The State of Western Australia v Yorkshire [No 2]
[2021] WASC 261
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- YORKSHIRE [No 2] [2021] WASC 261
CORAM: ALLANSON J
HEARD: 16, 22 DECEMBER 2020, 24 MAY & 26 JULY 2021
DELIVERED : 2 AUGUST 2021
FILE NO/S: SO 7 of 2020
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
SIMON RODERICK YORKSHIRE
Respondent
Catchwords:
High risk serious offender - where respondent convicted of serious sexual offences - where respondent has unmet treatment needs - whether adequate protection of community can be ensured by conditional release subject to supervision
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Result:
Supervision order made
Category: B
Representation:
Counsel:
| Applicant | : | S O'Sullivan & F Clare |
| Respondent | : | K Farley SC & N Sinton |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Legal Aid WA |
Case(s) referred to in decision(s):
Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
GBT v The State of Western Australia [2019] WASCA 40
Italiano v The State of Western Australia [2009] WASCA 116
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
The State of Western Australia v Corbett [No 5] [2017] WASC 115
The State of Western Australia v Yorkshire [2020] WASC 295
Woods v Director of Public Prosecutions (WA) [2008] WASCA 188; (2008) 38 WAR 217
ALLANSON J:
Introduction
The respondent, Simon Roderick Yorkshire, has been convicted of serious sexual offending on four occasions. The victims were two children, aged 15 and 16, and two adults. The offending was violent.
But for these proceedings, Mr Yorkshire would have been entitled to be released from prison, on the completion of a sentence of imprisonment, on 2 September 2020. In this application, the State contends that it is necessary to make a restriction order under the High Risk Serious Offenders Act 2020 (WA) to ensure adequate protection of the community against an unacceptable risk that Mr Yorkshire will commit a serious offence on his release.
The first issue is whether it is necessary to make a restriction order. The second issue, should the court be satisfied that a restriction order is necessary, is whether Mr Yorkshire must continue to be detained in custody, or whether the adequate protection of the community can be ensured by release subject to a supervision order which imposes conditions on his liberty.
Procedural history
On 3 July 2020, the State of Western Australia commenced proceedings against Mr Yorkshire pursuant to the Dangerous Sexual Offenders Act 2006 (WA).
On 14 August 2020, McGrath J ordered that an application for a Division 2 order, pursuant to s 17(1) of the Dangerous Sexual Offenders Act, be heard on 16 December 2020.[1] His Honour ordered that Mr Yorkshire undergo examination by two experts for the purpose of reports being prepared to be used on the hearing of the application.
[1] See The State of Western Australia v Yorkshire [2020] WASC 295.
Mr Yorkshire was ordered to be detained in custody until the State's application was determined.
The application commenced under the Dangerous Sexual Offenders Act continues as an application for a restriction order pursuant to pt 4 of the High Risk Serious Offenders Act.[2]
[2] See High Risk Serious Offenders Act, s 123, s124(1).
In the following reasons, unless specified otherwise, references to legislation are to the provisions of the High Risk Serious Offenders Act.
Restriction Orders
The court must make a restriction order in relation to Mr Yorkshire if it finds that it is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence.[3] A restriction order may be either a continuing detention order or supervision order. The court cannot make a supervision order, and therefore must make a detention order, unless it is satisfied, on the balance of probabilities, that Mr Yorkshire will substantially comply with the standard conditions of a supervision order. The onus of proving that he will substantially comply is on Mr Yorkshire.[4]
[3] Section 7(1), s 48.
[4] Section 29(1) and (2).
In deciding whether to make a continuing detention order or a supervision order, 'the paramount consideration is to be the need to ensure adequate protection of the community'.[5]
[5] Section 48(2).
The court must have regard to the matters set out in s 7(3):
(a) any report prepared under s 74 for the hearing of the application and the extent to which Mr Yorkshire cooperated in the examination required by that section;
(b) any other medical, psychiatric, psychological, or other assessment relating to Mr Yorkshire;
(c) information indicating whether or not Mr Yorkshire has a propensity to commit serious offences in the future;
(d) whether or not there is any pattern of offending behaviour by Mr Yorkshire;
(e) any efforts by Mr Yorkshire to address the cause or causes of his offending behaviour, including whether he has participated in any rehabilitation program;
(f) whether or not Mr Yorkshire's participation in any rehabilitation program has had a positive effect on him;
(g) Mr Yorkshire's antecedents and criminal record;
(h) the risk that, if he were not subject to a restriction order, Mr Yorkshire would commit a serious offence;
(i) the need to protect members of the community from that risk;
(j) any other relevant matter.
The matters set out in paragraphs (h) and (i) are conclusions or findings based on s 7(3)(a) ‑ (g) and (j).
The term 'serious offence' is defined in s 5. Relevantly to this application, it includes an offence specified in sch 1, div 1. Serious offences include the sexual offences that were the subject of the Dangerous Sexual Offenders Act, but are not confined to sexual offences.
In an application for a restriction order, the court must hear admissible evidence called by the State and, if an offender elects to give or call evidence, that evidence.[6] The rules of evidence apply, but are modified to permit the court to receive in evidence:
(a) any document relevant to the antecedents or criminal record of the offender; or
(b) anything relevant contained in the official transcript of any relevant proceeding against the offender; or
(c) any relevant material that was tendered to the court, or that informed the court, in a relevant proceeding against the offender; or
(d) any relevant material of the kind mentioned in s 7(3) relating to the offender.[7]
[6] Section 84(2).
[7] Section 84(5).
'Relevant proceeding' is defined in s 84(1) as a judicial proceeding for a serious offence, or another offence the court considers relevant. Because of the circumstances in which they were committed, the information relating to all sexual offences committed by Mr Yorkshire, including the two indecent assaults that were not serious offences under the Act, is relevant in this application. The proceedings in relation to those offences are relevant proceedings.
Antecedents and criminal record
Mr Yorkshire's antecedents and criminal record inform the consideration of the other relevant factors.
Mr Yorkshire is a 54‑year‑old Aboriginal man. He had a highly dysfunctional childhood. In the first two years of his life, Mr Yorkshire was admitted to hospital on seven occasions and spent 180 days in hospital due to starvation, malnutrition, dehydration, chest infections and bronchitis. In late February 1969, when he was aged two, he was removed from his parents and placed in foster care. In 1973, Mr Yorkshire was removed from foster care and taken to Marribank Mission. While there, he suffered abuse for which he received an ex gratia payment in 2009. From 1978 he was transferred to the McCall Centre in Cottesloe, and later that year to Sister Kate's Children's Home where he stayed until he was 18. Mr Yorkshire then returned to live with his foster parents, but the relationship deteriorated and he was asked to leave.[8]
[8] Book of Materials, 860 - 861.
Mr Yorkshire's criminal record begins in the year he turned 18, with minor offending.
For most of his adult life, Mr Yorkshire has been homeless, transient, or in prison. He has been imprisoned on nine occasions.[9]
[9] Ms Hasson, in her report, referred to Mr Yorkshire being imprisoned on 13 occasions, which is not consistent with the criminal record in the Book of Materials.
Mr Yorkshire has a limited work history and has had difficulty in maintaining employment. He was last employed in the late 90s or early 2000s.
Mr Yorkshire has been convicted of sexual offending in 1986, 1990, 2007 and 2013. At the time of the hearing before McGrath J, he was serving a sentence of imprisonment for 8 years, imposed in the District Court of Western Australia on 26 July 2013.
The 1986 offence
On 1 September 1986, Mr Yorkshire was sentenced to immediate imprisonment for 2 years, without eligibility for parole, for an offence of indecent assault.
The offence was committed on 23 April 1986. Mr Yorkshire was then 19.
The victim was an adult street worker employed by the City of Perth to assist members of the community. She had known Mr Yorkshire for a short time through her work.
Mr Yorkshire led the victim to an alleyway where he told her that he wanted to have sex with her. He touched her breasts and forced her to masturbate him. Mr Yorkshire prevented the victim from leaving. The offending ceased when the victim was able to break free.
The 1990 offence
On 7 December 1990, Mr Yorkshire was sentenced in the Supreme Court to immediate imprisonment for 4 years and 2 months, without eligibility for parole, for the offence of aggravated sexual assault against a female under the age of 16 years. The offence is a serious offence under the High Risk Serious Offenders Act.
Mr Yorkshire forced the victim to accompany him, pushed the victim to the ground and asked her to have sex with him. The victim refused, but Mr Yorkshire continued and penetrated her vagina with his penis. In this incident, Mr Yorkshire prevented the victim from leaving by force or threat.
Mr Yorkshire was then 23. The victim was 15. She was an acquaintance of Mr Yorkshire.
The 2007 offence
On 27 March 2008, Mr Yorkshire was sentenced in the Magistrates Court to immediate term of imprisonment for 18 months for an offence of indecent assault. Initially, on 21 May 2007, the court made a Pre-Sentence Order. Mr Yorkshire did not comply with the requirements of the order and was sentenced to imprisonment.
Mr Yorkshire and the victim were drinking with a group of the victim's friends. He became intoxicated. When the victim moved away from the group, Mr Yorkshire approached her and pulled down her tracksuit bottoms to her thighs. He pinned the victim to the ground and exposed his penis. The offending ceased when Mr Yorkshire was disturbed by two security officers.
The victim was 16. Mr Yorkshire was then 40.
The 2012 offences
On 26 July 2013, Mr Yorkshire was sentenced to imprisonment for a total effective term of 8 years for two offences of indecent assault, two offences of sexual penetration without consent, one offence of deprivation of liberty, one offence of threatening to unlawfully harm, and one offence of assault causing bodily harm. The offences of sexual penetration and deprivation of liberty are serious offences under the Act.
The offences were committed in one protracted incident between 15 and 16 August 2012, against the one victim. Mr Yorkshire was then 45, and the victim was 41.
Mr Yorkshire met the victim that night when she joined a group he was drinking with. She went to his house with him, where the offences occurred. The offending conduct included penetration of the victim's mouth with his penis, and penetration of her vagina with his finger.
The degree of violence in this incident was a considerable escalation from earlier offences. Mr Yorkshire bit the victim three times on her breast. He also threatened her with kitchen knives, before punching her to the face and head five times.
Other relevant offending
Mr Yorkshire has a lengthy criminal history. His offending, other than that set out above, has been relatively minor but persistent. The only serious offences, as defined, are those to which I have referred in the outline of his sexual offending.
Evidence
The State filed a Book of Materials, which included all evidence that was before the experts who provided reports.
The State relies on matters going back 34 years. A document or report may be admissible for the purposes of proceedings under the Act without being acceptable and cogent evidence for the purposes of s 7(1). Where opinions are expressed, the qualifications or expertise of the author cannot be assumed. Further, the question for the court is whether it is necessary to protect the community against a risk Mr Yorkshire now presents. Where a document or report was prepared many years ago, further evidence may be required to relate it to any present level of risk.
Mr Yorkshire was examined by Dr Gosia Wojnarowska, psychiatrist, and Ms Julie Hasson, psychologist, both of whom prepared reports pursuant to s 74 and gave oral evidence. The State called two other witnesses:
(1)Dr Lynley Poli, a psychologist employed by the Department of Justice, who prepared a Management Plan; and
(2)Ms Emma Cashmore, an officer of Community Corrections who prepared a series of Community Supervision Assessments.
The s 74 reports
By s 74:
(1)A qualified expert providing a report in relation to a subject under this section must -
(a)examine the subject; and
(b)prepare an independent report.
(2)The report must indicate -
(a)the reporter's assessment of the level of the risk that, without a restriction order, the subject will commit a serious offence; and
(b)the reasons for the reporter's assessment.
(3)The reporter must have regard to any report or information given under section 76(1).
(4)The reporter must prepare the report even if the subject does not cooperate, or does not cooperate fully, in the examination.
The Act does not require the court to accept or give any particular weight to the report of qualified experts; the court alone is responsible for deciding whether or not the offender is a serious danger to the community and, if so, whether to make a continuing detention order or a supervision order.[10] But the s 74 reports are often (as in this case) the only contemporary evidence directly addressing the level of risk.
[10] GBT v The State of Western Australia [2019] WASCA 40 [97]; Woods vDirector of Public Prosecutions(WA) [2008] WASCA 188; (2008) 38 WAR 217 [39].
Further, the Act gives an important role to psychiatric and psychological opinion. Parliament has legislated on the basis that the specified professionals have the expertise to examine an offender and assess the level of risk that offender presents if not subject to restriction. The experts are expressly required to evaluate and express their opinions on the degree of risk.[11]
[11] Italiano v The State of Western Australia [2009] WASCA 116 [56]; Woods v Director of Public Prosecutions (WA) [38] - [39]. The statutory scheme of the High Risk Serious Offenders Act does not relevantly differ from the earlier Act considered in those cases.
Counsel for Mr Yorkshire cross examined both Dr Wojnarowska and Ms Hasson. Their opinions as to Mr Yorkshire's level of risk, and whether it is necessary to make a restriction order to ensure adequate protection of the community, were not challenged. The defence case was directed to whether Mr Yorkshire's risk of further serious offending could be managed within the community, subject to a supervision order.
Dr Wojnarowska
Dr Wojnarowska is a registered medical practitioner with a specialty in psychiatry and a subspecialty in Forensic & Child and Adolescent Psychiatry. She has 14 years' experience in forensic psychiatry and regularly makes assessments and gives evidence in proceedings of this nature.
Dr Wojnarowska interviewed Mr Yorkshire, in prison, on 27 October and 22 November 2020. She was provided with the material that was before the court regarding Mr Yorkshire's antecedents and criminal record and the reports from other assessments carried out while Mr Yorkshire has been in prison.
Dr Wojnarowska carried out a risk assessment, using both an actuarial tool, Static-99R, and structured clinical guidelines.
The assessment using Static‑99R, on its own, was of little evidentiary value. Static-99R creates a statistical profile, based on a limited number of factors. It does not measure all relevant risk factors and a person's risk of recidivism may be higher or lower than that indicated.[12]
[12] Book of Materials, 896.
Further, Dr Wojnarowska acknowledged 'issues' associated with using this tool for offenders who are Aboriginal persons. Static-99R has not been validated against Aboriginal and Torres Strait Islander peoples. In local research regarding applicability to Aboriginal peoples in Western Australia, Static‑99R appeared to reliably estimate likelihood of violent re-offending but was less reliable in relation to sexual re‑offending.[13]
[13] Book of Materials, 897.
The Static-99 'score' places Mr Yorkshire in a group with above average risk (21.2% to 18%) of being charged for re-offending sexually within five years.[14] While that is a higher risk than the general population, the 'score' does not assist the court in assessing the likelihood that Mr Yorkshire would be one of the group who are charged with further offences, or one of the majority who would not. In considering whether a restriction order in relation to a particular respondent is necessary for the adequate protection of the community, and whether restrictions in the community would mitigate that risk, some way of determining the risk on a more individual basis is needed.
[14] Book of Materials, 897.
Dr Wojnarowska also based her opinion on an assessment using the Risk for Sexual Violence Protocol (RSVP). Her clinical assessment of Mr Yorkshire's risk of re-offending - guided by the RSVP factors - was of greater assistance.
The RSVP structures clinical assessment by reference to factors divided into five groups: sexual violence history (including chronicity of violence); psychological domain; mental disorder; social adjustment; and manageability. Within each group there are multiple factors which are recorded as present, partially present, or not present. Some of those factors are causal of sexual violence, others were described as markers for the presence of other risk factors.[15]
[15] Book of Materials, 898 - 900.
Dr Wojnarowska referred specifically to several factors. Mr Yorkshire has an antisocial personality style, with impulsivity, sense of entitlement and high sexual drive intensified by intoxication. She referred to exposure to 'destabilisers', including the presence of people drinking alcohol, and to Mr Yorkshire's limited social and emotional support.[16]
[16] Book of Materials, 901.
Dr Wojnarowska did not find the presence of sexual deviance, such as paedophilia, which she described as the most important driver in the risk of re-offending.
Her clinical judgment, however, was that Mr Yorkshire is at a high risk of reoffending if not subject to restriction, with his future offences likely to be of a sexual nature against a vulnerable female.
In relation to the management of risk, Dr Wojnarowska said that further incarceration was not going to decrease his risk of re‑offending.[17] Some offenders would only benefit - or would receive greater benefit - from individual counselling rather than programmatic treatment. Dr Wojnarowska said that it was unclear to what extent Mr Yorkshire would benefit with psychological counselling, 'but he would certainly benefit from ongoing education and engagement with someone he trusts and who he respects'.[18]
[17] ts 69.
[18] ts 24.
In Dr Wojnarowska's opinion, Mr Yorkshire's risk would be manageable were he to abstain from alcohol abuse.[19] He had been able to remain abstinent in the structured environment of the prison. There were also some protective factors against further abuse, including his understanding that his diabetes puts him at risk should he start drinking again. But, in Dr Wojnarowska's opinion, strict conditions such as those proposed, for a period of not less than 10 years, were the only option to keep the community safe.[20] She said:
Well, in my view, Mr Yorkshire is a psychologically damaged individual. And the recovery is really a very long process in his case. And the aim of the treatment would be to transfer him to the community where he could function without any supervision in the end. In my view, this is unlikely to take place in a short period of time. He - he was highly dysfunctional for all his life until he was incarcerated recent - well, recently in relation to the - to his latest offence where he has been provided with structure, initially employment and programmatic interventions. So the longer a person leads a highly dysfunctional life with his history, trauma and psychological damage related to trauma, the longer it takes to recover. It's not going to happen in a short period of time. He may not like it but, in my opinion, that's how long it will take to transition him as an independently functioning individual.[21]
[19] ts 62.
[20] ts 26, 36.
[21] ts 64.
In Dr Wojnarowska's opinion, it would be preferable for Mr Yorkshire to receive individual counselling, preferably from a male counsellor.[22]
Ms Hasson
[22] ts 57.
Ms Hasson is a 'qualified psychologist' as defined in the Act. She is a former employee of the Department of Corrections, and regularly gives evidence in proceedings under the Act.
Ms Hasson interviewed Mr Yorkshire on 11 and 17 November 2020, for a total of about five hours. Dr Poli also interviewed Mr Yorkshire on the same days for about three hours and 10 minutes.[23] It appears that was the only practical way it could be organised with the prison.
[23] Book of Materials, 845 and 859.
Ms Hasson was provided with the Book of Materials for expert witnesses and had access to documents, provided to her by Mr Yorkshire, regarding his time in the care of the Child Welfare Department.
Ms Hasson also had regard to telephone discussions with Ms Cashmore and Dr Poli. She spoke to Dr Poli for a total of 105 minutes on 13 and 17 November 2020. Ms Hasson's report does not set out what was said in those discussions and whether or how they affected her assessment. She was not cross examined on those discussions.
Ms Hasson conducted a risk assessment using the Static‑99R and RSVP. Counsel for Mr Yorkshire did not challenge Ms Hasson's findings based on the application of those instruments, or her conclusion that Mr Yorkshire has a well above average or high risk of sexually reoffending without ongoing intervention, supervision, support and monitoring.
There was one aspect in which Ms Hasson differed significantly from Dr Wojnarowska. Dr Wojnarowska did not diagnose sexual deviance - an important finding where sexual deviance is regarded as the most important driver in the risk of sexual re-offending. Ms Hasson agreed that she would not find sexual deviance present by reference to the criteria for diagnosing that condition in the Diagnostic and Statistical Manual of Mental Disorders (DSM‑5). But she said that, for the purposes of RSVP, sexual deviance has a different definition. Ms Hasson said for the purposes of RSVP, 'sexual deviance is about the non-consenting sexual act'.[24] It appeared to be more descriptive of whether a person had repeated conduct that the RSVP manual categorised as of a 'deviant sexual nature'.[25] Her evidence did not explain how such a definition guides a clinical judgment about risk or management of risk.
[24] ts 108.
[25] ts 108 - 109.
Ms Hasson expressed the view that Mr Yorkshire's offending occurs in the context of disinhibition related to alcohol and other substance abuse. His beliefs, including his views regarding sexual entitlement and attributing blame to the victim, are significant maintaining factors. He has limited community support and, in the past, has been unable to comply with supervision conditions and reporting obligations. Although Mr Yorkshire has participated in all available programs, he has made limited progress.[26]
[26] Book of Materials, 883.
Ms Hasson commented specifically on the ability of Mr Yorkshire to manage risk factors, including attitudes supportive of sexual assault, alcohol and substance abuse, and a lack of community support.[27] She commented that he did not appear to understand the nature and type of restrictions that would be in place were he to be released under a supervision order.[28]
[27] Book of Materials, 883.
[28] ts 93 - 94.
Ms Hasson made a series of recommendations but, perhaps because her engagement with Mr Yorkshire was restricted, those recommendations were largely limited to unhelpful generalisations: Mr Yorkshire should develop a 'fulfilling lifestyle with healthy intimate and non-intimate relationships'; seek 'meaningful employment'; identify and engage in appropriate hobbies and leisure pursuits; establish pro‑social friendships; and his psychological and emotional wellbeing should be monitored and treated.[29]
[29] Book of Materials, 884.
Ms Hasson also expressed the opinion that individual counselling may be more effective for Mr Yorkshire.[30]
[30] ts 74 - 75.
It may be an important issue how counselling or treatment is provided, and by whom. Dr Wojnarowska reported that Mr Yorkshire lacks trust towards others, 'specifically Caucasian women'.[31] Ms Hasson commented on the issue of disrespect towards women, but not lack of trust.[32] She said that until she heard Dr Wojnarowska's evidence 'it didn't enter my head to suggest a male or an indigenous person' as the treating psychologist.[33]
[31] Book of Materials, 901. It is unfortunate that all four witnesses involved in his assessment are members of that group.
[32] ts 79.
[33] ts 125 - 126.
Because individual treatment is only provided to an offender after the court has made a restriction order, the court could not receive evidence from anyone involved in treating or counselling Mr Yorkshire and who could comment specifically on his treatment or other needs.
Other medical, psychiatric, psychological, or other assessment
In November 2000, Mr Yorkshire participated in a two-day workshop at Karnet Prison Farm and was reported as appearing to recognise the negative effects of his substance use on his life.[34]
[34] Book of Materials, 787.
In October 2001, Mr Yorkshire completed a group program on substance use.[35]
[35] Book of Materials, 788 - 790.
Following sentencing in 2013, Mr Yorkshire was assessed for inclusion in a High Intensity Sex Offending Treatment Program.[36] Assessments for violent offending and substance use offending were done at the same time.[37]
[36] Book of Materials, 772. The details of the 'current sex offence' set out in the report and recommendation were those of the offence in 2007, not the offences for which he was then imprisoned.
[37] Book of Materials, 773 and 778.
A Cognitive Skills Assessment, done in August 2013, recorded Mr Yorkshire expressing the view that he was in prison because of a white woman, and did not deserve to be there. His attribution of blame to the victims of his offences was an important element in the psychiatric and psychological assessments.[38]
Programs undertaken in current term of imprisonment
[38] Book of Materials, 783.
Mr Yorkshire participated in various programs during his current term of imprisonment, and reports by the facilitators of those programs were received as part of the Book of Materials. The reports are admissible pursuant to s 7(3) of the High Risk Serious Offenders Act. While they are admissible, it must be recognised that they were not prepared for the purpose of use in legal proceedings. None of the authors of the reports was called to give oral evidence.
In 2014, Mr Yorkshire participated in a Think First Cognitive Skills Program. In comments on his participation, he was reported as being able to complete work when taken through it with an Aboriginal facilitator. Mr Yorkshire was reported as having stated, 'white girls cry rape, Noongar girls wouldn't do that'.[39] It is not clear whether that comment was made in the course of the program, or is a reference to earlier comments recorded in the Cognitive Skills Assessment. It was also reported that Mr Yorkshire was able to identify potentially useful ideas relating to his lifestyle, such as reducing alcohol consumption, but required intensive one-on-one facilitated direction and did not consider those matters were linked to his offending.[40]
[39] Book of Materials, 792.
[40] Book of Materials, 793.
As Mr Yorkshire denied his offending, no risk management plan was available, and 'treatment gains in line with the identified treatment needs cannot be recognised'. [41]
[41] Book of Materials, 801.
In 2016, Mr Yorkshire participated in a Violent Offending Treatment Program. The report on the program noted that, while he was a reserved group member, his level of engagement increased in individual sessions with facilitators where he spoke openly and without restriction. The reporters suggested that the method and structure of the group program did not suit Mr Yorkshire culturally.[42]
[42] Book of Materials, 794.
In 2017, Mr Yorkshire participated in an Intensive Sex Offender Treatment Program at Bunbury Regional Prison. The program was a group program.
In the completion report, the facilitators reported that Mr Yorkshire stated that, for three months before the most recent offences, he was drunk every day, and his entire life revolved around drinking.
Mr Yorkshire was reported as having 'attitudes of sexual entitlement' - an opinion that has been repeatedly expressed about him in the many assessments he has undergone. Mr Yorkshire was again described as having adversarial sexual beliefs, including beliefs that women are deceitful, and that men should control and dominate women.[43] From the reports alone, I cannot determine whether these findings were independently arrived by each author.
[43] Book of Materials 806.
At the conclusion of the program, the facilitators reported treatment gains, but that 'rehearsal of new skills will be necessary for lasting change to be effected.'[44] The facilitators reported that Mr Yorkshire may benefit from further support in the area of self‑esteem, coping (substance abuse), emotional regulation and childhood trauma.
[44] Book of Materials, 809.
The last of the programs Mr Yorkshire undertook was a Pathways Program between October 2017 and February 2018. During the program he continued to minimise his offending, and maintained that the victim of his latest offences had put him in prison, had exaggerated her suffering, and was profiting from the compensation system for victims of crime.[45] At the conclusion of the program, however, Mr Yorkshire was reported as developing victim empathy and recognising that what he had done was wrong.[46]
[45] Book of Materials, 821 - 822.
[46] Book of Materials, 822 - 823.
In summary, Mr Yorkshire has participated in programs during his terms of imprisonment, but only limited gains from those programs are reported. The comments from the programs support the conclusion that Mr Yorkshire is more likely to benefit from a one-on-one treatment, rather than a group program.
In 2018, Mr Yorkshire was assessed by Ms Wendy Wager, Counselling & Clinical Psychologist. Her report includes material up to 7 December 2018. The report was prepared for the purposes of use within the Department of Justice, for the treatment and management of Mr Yorkshire, and for use by the Prisoner Review Board. It was not prepared for use in court proceedings subject to rules of evidence.
Ms Wager reported that she administered the Millon Clinical Multiaxial Inventory, 3rd Edition (MCMI III) to assist with identification of personality traits and clinical features. While noting that the comparison data had not been validated for use with Aboriginal and Torres Strait Islander peoples, Ms Wager said it was used in Mr Yorkshire's case 'because of his urban background and attendance in mainstream schooling'.[47]
[47] Book of Materials, 814.
While Ms Wager said that the MCMI-III test was interpreted with consideration of possible bias through cultural influences, I am not satisfied that I can accept her opinions with any confidence. Ms Wager did not set out (and may not have had) any detailed account of Mr Yorkshire's background or schooling. Other evidence before the court is that, from the age of 6½ years, Mr Yorkshire's life included many years in various missions, rather than 'mainstream schooling'.
Ms Wager refers also to her clinical observations but does not set out what they were.
The evidence of an expert should identify the facts assumed or observed, and explain how the field of specialised knowledge in which the witness is expert, and on which the opinion is wholly or substantially based, applies to those facts so as to produce the opinion propounded.[48] Ms Wager's report is one of the reports referred to in s 7(3)(b) of the High Risk Serious Offenders Act, and is, accordingly, admissible. But for the evidentiary provisions of the Act, it would not have been received.
[48] See Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, [35] - [37]; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 [85].
Admissibility and weight are not the same thing. I cannot assess what weight can be given to Ms Wager's opinion based on the MCMI‑III without knowing how it was applied, and what allowance and interpretation was made for Mr Yorkshire's particular background. Similarly, I cannot assess what weight can be given to her clinical observations without knowing what they were.
Ms Wager also expressed a risk assessment, using the Violent Risk Scale - Sex Offender Version.[49] She stated that the instrument 'is considered both gender and race neutral', but does not explain how it is applied and how the risk category was arrived at. The report may have been appropriate for its purpose. It is of little assistance in these proceedings.
The Community Supervision Assessment
[49] Book of Materials, 816.
A report on community supervision was prepared, and its author, Ms Cashmore, appeared as a witness at trial. Ms Cashmore updated her assessment with further reports, most recently on 14 June 2021.
A critical factor is housing. If the court finds a person is a high risk serious offender, it must make a restriction order - either for continuing detention or release under supervision.[50] If the court cannot make a supervision order, it must order continuing detention. The lack of suitable accommodation has the potential to prolong indefinitely the incarceration of a person who has served his sentence, whose risk of re‑offending could properly be managed in the community, and who would otherwise be entitled to release.
[50] Section 48(1).
Simply providing a house for someone with Mr Yorkshire's needs, after a long period of imprisonment, would not be enough to provide adequate protection against the risk of further serious offending. I agree with the observations of Hall J in State of Western Australia v Corbett [No 5], where his Honour said:
Accommodation for a person on a supervision order is not simply a place to live. The location and type of accommodation are factors that are integral to any proper assessment of the risk of reoffending. The absence of suitable accommodation makes it impossible to be satisfied that a supervision order is presently a viable option.[51]
[51] The State of Western Australia v Corbett [No 5] [2017] WASC 115 [80].
Uniting WA provides a supported accommodation program, and the support it offers is an important factor in the suitability of the accommodation. No other accommodation option was identified.
Uniting WA requires a minimum period of engagement of six months with participants in custody before offering accommodation and support in the community. It had commenced engagement with Mr Yorkshire in October 2020, about a month after he completed his sentence of imprisonment. The minimum period was not completed until 15 April 2021.
When this matter was first heard, in December 2020, Uniting WA could not then offer accommodation to Mr Yorkshire, and there was no guarantee that, after 15 April 2021, Mr Yorkshire would be offered supported accommodation, or that accommodation would be available. Uniting WA has a limited number of places and there was then no place free.
At the request of Mr Yorkshire, and without opposition from the State, the hearing was adjourned until after 15 April 2021, to see if there would then be a suitable place available which would make release on a supervision order a viable option. Following a further short adjournment, and a delay due to the COVID‑19 lockdown, the application returned to me on 26 July 2021 for completion. The court was then advised that suitable accommodation was available for Mr Yorkshire should he be released.
The proposed premises have been assessed as generally suitable.
Propensity to commit serious offences in the future
The word 'propensity' is used in its ordinary meaning in the context of the criminal law, that is, 'an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of the quality of a diagnosable mental illness or personality disorder'.[52]
[52] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [178].
The identification of factors that may be relevant to propensity is addressed in the expert reports.
Dr Wojnarowska and Ms Hasson, as part of the RSVP assessment, each identified 'potential risk scenarios'. Those scenarios identify features of the earlier sexual offending which might be repeated in any future offences. It is not clear to what extent the formulation of risk scenarios involves the application of the specialised knowledge and experience of the expert.
In his earlier offending, Mr Yorkshire offended opportunistically when intoxicated. In each case, the victim was (even if only recently, as in the last incident) known to him, isolated, and vulnerable because of youth or intoxication. Mr Yorkshire has been described as having an attitude of sexual entitlement, and this has contributed to the offences.
Dr Wojnarowska considered that Mr Yorkshire has an Antisocial Personality Disorder, evidenced by impulsivity, irresponsibility and disregard for societal rules and his own safety and the safety of others.[53] It appears likely that he retains attitudes of minimisation or denial of sexual violence, and a belief that he is entitled to have sex with 'available' women. Mr Yorkshire has made only limited gains in the treatment programs that he undertook while in custody.
[53] Book of Materials, 896.
I accept Dr Wojnarowska's opinion, and the matters she outlined lead me to find that, unless subject to further supervision and treatment, Mr Yorkshire has the propensity to commit serious offences in the future.
Is there any pattern of offending behaviour?
There are recurring features in Mr Yorkshire's serious offending.
The offending was opportunistic. Mr Yorkshire was intoxicated in each case. The offences were all committed against victims who were known to him, if only slightly. The first three offences occurred in public places.
In each case, the lack of consent was clearly expressed. Mr Yorkshire used his size and strength to intimidate or physically overpower each victim. The type of violence accompanying the last offence, when he punched and bit the victim as well as threatening her, was not present in the earlier offences.
Addressing the cause or causes of the offending behaviour, including participation in rehabilitation programs
Mr Yorkshire has participated in all programs that were made available to him while in prison. His participation was variable, and some questions were raised about the suitability of group programs, and about the effect of cultural factors in his response to programs. But Mr Yorkshire was reported as making treatment gains, including in developing victim empathy and recognising that what he had done was wrong.
In the report on the proposed High Risk Serious Offender Management Plan, Dr Poli reported that, during assessment, Mr Yorkshire described his participation in treatment programs as a 'waste of time', where he had struggled to comprehend the language and terminology used. Asked to describe what he had learned from each program, Mr Yorkshire said that his recollection was limited. He expressed frustration with facilitators for citing his offending history, stating 'they kept bringing up the past'. He could not recall the content covered in the Intensive Sex Offender Treatment Program, although he stated that keeping busy, abstaining from alcohol, and obtaining employment would assist him to avoid sexual reoffending.[54]
[54] Book of Materials, 850.
Mr Yorkshire was, however, willing to engage in further intervention and would do whatever he had to increase his chances of release.[55]
[55] Book of Materials, 850.
Dr Poli provided her assessment of Mr Yorkshire's treatment needs, both in her report and in oral evidence. She used the Violence Risk Scale-Sexual Offence Version (VRS‑SO) and the Violence Risk Scale (VRS) to identify outstanding treatment targets, and not as an assessment of risk of further offending.[56] Given the relationship between unmet treatment needs and the risk of further offending, there is clearly an overlap between those two objectives.
[56] Book of Materials, 852.
Dr Poli stated that in her opinion, following her assessment using the VRS-SO, Mr Yorkshire has extensive treatment needs. He has completed several programs while in prison, but made minimal gains that did not appear to have been maintained. In her opinion, Mr Yorkshire's lack of progress related, in part, to his perception that he does not require intervention and does not regard it as relevant.[57]
[57] Book of Materials, 856.
The effect of Dr Poli's evidence is that Mr Yorkshire has extensive treatment needs which were not met by the programs made available while he was serving his sentence. Overall, the evidence supports the conclusion that the treatment programs that were offered to Mr Yorkshire in the eight years of his sentence, and in the 10 months he has remained in custody after completing his sentence, were unsuitable for him specifically, and perhaps unsuitable generally for offenders with his background.
Dr Poli suggested that Mr Yorkshire may be more likely to benefit from individual intervention, supported by a culturally appropriate individual. Individual psychological counselling had demonstrated some benefit in the past and would allow 'a more targeted intervention to be implemented that is specific to his needs'. Dr Poli reported:
In the event that Mr Yorkshire is made subject to a Continuing Detention Restriction Order or a Community Supervision Restriction Order, he will be allocated a psychologist from the DOJ who will oversee his intervention needs and work with the Community Offender Monitoring Unit (COMU) regarding the management of his risk.[58]
[58] Book of Materials, 856.
That treatment was not previously made available to Mr Yorkshire. It is difficult to assess how he will respond to it.
Evidence of Mr Yorkshire
Mr Yorkshire did not give evidence.
Compliance with conditions
The Act distinguishes between the standard conditions of an order,[59] and the many conditions generally proposed which are directed towards close supervision of the offender.
[59] Defined in s 3.
By s 29 of the Act, the court cannot make a supervision order unless satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions of the supervision order. The standard conditions are those in s 30(2) that must be included in the order, and must require that the offender:
(a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender'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 offender'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 and comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32[60]); 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 serious offence during the period of the order; and
(g)be subject to electronic monitoring under section 31.
[60] Sections 31 and 32 provide for electronic monitoring of offenders and the imposition of a curfew.
By s 30(5):
A supervision order may contain any other terms that the court thinks appropriate -
(a)to ensure adequate protection of the community; or
(b)for the rehabilitation, care or treatment of the offender subject to the order; or
(c)to ensure adequate protection of victims of serious offences committed by the offender subject to the order.
The conditions imposed by a supervision order may be enforced under pt 4 div 5. A warrant may be issued for a suspected or anticipated contravention of a supervision order,[61] enabling a quick response to conduct that may increase community risk. An offender found on the balance of probabilities to have contravened or to be likely to contravene a condition of an order may be made subject to a continuing detention order.[62]
[61] Section 51.
[62] Section 55.
The court regularly imposes conditions that go beyond the standard conditions. By their number and the nature of the restrictions they seek to impose, they may be difficult to comply with. As Dr Poli said:
Anecdotally, from what we have seen from offenders who are on HRSO orders, the vast majority do have difficulty with the number of conditions. It is a very difficult and onerous order to be on… [Even] the offender who may not have literacy or comprehension issues will find it challenging, because there is a lot to be cognisant of.[63]
[63] ts 152 - 153.
The onerous conditions on an order can also make it difficult for offenders to get a job, or to succeed in forming friendships and integrating themselves positively in the community.[64] Those considerations must be balanced against the need for conditions that enable the court to be satisfied that the community will be adequately protected.
[64] ts 156.
Some of the conditions proposed by the State duplicate obligations imposed by other legislation,[65] or conditions which could be imposed by reasonable direction of a community corrections officer. There is no evidence before me about whether an offender is more likely to comply with an obligation that is imposed as a condition of the supervision order rather than by a specific direction or by some other means.
Will Mr Yorkshire comply?
[65] For example, the Community Protection (Offender Reporting) Act 2004 (WA).
Mr Yorkshire is required to satisfy the court that he will substantially comply with the standard conditions of the order. Because conditions are imposed to manage and minimise risk, the court must also consider whether he will comply with additional conditions imposed.
The question of Mr Yorkshire's likely compliance must be viewed in the context of his previous history of non-compliance with court orders.
Mr Yorkshire has five convictions for breaches of restraining orders, all between 1988 and 1999. He has a poor history of compliance with other court orders, including breaches of bail and six convictions between 2008 and 2012 for failing to comply with reporting obligations under the Community Protection (Offender Reporting) Act 2004 (WA).
Since 2001, Mr Yorkshire has been placed on four community based orders which were cancelled.[66]
[66] Book of Materials, 643, 826 - 827. Mr Yorkshire was not made eligible for parole on either of the sentences imposed in 1986 and 1990.
In September 2000, Mr Yorkshire was sentenced to imprisonment for 8 months for breach of bail, threatening behaviour and disorderly conduct.[67] He was released on parole in January 2001 and the order was cancelled in May 2001 (the reason is not stated, but his criminal record shows repeated offending in 2001).[68] Mr Yorkshire was imprisoned again in August 2001, following breach of an order for suspended imprisonment imposed in May 2001. He was released to parole in November 2001 and completed the parole period on 19 February 2002. His criminal history shows convictions recorded in January and February 2002, but not the dates of the offences.
[67] Book of Materials, 20 - 21.
[68] Book of Materials, 827.
In April 2002 Mr Yorkshire was placed on an Intensive Supervision Order, which was cancelled in September 2002. Community Based Orders were imposed in November 2003 and June 2006. Mr Yorkshire breached each order by re-offending.
I have referred earlier to the Pre-Sentence Order originally imposed in May 2007. Mr Yorkshire did not comply and was imprisoned in March 2008. A parole assessment in November 2008 stated that Mr Yorkshire failed to establish contact with the Department between December 2007 and March 2008 and committed offences relating to alcohol misuse.[69]
[69] Book of Materials, 643.
There is no evidence before the court about why the breaches occurred. A Community Based Order or Intensive Supervision Order may include a supervision requirement, but the evidence does not disclose the extent to which Mr Yorkshire was supervised in the community. Since the age of 18, Mr Yorkshire has lived what was described as a 'transient lifestyle', with an extended period living on the streets or in shelters.[70] He told Dr Poli, in her assessment, that at the time of these offences he was homeless, engaged in reckless behaviour, and paid little attention to his charges or court dates, generally forgetting about them.[71]
[70] Book of Materials, 641.
[71] Book of Materials, 850.
Although Mr Yorkshire did not give evidence, the witnesses for the State gave relevant evidence to the question of whether he is likely to comply with conditions of supervision.
A matter of concern is that, in his assessment for a property provided by Uniting WA, Mr Yorkshire is reported to have insisted that he be able to drink alcohol at the property with friends.[72] Ms Hasson had also reported that, at the time of her assessment, Mr Yorkshire expressed an interest in and desire to consume alcohol, and demonstrated little understanding of the nature and the restrictions to which he would be subject if released on a supervision order.[73]
[72] Supplementary report of Ms Cashmore.
[73] Book of Materials, 866; ts 75, 90.
Alcohol abuse was identified by the experts as the main risk in re‑offending.[74] Dr Wojnarowska diagnosed Mr Yorkshire as having an alcohol dependence, currently in remission.[75] Dr Wojnarowska expressed the view that 'should he not remain abstinent his likelihood of re-offending is considered to be high'.[76] Dr Wojnarowska commented on his limited insight regarding his offending and lack of any identified plan for how to avoid relapsing into alcohol use.[77]
[74] ts 67.
[75] ts 37.
[76] Book of Materials, 899.
[77] Book of Materials, 881; ts 53. See also Dr Poli at ts 141.
Alcohol is not permitted at Uniting WA properties. His ability to stay at that accommodation is essential to his release. Further, having regard to the role of alcohol in Mr Yorkshire's offending, the conditions of any supervised release would include a prohibition on drinking alcohol. In Dr Wojnarowska's opinion, breaches in relation to alcohol or drug use 'should be treated seriously with immediate consequences'.[78] I am satisfied that conditions must be imposed which would enable breaches in relation to alcohol or drugs to be quickly detected (for example, by a condition requiring urinalysis).
[78] Book of Materials, 901.
In Dr Wojnarowska's opinion, Mr Yorkshire would be likely to respond well if released into a structured environment.[79] She described him as having led 'a highly dysfunctional life with his history, trauma and psychological damage related to trauma'.[80] Dr Wojnarowska directly addressed the likelihood of non-compliance, having regard to that history:
that would very much depend on the conditions, and how closely he's supervised in the community, and also, whether he will be provided with adequate supports, so the higher supports and the tighter supervision - I would say, he would be less likely to be non‑compliant.[81]
[79] ts 36.
[80] ts 64.
[81] ts 33.
Ms Hasson also expressed the opinion that Mr Yorkshire can moderate his behaviour in a structured environment.[82] His previous non‑compliance with supervision had occurred in the context of Mr Yorkshire having no permanent place to live, and a lifestyle Ms Hasson described as 'completely unstable and chaotic'.[83]
[82] ts 101.
[83] ts 112.
Dr Poli said that Mr Yorkshire had a high level of motivation to be released, and was likely to accept assistance so that he could remain in the community.[84] While he had been resistant to change in prison based programs, that resistance could be a result of the way those programs had been delivered.[85] He showed some benefit when approached individually by the facilitators within group programs.[86] His participation and engagement were noted to improve when he was engaged individually with an Aboriginal facilitator.[87] I also have had regard to Dr Wojnarowska's comments about Mr Yorkshire's distrust of Caucasian women.
[84] ts 159 - 160.
[85] ts 161.
[86] ts 163.
[87] Book of Materials, 851 (Dr Poli).
Dr Poli reported that Mr Yorkshire's behaviour and comments during assessment suggested that he would have difficulty adhering to a community order 'without a high level of assistance and support'.[88]
[88] Book of Materials, 854.
The evidence of Ms Cashmore was that:
Should Mr Yorkshire be released to a HRSO Supervision Order, he would be subject to closer monitoring and supervision by members of the Risk Management Team; including Police Officers, Community Corrections Officer is, management staff from the Department of Justice and Forensic Psychological Services psychologists. The risk management of Mr Yorkshire would include regular and unscheduled home visits, liaison with community agencies and other stakeholders, as well as regular review of his risk factors at Risk Management Meetings.[89]
[89] Book of Materials, 915.
Ms Cashmore attached a list of 59 conditions which were proposed 'to facilitate monitoring of conditions and engagement in the risk management of Mr Yorkshire'.
On the evidence, particularly that of Dr Wojnarowska which I found most helpful, Mr Yorkshire must be subject to strict conditions. Some of them should be set out in the supervision order - in particular, conditions regarding abstinence from alcohol and drugs and the obligation to be subject to testing to ensure compliance.
I doubt the effectiveness of a supervision order with many, generally expressed conditions. The evidence about Mr Yorkshire's literacy skills is inconsistent.[90] I also have regard to Dr Poli's evidence about the challenge of onerous conditions, and the evidence about Mr Yorkshire's inability to retain material presented in the prison programs, compared with his response when dealt with one-on-one.
[90] Book of Materials, 851.
I also doubt, for someone of his background, the usefulness of conditions expressed in terms of compliance with, or not committing offences against, specified provisions of statutes.[91]
[91] For example, proposed condition 25 to 'not commit an offence under ss 202, 203, 204, 204A, 204B, 217, 218, 219, 220 or 557K of the Criminal Code'.
It is a standard condition that must be imposed in any supervision order that the offender be under the supervision of a community corrections officer and comply with any reasonable direction of the officer. Directions which are specifically tailored to Mr Yorkshire and his current living conditions - for example, in relation to access to sex workers, keeping a diary, conditions of employment, reporting relationships and friendships - and which are explained to him at the time they are given, may be more consistent with effective supervision.
The court's function is judicial. The court can impose conditions that Mr Yorkshire will have to comply with, the breach of which will result in his being subject to further restriction. It cannot direct the level of supervision and support to be provided to him. I accept that Mr Yorkshire is motivated to be released and remain in the community. On the basis that he will be provided the assistance and supervision he requires, as outlined by Ms Cashmore, the evidence supports a finding that he is likely to be substantially compliant. The conditions to be imposed on his release will necessarily include both a prohibition on the use of alcohol and drugs, and the requirement to submit to testing to ensure that he complies.
Conclusion
The ultimate issues for the court to determine are the risk that, if he were not subject to a restriction order, Mr Yorkshire would commit a serious offence, and how to protect the community against an unacceptable risk.
On the evidence presented, I am satisfied that it is necessary to make a restriction order in relation to Mr Yorkshire.
The persons at risk from Mr Yorkshire are women - possibly younger women, although the offences against younger victims were many years ago. The risk factor is vulnerability, to which youth may contribute, rather than youth itself. He is not sexually attracted to young children. Except for the first offence, the offending was against women with whom he had been drinking.
The potential harm that would result from further offending is very serious; of additional concern is the escalation in violence in the most recent group of offences.
I am satisfied that restriction on Mr Yorkshire is necessary. Mr Yorkshire has unmet treatment needs relating to his potential to return to alcohol abuse, and to his attitudes regarding consent to sexual acts. The combination of those factors has, in the past, resulted in serious offending. That there are unmet needs does not mandate continuing detention if treatment can be continued in the community under supervision and provided an adequate supervision regime is in place.
If he is released from custody, Mr Yorkshire will be given housing in suitable accommodation and supported in returning to the community. He will be subject to standard conditions, which include electronic monitoring and may include a curfew. He will be provided with individual counselling and be monitored by the police and community corrections. He will be subject to additional conditions, particularly directed to the prohibition of alcohol and drug use and monitoring of compliance with those conditions.
On the evidence, I am satisfied that the risk can be managed, and the community provided with adequate protection, if he is subject to a structured environment, and by supervision and treatment pursuant to the conditions of a supervision order.
The evidence as to the necessary length of the order was given by Dr Wojnarowska, who said not shorter than 10 years, and Ms Hasson, who said at least seven years. Counsel for Mr Yorkshire submitted that the court should impose the lesser period, with the possibility of an application for a further order under s 36 should that be required. I have earlier quoted Dr Wojnarowska's evidence where she explained the reason why a long period of supervision is required. I accept her opinion, and will make an order for supervision in the community for 10 years.
A supervision order has effect from the date stated in the order. The date must be not earlier than 21 days after the order is made unless the court is satisfied that implementation of the order from an earlier date is practically feasible.[92]
[92] Section 27(1)(3).
The court was advised on the morning before orders were to be made that the Department preferred more than 21 days and requested a release date of 6 September 2021 to enable additional time for the team to prepare 'for possible introductions and/or commencement of counselling before release'. This delay will not affect the availability of the accommodation.
The court was further advised that resources are in short supply due to low staffing and no assurances could be given to confirm the time it will take to commence individual psychological counselling.
The Act gives paramount importance to community safety. The release will be deferred, as requested, on the basis that the short delay is necessary to enable the Department and the Western Australian Police to properly supervise and treat Mr Yorkshire. That supervision and treatment are essential conditions of his release.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MG
Associate to the Honourable Justice Allanson
2 AUGUST 2021
2
8
0