepared to have the respondent live with her, to ensure that his life was stable and to ensure that the respondent would comply with his SO.
The Chief Justice accepted Dr Brett's view that the positive progress made by the respondent since the first review of the CDO had brought him to the point where his risk of re‑offending could be reduced to an acceptable level if his relationship with his prospective partner developed, he was provided with stable accommodation and provided with counselling and mentoring services. His Honour made the first SO which he said had the practical effect that if the respondent's relationship with his partner did not work out or they did not have adequate accommodation, conditions would be triggered which would enable the relevant authorities to bring the respondent back to court.[23]
[23] Director of Public Prosecutions (WA) v Yates [No 3] [119].
Breaches of first SO
The respondent appeared before the Chief Justice for breaching the first SO by committing the following three offences of breaching a condition of it without reasonable excuse:
(1)between 4 ‑ 11 October 2016 - consumed or used cannabis and methamphetamine;
(2)between 11 ‑ 19 October 2016 - consumed cannabis; and
(3)21 October 2016 consumed or used amphetamine and methamphetamine.[24]
[24] These are dates of subsequent breaches are taken from the Chief Justice's published reasons. They are not wholly consistent with dates of offences on the respondent's criminal history but the differences are not material.
The respondent also contravened other conditions of the first SO between his release in early August 2016 and his arrest and return to custody on 22 October 2016. These breaches were on:
(1)2 August 2016 - entered a shopping centre outside of the hours between which he was permitted to enter;
(2)3 August 2016 - same kind of breach as on 2 August 2016;
(3)18 August 2016 - left his designated residence before the time he was permitted to do so;
(4)22 September 2016 - returned to his residence outside of his evening curfew;
(5)10 October 2016 - failed to report for supervision; and
(6)20 October 2016 - failed to respond to telephone calls made in response to an alert which indicated that the power level of the battery on his GPS transmitter was low.
Charges under the Act s 40A were brought against the respondent in respect of the breaches on 10 and 20 October 2016.[25]
[25] These charges were prosecuted in the Magistrates Court.
Other relevant circumstances included that the respondent's partner had experienced ill‑health and died on 24 December 2016 and the respondent's brother had died whilst the respondent was in the community. The respondent was unable to attend his brother's funeral because of the conditions of the first SO and because he was refused permission to attend.
In relation to his use of drugs, the respondent reported that he received repeated offers of alcohol and other illicit substances whilst on the first SO. He explained his use of methamphetamine on the first occasion it was detected in his urine on the basis that it was the first time he had ever tried it. He said that he did not like it and would not use it again. The Chief Justice noted that despite this methamphetamine was detected in his urine less than two weeks later. Regrettably, one of the breach offences relates to the consumption of methamphetamine.
First contravention proceedings
The DPP began contravention proceedings as a result of the breaches of the SO committed in October 2016.
Part of the material which the Chief Justice considered in relation to the first contravention proceedings was a psychological report which included information from Mr Summerton, the respondent's psychologist. Mr Summerton expressed the view that in general the respondent had coped well in the community despite the destabilising events of his partner's ill‑health, her deteriorating mental condition, financial instability and unsuitable housing.[26]
[26] Director of Public Prosecutions (WA) v Yates [No 4] [33].
Mr Summerton also expressed the view that the respondent had developed practical coping skills which included painting, exercise, avoiding stressors, engaging in activities that would calm or be of benefit to him and consulting with his counsellors. The respondent was positively oriented towards his supervision and monitoring structure. He was always on time, or early, to his counselling sessions.[27]
[27] Director of Public Prosecutions (WA) v Yates [No 4] [34].
Ms Yun, senior community corrections officer (CCO), gave evidence at the first contravention proceedings. Ms Yun has continued to be involved in the respondent's supervision. It was clear from Ms Yun's evidence that there was no suitable accommodation for the respondent should he be released.[28]
[28] Director of Public Prosecutions (WA) v Yates [No 4] [41].
Amendment of first SO
The Chief Justice adjourned the first contravention proceedings in the hope that appropriate accommodation might be found for the respondent. Finally, in August 2017, Outcare advised that accommodation for the respondent was available in a unit in suburban Perth pursuant to the DSO supported accommodation programme.
The Chief Justice ordered that the first SO be extended to a period of five years commencing on 28 August 2017, the date on which the respondent was released into the community pursuant to his Honour's orders. The SO was also amended to delete conditions relating to the maintenance of the respondent's relationship with his partner and to include conditions relating to his new accommodation.
On 23 August 2017 the Chief Justice sentenced the respondent for the then breach offences. He imposed a sentence of 3 months' imprisonment for each offence and ordered that they be served cumulatively. He backdated the sentence of 9 months to take effect from the date on which the respondent was arrested. The net result was that the respondent had completed his sentence by the time the Chief Justice ordered the release of the respondent on the amended SO.
Breaches of amended SO
The respondent breached the amended SO between 2 ‑ 4 November 2017 by consuming alcohol in contravention of a condition of the amended SO. The facts are that on 2 November 2017 the respondent was located in a park in central Perth. He was in the company of others including three females. He was breath tested and returned a positive blood alcohol content result of 0.135%.
The respondent was arrested on 2 November 2017 and released on 3 November 2017. On 3 November 2017 the respondent was issued with a written lawful instruction by a CCO not to attend the park.
At about 9.00 pm on 4 November 2017, the respondent's GPS monitor indicated that he was again at the park. Police attended and arrested the respondent. The respondent was in company with other people including a female. The respondent was breath tested and he returned a positive blood alcohol content result of 0.199%.
The respondent was also in breach of a written lawful instruction to remain in his residence between 7.00 pm and 7.00 am unless otherwise directed by a CCO.
The respondent remained in custody until the Chief Justice re‑released him on the respondent's SO on 7 May 2018.
On 4 May 2018 the Chief Justice sentenced the respondent to a total of 6 months and 1 day imprisonment for the then breach offences. His Honour backdated the sentences to commence on 2 November 2017. Consequently, the respondent had completed those sentences by the time he was released on 7 May 2018.
Second contravention proceedings
The DPP began second contravention proceedings as a result of the breaches of the amended SO.
Mr Steve Jobson, psychologist, prepared a DSO Treatment Progress Report for the second contravention proceedings.[29] Mr Jobson's report related a conversation with Mr Summerton, the respondent's psychologist. He said that Mr Summerton told him that he had counselled the respondent whilst he was in the community and in custody. The sessions dealt with risk factors such as the respondent's heavy drinking, the strengthening of his refusal skills, drinking in public, understanding consent, his behaviour around inebriated women and underlying beliefs and attitudes which may support his offending behaviour. Mr Summerton said that the respondent had made some progress in all these areas.
[29] The report dated 20 January 2018 was tendered in evidence in the current contravention proceedings as exhibit 2.
Mr Jobson interviewed the respondent prior to preparing his report. He also concluded that the respondent had made progress in the above areas although he expressed reservations over whether the respondent was able to put into practice some of the risk avoidant strategies he articulated, such as speaking to Mr Summerton if he felt stressed.
Mr Jobson said that the respondent had a reasonable understanding as to why he was in custody and of his actions which breached the amended SO. He blamed his then breach offences on loneliness. He believed that he would not commit SSOs in the future and that he would employ strategies such as painting and speaking to Mr Summerton to avoid offending. He expressed 'ongoing resentment' at his inability to attend the funerals of his mother and other close relatives.
Mr Jobson said that the respondent had coped 'reasonably well' for the majority of the time he had been in the community on SOs. However he required support to:
(1)alleviate his loneliness and isolation;
(2)manage his desire for connection with his own people; and
(3)develop a 'healthy, prosocial sense of purpose and direction'.
Dr Wynn Owen reported the respondent's disclosure that he had had a number of consensual sexual partners during his release on the amended SO. The Chief Justice said that it was of some concern that the respondent had not disclosed these relationships to his CCO, although non‑disclosure did not constitute a breach of the SO.
In his report Dr Wynn Owen expressed the view that the respondent presented a high risk of serious sexual offending if released unsupervised. Dr Wynn Owen noted that the level of risk associated with the respondent's release increased when he was intoxicated with alcohol and other substances, and that management of this would significantly reduce the risk of him committing a SSO in the future.[30]
[30] Director of Public Prosecutions (WA) v Yates [No 5] [26].
Dr Wynn Owen reiterated that release to the community should include conditions of ongoing individual counselling, abstinence from alcohol and other drugs, GPS monitoring and consideration of an indigenous mentor.
The Chief Justice and Dr Wynn Owen were shown a video recording of the respondent in the park on the evening of 4 November 2017. The Chief Justice noted that the recording showed the respondent drinking and obviously affected by alcohol. Further, he was directing his attention to a woman who was part of the group and who was also drinking.[31]
[31] Director of Public Prosecutions (WA) v Yates [No 5] [28].
Dr Wynn Owen testified that the respondent suffered from the clinical disorders of alcohol abuse and intoxication, solvent/inhalant abuse and intoxication and from anti‑social personality disorder.
Dr Wynn Owen also testified that the respondent lacked self‑awareness and placed himself in high risk situations - including being intoxicated in the company of females who are drinking alcohol and meeting and spending time with homeless and transient people who were likely to exhibit anti‑social behaviours. Dr Wynn Owen considered that these behaviours may have been prompted by loneliness and by the lack of companionship while under the restraints of a SO.[32] The respondent had described to Dr Wynn Owen an ongoing sense of loneliness, particularly arising from the lack of contact with his own people from around the Warakurna area.
[32] Director of Public Prosecutions (WA) v Yates [No 5] [20] ‑ [21].
In his testimony, Dr Wynn Owen said that it was positive that despite the respondent drinking alcohol and being in a high risk situation he had not committed a SSO.
The Chief Justice put to Dr Wynn Owen that if the respondent were provided with counselling from the Wungening Aboriginal Corporation (Wungening), the opportunity for regular participation in an art programme, and a structured day involving beneficial social interaction - perhaps facilitated by a culturally appropriate mentor - the risk of repetition of the behaviour depicted on the video recorder taken in the park would be significantly mitigated. Dr Wynn Owen replied:
Yes. So I think that would actually reduce his risk of breach as well as in the longer term reducing his risk of reoffending.[33]
[33] Director of Public Prosecutions (WA) v Yates [No 5] [39].
Ms Yun also gave evidence at the second contravention proceedings. In her written report she said that the respondent had confirmed that he had consensual sexual intercourse with three women on three different occasions. He had met the women in the city. He further advised Ms Yun that, on one occasion, he had approached a woman and asked her to have sex with him. She had refused and the respondent had not pursued the matter.[34]
[34] Director of Public Prosecutions (WA) v Yates [No 5] [56].
At a resumed hearing on 4 May 2018 Ms Yun advised the court that accommodation had become available to the respondent, being the same accommodation he had occupied during his most recent period in the community.
Release on the respondent's SO
The Chief Justice concluded that:
(1)the respondent's then breach offences had come about because of the difficulties which the respondent had experienced in adjusting to life in metropolitan Perth and in particular to the loneliness and cultural isolation;
(2)the measures which had been put in place to monitor the respondent's conduct had worked in the sense that his contraventions were identified, he was apprehended and taken into custody without him committing a SSO;
(3)the prospect of the respondent re‑offending imminently after release appeared to have diminished significantly;[35]
(4)he was not satisfied that the risk of the respondent committing a SSO was unacceptable;[36] and
(5)that the level of risk could be reduced to an acceptable level if the respondent was again released on a SO.
[35] Director of Public Prosecutions (WA) v Yates [No 5] [85].
[36] The Act then provided that the court could only make a CDO if it was satisfied that there was an unacceptable risk that if a CDO was not made the respondent would commit a SSO.
Accordingly, on 7 May 2018 the Chief Justice made orders with the result that the respondent was released under the respondent's SO on 7 May 2018 or shortly thereafter.
Breaches of the respondent's SO
On 11 May 2018 the respondent was directed by his CCO to provide a sample of urine for analysis. It gave a positive reading to amphetamine with a concentration of 1,293 mg/L and methylamphetamine with a concentration being greater than 5,000 mg/L. As the respondent's previous test result in relation to a sample he provided on 9 May 2018 was negative to any illicit substance or drug, I concluded that the respondent had used methylamphetamine (it may have also contained amphetamine) on one occasion between 9 and 11 May 2018. When sentencing the respondent I noted that meant that he had used illicit drugs only two ‑ four days after he was released on the respondent's SO.
On 16 May 2018 the police attended the respondent's home to conduct an unannounced home visit. Police directed the respondent to undergo a random preliminary breath test. It returned a positive result to alcohol. He was taken to the Perth Police Station and subjected to a breath analysis which gave a result of 0.039%. At the time the police attended the respondent's home there was a woman present. No sexual contact had occurred between the respondent and the woman and he told the police that he did not intend to have sexual contact with her that evening.
The respondent was arrested and he has been in custody since 16 May 2018.
Evidence in the current contravention proceedings
Psychiatric report - Dr Wynn Owen
For the purpose of the current contravention proceedings, Dr Wynn Owen assessed the respondent and prepared a psychiatric report.[37] Dr Wynn Owen also provided oral evidence.[38]
[37] Dated 3 September 2018 pursuant to the Act s 37.
[38] Dated 20 September 2018.
Concerning the breach offences, the respondent advised Dr Wynn Owen that he had obtained methamphetamine from 'someone [the respondent] met in the city' but he was unable to explain why he chose to use amphetamine other than that he did so to improve his mood. Dr Wynn Own stated that the respondent seemed to be aware of the high likelihood that it would be detected in a urinalysis. The respondent also frankly acknowledged his consumption of alcohol and that his awareness that it was a condition of the respondent's SO that he not do so.
The respondent's progress in the community
The respondent reported to Dr Wynn Owen that his mood had remained stable whilst he was in the community and he was 'okay' for most of the time.
Mental state examination
Dr Wynn Owen stated that the respondent was cooperative at the interview and that rapport was established rapidly. The respondent appeared to be upbeat and affable with normal affective reactivity. There was no evidence of thought disorder.
Risk assessment
There was no change to the respondent's Static‑99R (2016 revision) score since December 2017. The respondent remained in the 'well above average risk' group for sexual reoffending. The score indicated a 5‑year recidivism rate of 20.5%.
Dr Wynn Owen found that the respondent's problem with self‑awareness and problems with stress and coping in the community were highlighted by his use of alcohol and amphetamines to alter his mental state. At interview, the respondent could not identify any specific stressors leading to his drug or alcohol use nor could he describe the sequence of thought and events that led to his choices. Dr Wynn Owen believed his use of alcohol and amphetamine was impulsive rather than planned and without any consideration of his actions, but not apparently related to overt/conscious stress. In respect to his manageability, Dr Wynn Owen concluded that the respondent clearly has difficulty in abiding by the conditions of a SO as evidenced by his breach of the conditions almost immediately after his release.
Dr Wynn Own concluded:
[The respondent's] level of risk increases when he is intoxicated with alcohol or other substances. Management of this aspect of his risk will significant reduce his risk of committing a future [SSO].
I remain of the opinion that [the respondent's] reoffending risk can be managed in the community if an appropriate supervision, monitoring and support structure is in place.
In Dr Wynn Owen's opinion, it is unlikely that any therapeutic intervention will alter the respondent's risk of reoffending if the respondent remained in custody. If released, much of Dr Wynn Owen's recommendations related to substance abuse and included:
(1)ongoing individual counselling;
(2)abstinence from alcohol and drugs; and
(3)regular random testing for alcohol and drugs.
Additionally, Dr Wynn Owen recommended consideration be given to providing the respondent with a mentor and permitting him to live outside of the Perth metropolitan area.
Oral evidence
Evidence‑in‑chief
In his oral evidence, Dr Wynn Owen elaborated on the respondent's 'problems with self‑awareness'. He described that while on an intellectual level, the respondent understood the relationship between his drug and alcohol intoxication and his breach of conditions, he is not able to implement this knowledge.[39] In his opinion, the respondent's difficulty in complying with the conditions of a SO is because
he is a fish out of water in that in metropolitan Perth, as a regional Aboriginal man, he finds it very difficult to gain companionship or conversation, and that notwithstanding, I think, a degree of awareness of risk that he then makes the decision, which is probably poor judgment, to associate with people who are more like himself to get that companionship.[40]
[39] ts 716.
[40] ts 718.
Dr Wynn Owen confirmed his view that if the respondent were released, that consideration ought to be given to his release outside of the Perth Metropolitan area. If the respondent were to remain in Perth without interactive and responsive management, Dr Wynn Owen predicted that the respondent would breach his conditions in a relatively short period of time.
Cross‑examination
In cross‑examination, Dr Wynn Owen clarified that the likelihood of the respondent breaching his conditions in the same manner (if released in the Perth metropolitan area) was not in relation to serious or sexual offending occurring in the short term. Dr Wynn Owen confirmed that the respondent had been in the community for a longer period of time without sexually offending and the imminence in respect of sexual offending had decreased since his assessment in 2014.
Dr Wynn Owen confirmed that the respondent's periods of time in the community since 2016 have been attenuated due to stress.
In relation to the recommendation that the respondent have interactive and responsive management, Dr Wynn Owen clarified that an encouraging, interactive, supportive and assertive approach to engagement was required. A proactive and interactive approach to the respondent's management would involve spending more time with him in his environment, accompanying him to engagements and his mentor spending time with him. Dr Wynn Owen was unable to predict whether this would cause the respondent to substantially comply with the conditions of a SO, but it was clear to him that the current approach was not working.
Dr Wynn Owen stated the respondent knew on a very simple level that some members of the Warakurna and Kalgoorlie communities may not want him to live in those communities because of his offending.
Dr Wynn Owen's addendum report
At my request Dr Wynn Owen prepared an addendum report[41] relating to the medication disulfiram (Antabuse) and its suitability for the respondent to manage alcohol dependence.
[41] Dated 27 September 2018. To be read in conjunction with the Contravention Review Report of 3 September 2018.
According to Dr Wynn Owen Antabuse is used to manage alcohol dependence and the associated symptoms of alcohol consumption by making alcohol consumption extremely unpleasant.[42] Missing a dosage for one day and then drinking alcohol would significantly reduce the unpleasant reaction to alcohol caused by the drug. Therefore, the treatment would be most successful when the daily dose of Antabuse was supervised. Dr Wynn Owen noted the risks that an individual taking Antabuse would 'drink through' an Antabuse reaction and that some people with a long term alcohol dependency are familiar with such 'hangover' symptoms and regard them as part of their daily life.
Applicability to the respondent's circumstances
[42] Including sweating, headache, dyspnoea, flushing, breathlessness, palpitations, nausea and vomiting.
Dr Wynn Owen stated that the respondent's pattern of drinking and alcohol related behaviours during his adult life (and whilst not in prison) meet the diagnostic criteria for Alcohol Use Disorder. Despite this the respondent had no evidence of alcohol withdrawal when he returned to custody after his two most recent periods in the community. During interview, the respondent did not describe any cravings for alcohol and attributed his return to drinking while on a SO as a result of seeking social contact, experiencing peer pressure to drink and feeling like it would be offensive to others if he did not drink.
Interview
Dr Wynn Owen interviewed the respondent on 26 September 2018 and outlined the nature of Antabuse, its effects and the importance of compliance. The respondent told Dr Wynn Owen that he had spoken to his lawyer about the medication and was prepared to take it. Dr Wynn Owen stated that the respondent's motivation was primarily to gain release rather than to address alcohol abuse.
Opinion
Dr Wynn Owen stated that:
•Antabuse may reduce the likelihood of the respondent drinking whilst in the community, provided he complies with it daily.
•The medication would complement the counselling the respondent would receive from Mr Summerton and if the respondent's alcohol use is reduced, this will reduce his risk of future sexual offending.
•Antabuse would have no effect if the respondent used amphetamine and/or methamphetamine.
•The cost of the medication may present an issue for the respondent because it would represent a significant portion of his Centrelink payment and this may become a factor in compliance.
•Without a mechanism to monitor compliance, there will be a high likelihood of non-compliance potentially associated with both cost and the unpleasant reaction to alcohol.
•As the respondent currently agreed to take Antabuse, he should have the necessary screening blood tests to ensure there are no contraindications to treatment, and then have a further discussion with a treating General Practitioner.
Treatment progress report - Ms Wilson‑Brown
Ms Wilson‑Brown, a senior counselling psychologist with the Department of Justice, spoke to Mr Summerton and interviewed the respondent on 10 August 2018. She prepared a treatment progress report[43] and gave oral evidence.[44]
Treatment progress
[43] Exhibit 1, 93. The report also contains and draws upon an interview with Mr Summerton, senior counselling psychologist on 10 August 2018, the perusal of file information, counselling case notes, Total Offender Management Solution (TOMS), prior professional assessments and the Book of Materials (exhibit 1).
[44] On 20 September 2018.
Prior to the respondent's release in May 2018, he participated in three individual counselling sessions with Mr Summerton. The respondent then participated in one session in the community (on 14 May 2018) and another session following his return to prison (on 6 August 2018).
Ms Wilson‑Brown stated that Mr Summerton had positively described the respondent's participation and responsiveness to the counselling. Mr Summerton told Ms Wilson-Brown that the respondent had developed an adequate understanding of matters relevant to his offending (including his substance abuse), engagement with women in public places and the need for consent for sexual contact.
Ms Wilson‑Brown reported that Mr Summerton viewed the respondent as not being naturally inclined to disclose and reflect on personal issues, but would instead report that he is coping well. Mr Summerton perceived the respondent as valuing his independence and noted his openness in receiving practical support, rather than verbal intervention.
The respondent was uncharacteristically late to his only community counselling session due to missing public transport. His expressed lack of concern for his lateness was noted by Mr Summerton as unusual. The respondent reported he had no problems in his adjustment into the community and Mr Summerton stated that this comment was consistent with the respondent's relaxed presentation. The respondent was also observed to show no apparent signs of concern at returning a positive result for drug use.
In the respondent's session since returning to custody, Mr Summerton reported that the respondent justified his substance abuse as being caused by stress, isolation and lack of meaningful activity. Mr Summerton observed that the respondent's mode of socialisation in the community and the development of his skill to say 'no' to offers of alcohol and drugs would be an ongoing challenge.
Coping strategies Mr Summerton discussed with the respondent to manage the risk factors of his substance abuse and contact with women who were affected by substance included:
(1)desisting from substance use;
(2)employing refusal skills;
(3)engaging in activities that are meaningful to him and which might allay stress; and
(4)talking to identified parties to address his problems.
Mr Summerton said that the respondent inevitably gravitated towards people 'from country' but who 'typically have lifestyles that are not conducive to effective risk management'. Recently, the respondent's feeling of displacement was accentuated by deaths in his immediate family and he 'presented with considerable resentment' when refused permission to attend these funerals.
Mr Summerton said that:
(1)'talk type' intervention appeared to have limited value as a standalone intervention;
(2)factors such as language and culture present as barriers to the efficacy of psychological intervention and inhibit the respondent's willingness to raise issues spontaneously;
(3)the respondent was able to understand concepts and respond to questions when presented in a familiar language; and
(4)counselling alone is unlikely to have any meaningful impact on the respondent overcoming loneliness and isolation.
Interview
Ms Wilson‑Brown reported that the respondent maintained his attention throughout the interview and was responsive to all questions she posed, including those about his recent sexual interactions. He gave her the following information:
(1)his engagement with Mr Summerton was positive, comfortable and trust had developed;
(2)he would talk to Mr Summerton if he had a problem in the community but he was unable to explain why he did not talk to him about how he was coping following his release in May 2018;
(3)when he committed the breach offences he had 'too much on [his] mind' in referring to the deaths of several family members;
(4)he was frustrated with his treatment on the SO, disappointed that his SSOs were still being discussed and that he wanted to 'move on with [his] life';
(5)it was unfair to deny his request to attend his mother's funeral in Warakurna;
(6)he felt 'caught' in the middle, as his family was upset at him and did not understand the prohibition;
(7)he does not talk to police as they would 'put more report on [him]' and that he only speaks to his lawyer;
(8)he feels that his CCO puts 'too much pressure on [him]' and that he felt like he was 'running around like a chook with no head on' when having to attend three appointments in one day;
(9)he was annoyed about the strict conditions of the SO particularly when he was questioned continuously about his whereabouts, who he was associating with and what he was doing;
(10)in reference to an incident when he was given a warning about being late for an appointment after he missed the bus,[45] he reported that he used amphetamine after receiving the warning (as he thought he was already in trouble);[46]
(11)he initially avoided associating with people who drank alcohol in the park but said he got 'mad' at being around the house with no one to talk to;
(12)he refused alcohol in some instances but he relented after he was placed under pressure by people to drink;
(13)he does not drink alcohol often as he saw the consequences for others that usually led to violence;
(14)he knew he was not allowed to have women at his house and he denied having any sexual relations with a woman who was at his house on 16 May 2018; and
(15)he knew that he needed to obtain consent before initiating sexual intercourse with someone.[47]
[45] This may refer to him being late for his appointment with Mr Summerton and/or Ms Yun.
[46] Ms Wilson‑Brown reported that this assertion is factually incorrect as the respondent tested positive to an amphetamine sample taken on 11 May 2018 (whereas the respondent referred to the incident occurring on the 14 May 2018).
[47] He explained this as being when it is okay to have sexual intercourse with someone. When asked about consent, the respondent said he could not think properly as 'too many people ha[d] passed away' but when asked he said he cannot have sex with a woman who is drunk.
The respondent described his high risk situations in the community for offending being:
(1)people offering him alcohol or amphetamines;
(2)associating with family or friends who are drinking;
(3)boredom;
(4)being alone;
(5)not seeing his family; and
(6)feeling like others are 'dragging [him] this way and that'.
The respondent explained that when feeling lonely and missing family he would talk to them on the phone and look at pictures of Warakurna, his family and their paintings on the internet. The respondent denied that socialising with drunk women was an ongoing risk factor for him. His strategies for managing risk factors are avoiding those who are drinking or using drugs, drawing art and using his Xbox and stereo.
Ms Wilson‑Brown reported that the respondent would like to engage in counselling in the community and found it helpful talking to Mr Summerton about his family. The respondent ideally wished to be released to live at Warakurna, but also said release to Kalgoorlie would be helpful as he knows the area and other families who live there.
Ms Wilson‑Brown's opinion on future intervention issues
In Ms Wilson‑Brown's opinion, the respondent's understanding of his offending related risk factors and management strategies appear unchanged since his last psychological assessment. The respondent was able to provide a basic plan to manage issues central to his risk of sexual re‑offending.
Ms Wilson‑Brown found that the respondent's ability to articulate his understanding of consent had improved. She also found that the respondent's use of substances and his contact with antisocial peers related to him experiencing stressors during his initial transition from custody into the community. Ms Wilson‑Brown identified these stressors (that also featured in previous contraventions) to include:
(1)social and family isolation;
(2)unresolved grief; and
(3)pressure from some friends and community members to return to Warakurna.
Ms Wilson‑Brown noted that it is unclear how to best manage the respondent's resentment toward those attempting to manage him in the community. The respondent also appears to experience difficulty in asking for help and appears distrustful of authority figures. Ms Wilson‑Brown suggested that a case management approach conducive to his introverted personality style and his need for independence would be of benefit. Acknowledgement, reinforcement of positive behaviour and a supportive relationship would also be likely to benefit the respondent.
Ms Wilson‑Brown concluded that the respondent should continue individual counselling with Mr Summerton, engage with a mentor and have substance abuse counselling. Additionally, she reported:
On‑going treatment considerations include rehearsal of behaviour risk management strategies specifically related to avoidance of substance use and antisocial peers and initiating sexual interactions with women, managing grief and cultural expectations, continuing to develop a sense of connectedness to his community and family, and developing goals in attaining an independent and pro-social lifestyle.
Evidence‑in‑chief
Ms Wilson‑Brown confirmed that the respondent had a positive attitude about continuing counselling with Mr Summerton and he was willing to engage in other support services.[48]
Cross‑examination
[48] ts 758.
Ms Wilson‑Brown clarified that she did not have any explanation as to why the respondent used methamphetamine, but stated it was not in defiance of his CCO or in response to any resentment he felt. Ms Wilson‑Brown also explained the respondent's difficulty in asking for help as being to be due to his intellectual functioning and introverted personality style.
When questioned towards her use of the word 'resentment' Ms Wilson‑Brown clarified that the respondent had not specifically used that word, she recalled him to use the word 'upset' at his SO conditions. She clarified that her observation of his resentment was gathered from her impression of him being lonely, unhappy and would have resentment towards the concept of a DSO order[49] rather than towards people who supervise such an order's conditions. Ms Wilson‑Brown stated there was no indication that the respondent would not follow the orders of CCOs or fail to attend for supervision.
Performance report - Ms Yun
[49] ts 766.
Ms Yun interviewed the respondent on 10 August 2018 and prepared a treatment progress report.[50] She also gave oral evidence.[51]
Compliance with supervision
[50] Exhibit 1, 100 dated 6 September 2018.
[51] Dated 20 September 2018.
Ms Yun reported that following the respondent's release on 7 May 2018, the conditions of his SO were explained to him. The respondent was directed to report for supervision at 10.30 am on 9 May 2018. The respondent recorded this in his diary. On 9 May 2018, the respondent reported one hour earlier than required and indicated he was not sure of the time. The respondent was subsequently directed to report for supervision on 14 May 2018. On that day the respondent reported one hour later than directed, claiming that he had been caught up at his Sex Offender Management Squad (SOMS) appointment. Ms Yun believed that the respondent had ample time between his SOMS appointment and his supervision appointment. The respondent was spoken to firmly regarding the importance of timely attendance and he was given a formal warning letter.
Programmatic intervention
The respondent's first counselling session was scheduled for 11 May 2018 but the respondent reported one hour late and claimed to have missed the bus.
Ms Yun reported that Uniting Care West (UCW) had informed her that:
(1)The respondent received a total of 28 contact hours with UCW staff, with an average of two to three hours each day to assist him with daily living tasks.
(2)UCW had attempted to contact Wungening to facilitate a counselling appointment but the respondent informed UCW that he did not want to make contact at the time.
(3)A UCW mentor had attempted to make contact with the respondent but the respondent did not respond to these attempts. A mentoring session was eventually scheduled for 17 May 2018.[52]
[52] This would not have occurred as the respondent was in custody from 16 May 2018.
Ms Yun reported that the Department of Justice's Community Offender Monitoring Unit (COMU) and UCW worked to facilitate contact with Wungening to schedule an appointment for the respondent to engage in substance abuse counselling. The respondent was encouraged to make in‑person contact with Wungening but there was no record of him doing so. Ms Yun reported that when the respondent was released, priority was placed on assisting him with daily living tasks to enable him to settle into a routine and to alleviate any stress associated his release into the community.
Following the respondent's remand in custody, Ms Yun reported that further liaison occurred with Wungening to arrange structured phone contact with the respondent. Wungening confirmed that since the respondent's remand in custody on 16 May 2018, phone counselling appointments occurred on six occasions,[53] during which Wungening had delivered the 'U‑Turn' substance abuse programme. It was anticipated that the respondent would have completed this programme by 20 September 2018 and the provision of this service would then need to be re‑evaluated.
Prison behaviour since return to custody
[53] Phone counselling sessions were reported to have occurred on 21 June 2018, 12 July 2018, 9 August 2018, 16 August 2018, 23 August 2018 and 31 August 2018 with another appointment was reported to be scheduled for 7 September 2018.
One adverse custodial incident was recorded against the respondent. On 2 August 2018 a pencil sharpener blade was found secreted in his cell. He denied any knowledge of the contraband and he was issued with a caution. The respondent was also subject to eight urinalyses[54] and all results reported negative to illicit substances.
Strategies and considerations for managing risk in the community
[54] Occurring 28 May 2018, 15 June 2018, 30 June 2018, 11 July 2018, 20 July 2018, 30 July 2018, 21 August 2018 and 3 September 2018.
In reference to the potential for the respondent to reside outside of the Perth metropolitan region, Ms Yun reported that this would significantly limit his ability to accept intensive interventions (such as substance abuse counselling and individual psychological counselling). Additionally, Ms Yun further said that Kalgoorlie Adult Community Corrections Centre had also confirmed that there were no services in Kalgoorlie to provide access to an indigenous mentor.
Additionally, Ms Yun reported that the Victim‑Offender Mediation Unit (VMU) had advised that it would not support the respondent residing in or visiting the Goldfields Lands region due to the isolation and vulnerability of the respondent's victims who live in the area.
Proposed community supervision plan
In terms of the familial support available to the respondent, Ms Yun reported that phone contact had been established with the respondent's brother who maintained his plan to move to Perth if the respondent was released.
Ms Yun reported that UCW had confirmed that the Indigenous Mentoring Program would be available for the respondent to access upon release into the community. UCW would facilitate contact between the respondent and a mentor.
The respondent did not have employment opportunities but if he was released on a SO he would be encouraged to maintain contact with his nominated job network provider. Options for employment and training would be explored.
Oral evidence
Examination‑in‑chief
Ms Yun provided the court with an update regarding the availability of accommodation for the respondent. She stated that there was one accommodation prospect in Perth that had been recently made available under the DSO Supported Accommodation programme and that this option could be assessed.
Ms Yun stated that Kalgoorlie Community Corrections Centre did not have regular psychological counselling available and that substance abuse counselling is available, but would not be as accessible as in Perth. Ms Yun reaffirmed that there was no available accommodation in Kalgoorlie.
In relation to the respondent's phone counselling with Wungening while in custody, Ms Yun clarified that this resulted from discussions between COMU and Wungening. Ms Yun stated that it would not be able to continue in a detention setting.
Ms Yun testified that the only time the respondent appeared to resent aspects of his supervision was when he was denied permission to go to the funerals of family members. On such occasions the respondent would appear extremely agitated and would express that he was very upset.
Ms Yun stated that there had been a deliberate attempt to minimise pressure on the respondent during the first week of his release in May 2018 by implementing a structured routine. Additionally, when asked about Ms Wilson‑Brown's reference to the respondent's feelings of 'running around like a chook with no head on' due to attending three appointments in a day, Ms Yun clarified that the respondent was not attending three supervision and/or psychological counselling appointments in one day.
Cross‑examination
In cross‑examination, Ms Yun agreed that on 14 May 2018, the respondent had to report to her, go to SOMS and that he could have had an appointment which related to UCW.
Ms Yun stated that the respondent had not appeared hostile towards her and described the respondent's reaction at not being granted permission to attend funerals as an emotional response. Ms Yun had not received any reports from UCW indicating that the respondent was hostile or resentful of their services. Ms Yun agreed that the respondent was quite open about his circumstances, such as his place of residence and employment. Ms Yun also stated that there was an intention for her to remain his CCO, depending on resources, and that she felt as though she and the respondent had increasing rapport. Ms Yun stated that the respondent had demonstrated a willingness to comply with the conditions of a SO in the future, but she hesitated to agree with the proposition that the respondent would be likely to comply with electronic monitoring.
Ms Yun stated that the respondent had been on the waiting list for Noongar Mia Mia accommodation since 22 January 2018 but that accommodation was allocated on a needs basis, rather than a waitlist system. Subsequent enquiries revealed that it was unlikely that the respondent would get accommodation from Noongar Mia Mia.[55]
52 Ms Cassam confirmed that no current accommodation was available. Properties for single occupants are rare to come by and Noongar Mia has not housed a single occupant for over 18 months. Ms Cassam stated that there had been no new information regarding accommodation availability in regional Western Australia or Kalgoorlie.
Ms Yun agreed with the theme of the respondent's feelings of dislocation and loneliness in the Perth community. Other than providing the respondent with a mentor, Ms Yun stated that if released, there is an intention to canvas the option of engaging the respondent in a men's group.
Evidence on 17 October 2018
On 17 October 2018 Dr Wynn Owen provided further oral evidence about Antabuse and Ms Kara Cassam, a team leader at COMU, gave evidence about accommodation options for the respondent. I also permitted the State to re‑open its case to tender the video recording of the respondent drinking in the park on 4 November 2017. Dr Wynn Owen was examined about the recording. [56]
Oral evidence of Dr Wynn Owen
Examination‑in‑chief
[56] Exhibit 3. The disk footage contained material showing the respondent in a park on 4 November 2017. This footage was referred to previously in Director of Public Prosecutions (WA) v Yates [No 5] [10] ‑ [13], [28] ‑ [29].
Dr Wynn Owen stated that the video recording showed that approximately 85 ‑ 90% of the time, the respondent was focussed on the one female member of the group and that the respondent's interaction with the other four or five persons in the group was fairly minimal. He stated that if the respondent was intoxicated, this would have been a high‑risk situation for the respondent.
Dr Wynn Owen confirmed that Antabuse is an oral tablet, taken once daily (usually in the morning). Dr Wynn Owen elaborated on the effects that a person would experience if they took the medication and then drank alcohol. These included symptoms such as headaches, tremulousness, sweating and pallor. He said that it does not take very much alcohol at all for these effects to occur.
Dr Wynn Owen stated that a dosage of Antabuse has a relatively short half‑life, meaning that if someone has missed just one dose, they are likely to have a significantly reduced adverse reaction to alcohol. It takes approximately a week of abstinence from the medication for there to be no adverse reaction to alcohol. Dr Wynn Owen confirmed that there is currently no test available to determine whether Antabuse had been taken.
Dr Wynn Owen stated that in the respondent's situation, rather than using Antabuse to manage alcohol cravings, Antabuse would be used to assist with avoiding alcohol in social circumstances and when under peer pressure to do so. He noted that the respondent had told him that he would take the medication and that he wants to stay out of prison.
After considering the results of recent blood tests,[57] Dr Wynn Owen concluded that the respondent would be suitable to start taking Antabuse. However, it would be 'absolutely essential' to monitor the respondent to ensure its safe use. Dr Wynn Owen recommended monthly tests for the first three months to ensure no abnormalities were emerging.
Cross‑examination
[57] Exhibit 5.
Dr Wynn Owen agreed that Antabuse would assist in making the consumption of alcohol an unpleasant experience and to make the respondent stop and think before drinking. Dr Wynn Owen confirmed that the respondent was motivated to try the medication despite the costs.
Dr Wynn Owen clarified that the respondent had not said anything to create concern of non‑compliance with taking the medication. Rather, he relied on his knowledge of the respondent in saying that without compliance monitoring there was a high likelihood of non‑compliance with a prescription of Antabuse. For this reason there should initially be daily supervision of the respondent's dose of Antabuse.
Dr Wynn Owen told me that no drug other than Antabuse could be used by the respondent to assist him to control his use of alcohol. He said that some people do not agree with aversion therapies (of which Antabuse is one) but provided the respondent was fully informed (of its effects and possible side effects) Antabuse would probably be the best option for him. Despite that opinion, Dr Wynn Owen said that in his opinion the use of toxic medications such as Antabuse should not be part of a SO because they undermine the physician/patient relationship.
Dr Wynn Owen also expressed concern that making Antabuse use a condition of a SO could cause the respondent to feel resentment and to 'buck against' the requirement. The consequence could be that the respondent would breach his SO. He said that an element of choice by the respondent to take the medication would give him a degree of autonomy. Although he acknowledged that the respondent had chosen not to do the right thing in the past when given the opportunity to help himself.
Dr Wynn Owen stated that the respondent could commence Antabuse as soon as the day before his release from prison however he said that it would be best for the respondent to take it for a month before his release from prison to determine whether it would cause any adverse effects. This would also ensure that the respondent was familiar with taking the medication each day before his release.
Dr Wynn Owen confirmed some people may secrete a pill in their mouth or otherwise secretly avoid taking medication even under supervision. He also confirmed his knowledge that pharmacists or any other person undertaking supervision of medication do not have any powers to force a person to open their mouth to check whether medication has been swallowed.
Oral evidence of Ms Cassam
Examination‑in‑chief
Ms Cassam testified that COMU does not have the resources to monitor the respondent's dose of Antabuse daily or to administer the medication daily. Ms Cassam stated that she had not directly checked with UCW but that she anticipated a similar position.[58]
[58] Ms Cassam further explained that UCW were not available on weekends and would not be able to guarantee to see the respondent on a daily basis. Ms Cassam stated that UCW have firmly stated their view that they perform the role of reintegration support only.
Ms Cassam agreed that the cost of the medication per month would be a significant proportion of the respondent's Centrelink benefits. Ms Cassam stated UCW have emergency financial relief that could be provided to the respondent - but there is no guarantee that this would be ongoing. She stated that in order to obtain this assistance, the respondent would need to participate in case management with UCW and potentially attend financial counselling. Ms Cassam also stated that she was unsure as to what proportion of the costs for medication that the respondent could receive from UCW.
Ms Cassam confirmed that since the last hearing, there had been some update on the availability of accommodation and a desktop spatial analysis undertaken by police.[59] Ms Cassam confirmed the exclusion zones. She stated that Ms Yun had been in contact with the VMU and the Child Protection and Family Support and that they had no current concerns with the proposed address.
Cross‑examination
[59] Exhibit 6.
Ms Cassam stated that COMU do not cover the costs of a DSO's medication and that the onus is on the respondent to budget with his money.
When asked about a potential agenda for the respondent (as previously discussed with Ms Yun), Ms Cassam stated that UCW are kept updated with each court appearance and that a tentative appointment had been made with the respondent's substance abuse counsellor at Wungening for Tuesday coming (23 October 2018) in the event that the respondent was released. She stated that no tentative agendas had been made with the proposed men's group.
At the conclusion of the hearing on 17 October 2018 I told counsel that I would be assisted by some further evidence in relation to how the respondent's use of Antabuse could be supervised in the community, the cost of Antabuse, means by which the respondent could be funded to obtain it and whether he would be permitted to commence its use in custody.
Updated Performance Report
Ms Yun[60] prepared an Updated Performance Report[61] in which she reported that the respondent could commence Antabuse in custody. However, she said that the prescribing doctor would need to assess the respondent's suitability for it, independent of Dr Wynn Owen's assessment. An opinion was required also from the hepatology clinic at Fiona Stanley Hospital.
[60] Ms Yun's report was indorsed by herself, Kara Cassam and James Hosie.
[61] Dated 26 October 2018.
A pharmacy in the area of the respondent's proposed accommodation had confirmed that it could dispense Antabuse daily to the respondent for free. The respondent would need to sign to confirm receipt of the medication. He would also need to sign a consent to release/obtain information for the pharmacy to liaise with COMU. COMU would be able to contact the pharmacy Monday to Friday to confirm that the respondent had attended as required. However, it could not contact the pharmacy on Saturdays, Sundays and public holidays.
The regular cost of Antabuse is $89.90 for a one month supply. It is not included in the pharmaceutical benefits scheme. Further enquiries had been made and it was confirmed that the respondent would be responsible for paying for the medication. The Department of Justice are unable to provide financial assistance for Antabuse. However, it would advise the respondent of any options available for financial assistance from the community and support him in accessing these services.
The Derbarl Yerrigan had told Ms Yun that indigenous patients can be assessed by a doctor for eligibility for assistance under the Closing the Gap scheme. If eligible, patients will qualify for medication to be obtained for free or at a subsidised rate. Staff at the health service could not confirm with Ms Yun if Antabuse would be covered under the scheme. They were unable to inform her as to what may preclude a patient from gaining assistance under the Scheme. She was told that patients needed to be indigenous and to hold a Medicare health care concession or pension card. Staff commented that patients are then usually deemed eligible.
Ms Yun made contact with UCW who confirmed that they are able to provide emergency financial payments in certain circumstances. Ongoing assistance is not guaranteed. Ms Yun was unsuccessful in finding any other body that may assist the respondent to finance his use of Antabuse.
Evidence on 11 January 2019
As a result of the need for further medical testing to ascertain whether it was safe for the respondent to use Antabuse, the matter was adjourned until 11 January 2019. At that hearing the court had the benefit of a medical report by Dr Sam Galahenage, consultant gastroenterologist and hepatologist at Fiona Stanley Hospital. Relevantly, Dr Galahenage said that despite an elevated Hepascore, subsequent testing indicated that the respondent had minimal or no liver fibrosis. Dr Galahenage said that there was no contraindication to Antabuse treatment and the respondent did not require anti‑viral treatment for chronic Hepatitis B infection. He suggested ongoing monitoring of the respondent's liver function every six months.
Ms Yun's oral evidence
Examination‑in‑chief
Ms Yun gave evidence at the hearing on 11 January 2019. She said that a pharmacist at the pharmacy which had offered to supervise the respondent dose of Antabuse had told her that they would check daily whether the respondent had taken it. Ms Yun did not know how they would do that. She confirmed that she was not aware of any other organisation that could or would be prepared to supervise the treatment.
As a result of the advice from Dr Galahenage the prison medical service had confirmed that the respondent was considered suitable to commence taking Antabuse in custody.
Ms Yun confirmed that COMU and/or the Department of Justice could not contact the pharmacy on weekends and public holidays to confirm that the respondent had been to the pharmacy and taken the Antabuse. She said that she also had concerns as to how long the pharmacy might be prepared to offer the service.
After further information was obtained from those instructing him, counsel for the State advised the court that the duty electronic monitoring officer could be tasked to check during a certain window of time on weekends and public holidays as to whether the respondent had attended in the proximity of the relevant pharmacy. If he had not done so the officer could contact the afterhours manager of Adult Community Corrections who could then decide what steps should be taken. The first step would probably be to try and contact the respondent. If it was not possible to contact him he or she would probably report the matter to the police. The afterhours manager could not be tasked to contact the pharmacy every weekend day and public holiday as their role is to respond to emergencies.
Cross‑examination
Ms Yun confirmed that despite the significant costs of keeping a DSO in custody and/or providing other services such as urinalysis testing in the community, the Department of Justice would not pay for or contribute to the cost of Antabuse for the respondent. She confirmed that if the respondent was released he was entitled to a one‑off crisis payment from Centrelink of about $200.
Ms Yun also agreed that if there was concern about the respondent compliance with Antabuse treatment on weekends and public holidays, he could be given directions not to leave his unit or not to attend public areas where alcohol was consumed or available during those times.
Issue - Will the respondent substantially comply with the standard conditions of a SO?
I am satisfied on the balance of probabilities that if the respondent was released on a SO he will substantially comply with the following standard conditions:
(1)report to a CCO as directed and advise the officer of his current name and address;
(2)report to and receive visits from a CCO as directed;
(3)notify a CCO of any change in his name, place of residence or place of employment;
(4)not leave or stay out of Western Australia without the permission of a CCO; and
(5)be subject to electronic monitoring under s 19A.
I have some reservations about finding that the respondent will not leave Western Australia. This is because he has a past history of escaping legal custody and leaving the State. However, his escape occurred 20 years ago. His history of serious offending also causes me to question whether he would leave the State without the permission of a CCO, but taking into account that he has remained in Western Australia it seems for the last 20 years (albeit a substantial period of that time was in custody), I am satisfied on the balance of probabilities that he will comply with that standard condition.
The respondent's history of generalised offending, serious sexual offending and breaches of his SOs make me pause before determining that he will comply with electronic monitoring. However, the standard condition in the Act s 19A appears to require compliance only with the physical requirements and the administration of electronic monitoring. Taking into account that the respondent has been released on a SO on three occasions subject to electronic monitoring and he has not tampered with the electronic monitoring equipment, I am satisfied on the balance of probabilities that he would be subject to electronic monitoring if released on a SO. It is a different question as to whether he would comply with the directions of a CCO as to the physical areas where he was permitted to travel.
I also have reservations about whether the respondent will report to a CCO as directed in the sense that he has been early or late for appointments on numerous occasions. However, he has substantially complied with his reporting obligations.
The more contentious standard conditions are whether if released on a SO the respondent will:
(1)be under the supervision of a CCO and comply with any reasonable direction of the CCO; and
(2)not commit a SSO.
The history which I have related indicates that whenever the respondent has been released on a SO he has been subject to directions from a CCO. In some respects he has complied with those directions. For example he seems to be fairly amenable to the supervision requirements of a SO, although he sometimes reports early or late for appointments. In other respects he has shown complete disregard for the directions of a CCO as to where he is permitted to go as well as complete disregard for other conditions of his SO.
A number of these failures have been serious and have significantly increased the risk of the respondent committing a SSO. They mean that in those particular instances, the SO has not ensured the protection of the community. I cite as examples:
(1)drinking alcohol on 4 ‑ 11 October 2016, 2 November 2017, 3 November 2017 and 16 May 2018;
(2)using cannabis on 4 ‑ 11 October 2016 and 11 ‑ 19 October 2016;
(3)consuming amphetamine and/or methamphetamine on 21 October 2016 and 9 ‑ 11 May 2018; and
(4)breaching a CCO's direction not to attend a particular park on 4 November 2017.
The most recent breach offences were committed about a week after the respondent was released on the respondent's SO. It is also of particular concern that at the time the police attended his home on 16 May 2018 the respondent had consumed alcohol and a woman was present in his home. Either the respondent was aware of the risk involved in his being under the influence of alcohol and being in the privacy of his home with a woman and he chose to run that risk or he did not have insight into how such a situation is a risky one for him. Either circumstance is a significant concern.
The respondent's complaints of feeling lonely and isolated whilst living in Perth are understandable. However, those reasons and others which have been proffered for the breach offences neither explain nor justify the offending. The breach offences occurred very soon after he was released and when he was having regular contact with various persons and bodies involved in his supervision. It is illogical to accept that he committed them because he was lonely and isolated mere days after his release on the SO. Even if he felt culturally isolated, the offences were committed when the respondent was well aware of his obligations under his SO and aware that the court had the power to impose a CDO for breaches of it. Despite the deterrent effect of this knowledge, electronic monitoring and the stringent conditions of a SO, he committed the breach offences within days of his release. The community cannot be protected from the respondent's risk of committing a SSO if he cannot be relied to substantially comply with the standard and other conditions of a SO even for a week after his release.
The respondent's propensity to commit SSOs whilst under the influence of alcohol led me to query with the parties whether the respondent would be a suitable candidate for treatment with Antabuse to deter him from consuming alcohol.
The evidence which I subsequently received is positive in many respects. It confirms that subject to the respondent commencing treatment and having his health monitored, he is a suitable candidate for the treatment, he is willing to take the treatment and if it is taken according to directions it would significantly deter him from consuming alcohol. On the other hand, there are issues with the treatment. These are:
(1)although the treatment can be supervised by a pharmacist each day, like other orally consumed medication it would be possible for the respondent to avoid consuming the medication, for example, by secreting it in his mouth whilst he was in the pharmacy;
(2)the Department of Justice is unable to confirm on weekends and public holidays that the respondent has attended the pharmacy and taken the medication;
(3)the best that can be done on weekends and public holidays is for the COMU electronic monitoring unit to monitor whether the respondent attends the geographical area of the pharmacy within a particular time frame and to report to a CCO if he does not do so;
(4)Dr Wynn Owen has reservations about ordering an aversion therapy such as Antabuse as part of a SO as it interferes with a doctor/patient relationship and raises the issue whether the respondent is truly voluntarily taking the medication or only agreeing to take it so as to be released; and
(5)Antabuse will not prevent the respondent from consuming other drugs such as amphetamine/methamphetamine and inhalants which would also increase his risk of committing a SSO.
Taking all of these matters into account, I am not satisfied that it would be appropriate for me to release the respondent on conditions that he complies with Antabuse treatment and neither am I satisfied that the respondent would comply with Antabuse treatment. This is because it is clear that on each occasion he has been released on a SO, he has consumed alcohol despite conditions prohibiting him from doing so. Once the respondent realised how ill alcohol made him whilst he was taking Antabuse it is likely that he would try and avoid the Antabuse treatment.
The other complicating factor is that alcohol is not the only substance available to the respondent in the community which increases his chance of committing a SSO. Whilst the Antabuse would assist in ensuring that the respondent substantially complied with directions in relation to alcohol use, it does nothing to satisfy me that the respondent would substantially comply with the directions of a CCO or the conditions of a SO which are designed to stop him from consuming other substances which increase his risk of committing a SSO or prevent him from being in high risk situations.
As I am not satisfied on the balance of probabilities that the respondent would comply with those sorts of directions and conditions and given that those directions and conditions are imposed so as to prevent the respondent from committing a SSO, I reluctantly conclude that I am not satisfied on the balance of probabilities that the respondent would substantially comply with a condition of a SO that he not commit a SSO.
In coming to this conclusion I have taken into account in a positive way that the respondent is generally compliant with supervision requirements, he is gaining a better understanding of the concept of consent through counselling with Mr Summerton, there is suitable accommodation available for him, the Indigenous Mentoring Program would be available for the respondent to access upon release into the community[62] and also that the respondent's brother has said that he will move to Perth to live when his brother is released. Despite these positive circumstances, I am not satisfied that the respondent will substantially comply with the standard conditions of a SO.
[62] During his most recent period in the community the respondent did not cooperate with attempts to connect him to a mentor.
The respondent submitted that despite him breaching directions and conditions of his SOs he has not committed a SSO. This is in the context where prior to being subject to orders under the Act the respondent had on some occasions committed SSOs soon after his release from prison. I acknowledge that the respondent has not committed a SSO whilst on a SO. That is a positive matter. However, taking all of the respondent's history and his behaviour whilst on the SOs into account I am not satisfied that he would substantially comply with such a condition.
Issue - Would an order amending, extending or affirming the respondent's SO ensure the adequate protection of the community?
The respondent has a long record of repeated serious sexual offending and generalised criminal offending. His serious sexual offending has usually been accompanied by violence and persistence. His offending has always been associated with alcohol or other substance/inhalant abuse.
The respondent has undergone some rehabilitation courses which have probably decreased his risk of serious sexual offending to a limited extent. However, there is no doubt that left to his own devices in the community there would remain an unacceptable risk that he would commit a SSO. That is, in the terms of the Act he remains a serious danger to the community.
At various times between 2016 and 2018 the Chief Justice was of the opinion that if the respondent was released on a strict SO the community could be adequately protected from the risk posed by the respondent. In my opinion the performance of the respondent on his SOs up to the present has shown that this view is not valid at this point in time. I rely on the following matters:
(1)The Chief Justice initially came to that view in partial reliance on the fact that the respondent had the support of a partner. Regrettably, the respondent's partner has died and the respondent does not have a partner who could provide him with companionship and a stable consensual sexual relationship.
(2)If the respondent was released into the community it would have to be to live in the Perth suburban area because of the lack of support services in regional Western Australia. The respondent currently has no family or friends in the Perth suburban area.
(3)In order to socialise with people with whom he feels comfortable the respondent chooses to socialise with people who encourage him to drink alcohol and/or use illicit drugs. He is apparently unable or unwilling to resist their encouragement to do so even if it is in breach of the conditions of his SO.
(4)The respondent's risk of committing a SSO increases significantly when he breaches the conditions of his SO by drinking alcohol and/or using illicit substances. All attempts to stop him from doing so to date have failed. For the reasons given above I have concluded that making Antabuse a condition of a SO would not be appropriate.
(5)The Chief Justice was of the opinion that the risk of the respondent committing a SSO very soon after released had diminished. In light of the speed at which the respondent committed the breach offences after his release I do not accept this view to be correct. It is true that the respondent committed his second SSO the day after his release from prison and he has not offended in such a way on a SO. However that was only one occasion of offending. He committed other SSOs after longer periods in the community.
(6)In May 2018 the Chief Justice found that the then breach offences occurred because of the difficulties which the respondent had in adjusting to life in Perth, loneliness and cultural isolation. The first current breach offence occurred two to four days after the respondent's SO came into effect and the second breach offence occurred about nine days after it came into effect. The breach offences occurred while Ms Yun and others supervising the respondent were making efforts to ensure that the respondent was not overwhelmed by stress and while he was receiving considerable support from UCW. I do not accept that a build-up of the same stressors led to the breach offences. To this extent I do not accept the opinions of the witnesses who have proffered this as the reason for the breach offences.
(7)I do not accept that the resolution of issues of loneliness and cultural isolation will substantially reduce the respondent's risk of serious sexual offending or his breaches of a SO by drinking alcohol and consuming illicit substances. The reality is that the respondent's serious sexual offending and alcohol/substance abuse has occurred in regional Western Australia where the respondent was not lonely or culturally isolated. There must be other causes of his offending.
(8)The above issues together with others identified, such as unresolved grief and pressure from family to return to Warakurna, cannot currently be resolved as there is not a viable option of allowing the respondent to live anywhere other than Perth.
(9)The respondent told Dr Wynn Owen that he committed the breach offences to improve his mood and told Ms Wilson‑Brown that he used amphetamine because he thought that he was already in breach of the SO after having been given a warning for being late to an appointment. If these explanations reflect the reasons for his breach offences they indicate that the respondent cannot be relied on to comply with the conditions of a SO if it suits him not to do so. The explanations also show a lack of insight into his risk taking behaviour and impulsiveness which is incompatible with the protection of the community.
(10)The explanation regarding using drugs having received a warning letter is inconsistent with the facts that he received the warning letter on 14 May 2018 but had used the amphetamine/methamphetamine by 11 May 2018.
(11)The respondent has given other excuses for his breach offences. For example, in referring to the deaths of family members he said that he had too much on his mind. There is no evidence before me to indicate that these deaths occurred close in time to the breach offences in May 2018 and that he did not have enough meaningful activity even though he also said that he had too many appointments. It is my judgment that the respondent is to an extent making up excuses for his breach offences just like he has sought to minimise his more serious offending.
(12)Dr Wynn Owen is of the opinion that the respondent's risk of serious sexual offending can be adequately mitigated by supervision, monitoring and support whilst he is subject to a SO. For the reasons I have given above I am not satisfied that these supports will cause the respondent to comply with the conditions of a SO or adequately protect the community. In any event there is a fundamental problem. It is that during the period he was last in the community the respondent showed a reduced ability or interest in complying with the conditions of SO relating to the prohibition on drinking alcohol and using illicit substances. He also showed that he was prepared to engage in the high risk behaviour of having a woman in the privacy of his home when he was under the influence of alcohol. There is no utility in releasing the respondent on a SO in the almost certain knowledge that he will breach it soon after his release. He also did not take steps to help himself such as by engaging with a mentor or contacting Wungening about substance abuse counselling. For the community to be adequately protected by a SO the court must have at least a reasonable level of confidence that a DSO will comply with conditions and will make reasonable efforts to do so.
(13)Dr Wynn Owen said that an encouraging, interactive, supportive but assertive approach to supervision is required. I do not know what changes to the respondent's supervision regime could occur which would better meet these requirements. It seems to me that all reasonable steps have been taken by those supervising the respondent to assist him to comply with the conditions of a SO whilst at the same time ensuring the protection of the community.
Having come to these conclusions the Act prohibits me from amending, extending or affirming the respondent's SO. The only order I can make is a CDO.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
Associate to the Honourable Justice Jenkins5 MARCH 2019
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