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Supreme Court of Western Australia |
Last Updated: 19 May 2022
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION : STATE OF WESTERN AUSTRALIA -v- YATES [No 3] [2021] WASC 382
CORAM : DERRICK J
HEARD : 26 OCTOBER 2021
DELIVERED : 9 NOVEMBER 2021
FILE NO/S : SO 3 of 2013
BETWEEN : STATE OF WESTERN AUSTRALIA
Applicant
AND
NIGEL CHRISTOPHER YATES
Respondent
Criminal Law - High Risk Serious Offender - Contravention proceedings - Application under s 53 and s 55(1) of the High Risk Serious Offenders Act 2020 (WA) for rescission of supervision order and making of continuing detention order
Legislation:
Dangerous
Sexual Offenders Act 2006
(WA)
Evidence
Act 1906
(WA)
High
Risk Serious Offenders Act 2020
(WA)
Medicines
and Poisons Act
2014
Misuse of
Drugs Act (1981)
(WA)
Restraining
Orders Act 1997
(WA)
Sentencing
Act 1995
(WA)
Result:
Application
to rescind supervision order
refused
Supervision order conditions
amended
Supervision order period
extended
Representation:
Counsel:
|
Applicant
|
:
|
Mr B D Meertens
|
|
Respondent
|
:
|
Mr D C Jones
|
Solicitors:
|
Applicant
|
:
|
Director of Public
Prosecutions (WA)
|
|
Respondent
|
:
|
Mr D C Jones
|
Case(s)
referred to in decision(s):
1 The applicant applies under s 53 of the High Risk Serious Offenders Act 2020 (WA) (Act) for orders under s 55(1) of the Act (the application).
Events leading to the making of the application2 The respondent is subject to a supervision order (Supervision Order) made under s 33(1)(b)(ii) of the now repealed Dangerous Sexual Offenders Act 2006 (WA) (DSO Act).[1] The Supervision Order was made on 5 May 2020.[2] The respondent was released on the Supervision Order on 2 June 2020.
3 Condition 4 of the Supervision Order provides that the respondent is to be under the supervision of a Community Corrections Officer (CCO), which includes complying with any reasonable direction of the CCO (including a direction for the purposes of s 19A or 19B of the DSO Act).
4 Condition 28 of the Supervision Order provides that the respondent is not to possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 (WA) (MDA) applies, including, but not limited to, cannabis, unless the drug has been prescribed for him by a person duly authorised under the Medicines and Poisons Act 2014 (WA) and his use is in accordance with the instructions of the prescriber.
5 Condition 29 of the Supervision Order provides that the respondent is to be subject to a curfew pursuant to s 19B of the DSO Act and is to remain at, and not leave, his approved address as directed by a CCO from time to time.
6 Condition 42 of the Supervision Order provides that the respondent is to attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a police officer including accompanying such persons to an appropriate location for such testing to take place.
7 On 2 June 2020 the respondent signed a Written Lawful Instruction which directed him not to leave his approved address between the hours of 6.00 pm and 6.00 am Monday to Sunday without the permission of his CCO. Accordingly, the respondent was, pursuant to conditions 4 and 29 of the Supervision Order, directed to comply with a curfew between the hours of 6.00 pm and 6.00 am each day (the curfew).
8 On 13 July 2020 the respondent was charged in the Magistrates Court with one offence of contravening, without reasonable excuse, a requirement of the Supervision Order (condition 29) contrary to s 40A(1) of the DSO Act (AR 7111/20). The alleged contravention was that on 11 July 2020 the respondent failed to comply with the curfew between 6.00 pm and 8.58 pm. On being charged the respondent was remanded in custody.
9 On 11 August 2020 the respondent was recorded as pleading guilty to the contravention charge and was convicted of the charge.[3] He was sentenced to 6 months and one day imprisonment suspended for 12 months. He was released from custody and remained subject to the conditions of the Supervision Order.
10 On 28 August 2020 the respondent was charged in the Magistrates Court with four further offences of contravening, without reasonable excuse, a requirement of the Supervision Order contrary to s 40A(1) of the DSO Act (PE 40200/2020 - 40203/2020). The first three charges alleged contraventions of condition 28 of the Supervision Order. The fourth charge alleged a contravention of condition 29 of the Supervision Order. The alleged contraventions of condition 28 were that the respondent had on or about 17 August 2020 used an opiate type class of prohibited drug, had on or about 21 August 2020 used cannabis, and had on or about 24 August 2020 again used cannabis. The alleged contravention of condition 29 was that on 27 August 2020 the respondent, without explanation, failed to return to his approved address by 6.00 pm and did not return until 6.17 pm. On being charged with the alleged contraventions the respondent was again remanded in custody.
11 On 3 September 2020 the State, due to the respondent being convicted of the first of the contravention offences and being charged with the additional four contravention offences, made the application. By the application the applicant seeks the following orders:
1. Pursuant to s 55(1)(a) of the Act, an order that the Supervision Order be rescinded and a continuing detention order be made in relation to the respondent; and
2. Alternatively, pursuant to s 55(1)(b) of the Act, and subject to s 29(1) of the Act, an order that the Supervision Order be amended in such terms that the Court deems fit.
Events since the making of the application12 The respondent pleaded not guilty to the four contravention charges laid against him on 28 August 2020. The respondent's trial on the four charges took place in the Magistrates Court on 24, 25 and 28 May 2021.
13 On 28 May 2021 the respondent was convicted of one only of the four contravention charges, specifically one of the charges alleging that he had used cannabis.
14 On 21 June 2021 the respondent was sentenced for the single contravention offence relating to his use of cannabis of which he had been convicted. He was sentenced to one month imprisonment for the offence.[4]
15 The respondent's conviction for the contravention offence relating to his use of cannabis constituted a breach of the suspended imprisonment order that had been imposed on him for his earlier contravention offence arising from his breach of his curfew. Therefore, on 21 June 2021 the respondent was also dealt with for the earlier contravention offence. The magistrate approached this aspect of the sentencing exercise by ordering the respondent to serve the suspended term of 6 months and one day imprisonment imposed for the earlier contravention offence, by ordering that the one month term imposed for the contravention offence relating to the respondent's use of cannabis be served cumulatively on the 6 months and one day sentence, and finally by ordering that 5 months of the total 7 months and one day term of imprisonment be suspended for a period of 7 months. The net result was that the respondent was required to serve 2 months immediate imprisonment for both contravention offences.[5]
16 The respondent completed serving his 2-month term of immediate imprisonment imposed by the magistrate on 20 August 2021. The suspended portion of the sentence imposed by the magistrate will expire on 21 January 2022.
17 On 16 September 2020 Archer J made an order under s 53(2)(b) of the Act that the respondent be detained in custody pending the determination of the application.
The enactment of the High Risk Serious Offenders Act 2020 (WA)18 On 9 July 2020 pt 1 of the Act came into operation.[6] Other parts of the Act relevant to the application came into operation on 26 August 2020 (commencement day).[7] Upon the coming into operation of these other parts of the Act the DSO Act was repealed.[8] It is in these circumstances that the application has been made under the Act.
19 Under s 125 of the Act, if an order made, or direction given, under the DSO Act is in effect on the commencement day, the order or direction continues in effect and is taken to have been made or given under the corresponding provision of the Act. Accordingly, the Supervision Order continues in effect and is taken to have been made under the Act.
20 In The State of Western Australia v ZSJ,[9] a case in which the State made an application under div 2 of the DSO Act but which, given the repeal of the DSO Act, fell to be decided under the provisions of the Act, Fiannaca J made the following observations (citations omitted):
As will emerge from the outline below of the statutory framework under the DSO Act and [the Act], the concepts and criteria with which the court is concerned in determining an application of this kind are substantially the same under both statutes. Although I have reached that view on the basis of the ordinary meaning of the provisions of both statutes, having regard to the context of the provisions within the statutes and the objects underlying the statutes, the construction is confirmed, in my opinion, by the second reading speech made to the Legislative Assembly in respect of theHigh Risk Offenders Bill 2019
by the Honourable Attorney General. The Attorney informed the House that the bill was intended to 'extend the Supreme Court's ability to make a continuing detention order or supervision order to serious violent offenders in the same manner as the provisions contained in the [DSO Act]'. He went on to say:
In doing so, this bill fully preserves the provisions that apply in respect of dangerous sexual offenders in the [DSO Act].
Whether or not that has been achieved remains to be seen upon analysis of the provisions. However, in my opinion, as the concepts and criteria in both statutes are substantially the same, the jurisprudence established in respect of the DSO Act remains relevant in construing and applying [the Act], with appropriate adaptation in cases involving non-sexual offences.
21 I respectfully agree with Fiannaca J's observations. In my opinion the case law decided under the DSO Act in relation to applications made under the corresponding provisions to s 53 and s 55 of the Act remains relevant to the determination of applications made under s 53 and s 55 of the Act.[10] Accordingly, the cases to which I will refer in dealing with the legal principles applicable to the determination of the application under the Act will be cases that have been concerned with proceedings under the DSO Act.
Section 55 of the Act and applicable legal principles22 Section 53 of the Act is the section that specifies the circumstances in which the applicant may apply for an order under s 55. It is not in issue that in the case of the respondent the circumstances for the making of an application for an order under s 55 exist.
23 Section 55 of the Act relevantly provides as follows:
(1) If, on the hearing of an application under section 53, the court is satisfied on the balance of probabilities that the offender to whom the application relates has contravened or is contravening a condition of a supervision order, the court must ‑(a) rescind the supervision order and make a continuing detention order in relation to the offender; or
(b) except as provided in section 29, make an order amending the conditions of the supervision order, or extending the period for which the offender is to be subject to the supervision order, or both; or
(c) except as provided in section 29, make an order affirming the supervision order without amendment or extension.
(2) If, on the hearing of an application under section 53, the court is satisfied on the balance of probabilities that the offender to whom the application relates is likely to contravene a condition of a supervision order, the court must ‑(a) rescind the supervision order and make a continuing detention order in relation to the offender; or
(b) except as provided in section 29, make an order -(i) amending the conditions of the supervision order; or
(ii) amending the conditions of, and extending the period for which the offender is to be subject to, the supervision order.
(3) In deciding which order to make under subsection (1) or (2), the paramount consideration is to be the need to ensure adequate protection of the community.
24 The respondent, given that he is subject to the Supervision Order, is an 'offender' to whom the application relates within the meaning of s 55.[11]
25 The references in s 55 to a 'continuing detention order' are references to 'an order that the offender be detained in custody for an indefinite term for control, care, or treatment'.[12] The references in s 55 to a 'supervision order' are references to 'an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate, in accordance with s 30'.[13]
26 Section 29 of the Act provides:
(1) A court cannot make, affirm or amend a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made, affirmed or amended.
(2) The onus of proof as to the matter described in subsection (1) is on the offender.
(3) This section does not apply to the making of an interim supervision order.
27 The term 'standard condition' is defined in s 3 of the Act to mean, in relation to a supervision order, a condition which under s 30(2) of the Act must be included in the order. Section 30(2) of the Act specifies seven conditions that must be included in any supervision order.
28 Therefore, the effect of s 29(1) and s 29(2) of the Act is that the offender must satisfy the court on the balance of probabilities that he will substantially comply with the standard conditions set out in s 30(2) before the court can amend and/or extend a supervision order pursuant to s 55(1)(b) or affirm a supervision order pursuant to s 55(1)(c), or amend a supervision order pursuant to s 55(2)(b)(i) or amend and extend a supervision order pursuant to s 55(2)(b)(ii).
29 For the court to be satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions of a supervision order, it must be satisfied that the offender will comply with the standard conditions in a manner and to an extent that is consistent with, and will enable, the attainment of the general object of the supervision order and the Act, namely the adequate protection of the community by management and mitigation of the risk that the offender will commit a serious offence.[14]
30 Even if the court is satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions set out in s 30(2), this will not necessarily mean that a supervision order should be amended, extended or affirmed. This is because by reason of s 55(3) the paramount consideration, in deciding whether to make an order under s 55(1), is the need to ensure adequate protection of the community. Accordingly, even if the court is satisfied that an offender will substantially comply with the standard conditions of a supervision order, there may be circumstances in which, despite such a finding, the court is not satisfied that releasing the offender on a supervision order will ensure adequate protection of the community.[15]
Evidence on the application31 At the hearing of the application the applicant tendered, without objection, a Book of Materials comprising two volumes, volume 1 being dated 12 July 2021[16] and volume 2 being dated 28 July 2021.[17] Volume 1 of the Book of Materials includes a variety of materials relating to the respondent including prison records, medical records, previous judgments and previous reports. Volume 1 also contains the particulars of the respondent's contraventions of the Supervision Order. Volume 2 contains the following reports prepared specifically for the application:
1. A report prepared by Dr Peter Wynn Owen, Consultant Psychiatrist, dated 27 July 2021 (Psychiatric Report);
2. A High Risk Serious Offender Treatment Progress Report prepared by Dr Sarah Barbas, Clinical and Forensic Psychologist with the Department of Justice's (Department) Forensic Psychological Service (FPS), dated 13 July 2021 (Treatment Progress Report); and
3. An Adult Community Corrections Performance Report prepared by Ms Trudy Hill, a Senior CCO within the Department's Community Offender Monitoring Unit (COMU), dated 12 July 2021 (Performance Report).[18]
32 At the hearing of the application the applicant also tendered without objection the following:
1. A copy of the transcript of the above referred to sentencing proceedings that took place in the Magistrate's Court on 21 June 2021;[19]
2. A copy of an email from the applicant's solicitor to the court dated 30 September 2021 incorporating updated information relating to the respondent provided by Ms Aimee Goode, a Senior CCO with the COMU;[20]
3. A copy of an email from the applicant's solicitor to the court dated 25 October 2021 incorporating updated information relating to the respondent provided by Dr Nadia Dias of the FPS;[21] and
4. A copy of an email from the applicant's solicitor to the court dated 25 October 2021 incorporating updated information relating to the respondent provided by Ms Goode.[22]
33 At the hearing of the application the applicant called Dr Wynn Owen and Ms Hill to give supplementary oral evidence. The applicant did not call Dr Barbas to give supplementary evidence. The respondent did not require the applicant to make Dr Barbas available for cross-examination.
34 The respondent did not adduce any evidence at the hearing of the application.
35 Dr Wynn Owen was responsible for assessing the respondent for the purposes of, and provided evidence on, the original application made in relation to the respondent under the DSO Act in 2013, and subsequent review and contravention hearings relating to the respondent, including the most recent review hearing which led to the respondent being released on the Supervision Order.
The respondent's serious sexual offending36 In The State of Western Australia v Yates[23] Quinlan CJ summarised the facts of the respondent's history of serious sexual offending in the following terms which I respectfully adopt:
The first serious sexual offence was committed in 1998 when Mr Yates was 22 years old. The victim of that offence was Mr Yates' 39-year-old female cousin. Mr Yates physically assaulted the victim, causing her a number of injuries, and sexually penetrating [sic] her without her consent on two occasions.
Mr Yates' second serious sexual offence was committed on 24 July 2003. On that occasion, Mr Yates physically restrained a 19-year-old woman who had rejected his sexual advances, removed her tracksuit pants and sexually penetrated her without her consent.
Mr Yates' third and final serious sexual offence was committed on 9 January 2009. The circumstances of that offence were that the victim, who was 15 years of age, together with two female relatives accepted a lift from Mr Yates, supposedly to Laverton. Mr Yates was sniffing an inhalant as he drove. He drove through Laverton and parked his vehicle in a remote spot. The two older women left the vehicle and Mr Yates forced the victim into the backseat by threatening her and had sexual intercourse with her without her consent. Mr Yates then drove the women back to Laverton.
37 The respondent committed the above referred to second serious sexual offence on the day after he had been released from serving a sentence of imprisonment imposed on him for an offence of assault occasioning bodily harm committed against a female nurse. The circumstances in which the assault offence was committed had a sexual connotation.[24]
38 The respondent completed the term of imprisonment imposed for the above referred to last serious sexual offence on 9 July 2013. It was following the completion of this sentence that the respondent was made subject to the DSO Act and placed on the first of a number of continuing detention orders.
39 The respondent has not committed any further sexual offences since he was made subject to the DSO Act.
The history of proceedings under the Act40 As a consequence of being subject to the DSO Act the respondent has, since 2014, been the subject of a number of decisions of this court.[25] I have had regard to these decisions.
41 An overview of the history of the respondent's involvement with the DSO Act is as follows:[26]
|
DATE
|
EVENT
|
|
April
2014
|
Declared
a dangerous sexual offender (DSO) and continuing detention order (CDO)
made.
|
|
June
2015
|
CDO
affirmed.
|
|
Early
August 2016
|
Released
on a supervision order (SO).
|
|
4
- 21 October 2016
|
Breach
of SO.
|
|
24
October 2016
|
First
contravention proceedings commenced.
|
|
28
August 2017
|
Released
on SO.
|
|
2
- 4 November 2017
|
Breach
of SO by drinking in park with females.
|
|
8
November 2017
|
Second
contravention proceedings commenced.
|
|
7
May 2018
|
Released
on SO.
|
|
9
- 11 May 2018
|
Breach
of SO by consuming methylamphetamine.
|
|
16
May 2018
|
Breach
of SO by drinking alcohol at home.
|
|
16
May 2018
|
Returned
to custody.
|
|
17
May 2018
|
Contravention
proceedings commenced.
|
|
25
May 2018
|
Pleaded
guilty to breach offences.
|
|
11
January 2019
|
Sentenced
for breach offences to 9 months imprisonment to commence on 16 May
2018.
|
|
5
March 2019
|
Made
subject to a CDO.
|
|
2
June 2020
|
Released
on SO.
|
42 As the above overview reveals, the respondent has been released on a supervision order on four occasions, specifically in August 2016, August 2017, May 2018 and most recently in June 2020. As the above overview also reveals, the respondent has breached requirements of the supervision orders on four occasions, usually within a short time of being released into the community.
43 The respondent has been convicted of 13 offences against s 40A(1) of the DSO Act.
44 It is necessary to refer in more detail to the respondent's past breaches of his supervision orders. It is necessary to do so because the nature of the breaches is relevant to the determination of the application.
45 In The State of Western Australia v Yates[27] Quinlan CJ summarised the respondent's past breaches of his supervision orders by reference to earlier decisions of this court in the following terms:
In Director of Public Prosecutions (WA) v Yates [No 4] [[2017] WASC 250], Martin CJ dealt with a number of breaches of the conditions to which Mr Yates pleaded guilty:
The first offence was committed between 4 October and 11 October 2016, when he consumed or used cannabis and methylamphetamine. The second offence was committed between 11 October and 19 October 2016 by the consumption of cannabis. The third offence was committed on 21 October 2016 when Mr Yates consumed or used amphetamine and methylamphetamine.
Martin CJ also referred to a number of other contraventions of conditions of the supervision order in relation to which criminal charges were not brought because of their minor nature and the extenuating circumstances in which those breaches occurred.
The second contravention proceedings against Mr Yates were the subject of Martin CJ's decision in Director of Public Prosecutions (WA) v Yates [No 5] [[2018] WASC 160]. The contraventions in that case were described by his Honour as follows:
On 2 November 2017, police located Mr Yates in a park near the corner of Wellington and Pier Streets, Perth. He was in the company of others, including a male and three females of approximately his age. There were containers of alcoholic beverages near the group, and members of the group were observed by police to be drinking from them. Police ascertained that Mr Yates was subject to a supervision order and directed him to submit to a preliminary breath test. That test returned a positive result to alcohol. He was conveyed to Perth police station at 3.45 pm and provided a sample of breath for analysis which returned a positive blood alcohol content result of 0.135%.
Mr Yates' consumption of alcohol constituted a breach of condition 41 of the supervision order.
On 3 November 2017, following Mr Yates' apprehension at the park, the community corrections officer responsible for the supervision of Mr Yates issued him with a Written Lawful Instruction, in terms which directed Mr Yates that:
You are not permitted to attend the park at 324 Wellington Street, PERTH WA 6000.
A map depicting the area which Mr Yates was not to attend was incorporated within the instruction given to Mr Yates by the community corrections officer.
At 8.59 pm on 4 November 2017, the Central Monitoring Station operator monitoring information provided by the GPS monitor that Mr Yates was wearing received an alert indicating that Mr Yates was again at the park near the corner of Wellington and Pier Streets, Perth.
Police attended the park at around 9.45 pm on 4 November 2017 and arrested Mr Yates. By attending the area the subject of the Written Lawful Instruction issued on 3 November 2017, Mr Yates was in breach of condition 4 of the supervision order.
Police attending the park in Wellington Street on the evening of 4 November 2017 noticed that Mr Yates was in company with other people, including several males and a female of approximately his age. Once again police noticed containers of alcoholic beverages near the group, and members of the group were observed to be drinking from them. CCTV footage of the scene showed that Mr Yates was consuming alcohol, in the form of beer. Police directed Mr Yates to submit to a preliminary breath test which returned a positive blood alcohol content result of 0.199%. Mr Yates' consumption of alcohol was another breach of condition 41 of the supervision order.
Mr Yates had also been given a written instruction to remain in his residence between 7 pm and 7 am unless otherwise directed by a community corrections officer. As there was no direction permitting Mr Yates to leave his residence on the evening of 4 November 2017, his presence at the park in Wellington Street on that evening constituted a breach of conditions 4 and 33 of the supervision order.
The third contraventions were those dealt with in Jenkins J's judgment in The State of Western Australia v Yates [2019] WASC 63, in which her Honour rescinded the supervision order. Those contraventions were as follows:
Perth 25671/2018.
On 16 May at 6.30 pm, the police attended your home to conduct an unannounced home visit. Police directed you to undergo a random preliminary breath test. It returned a positive result to alcohol. There was a woman present at your home. You had not been given permission to have her in your home. No sexual contact occurred between the two of you. You told the police you did not intend to have any sexual contact with her that evening.
You were taken by the police to the Perth Police Station, where you provided a sample of breath for analysis. You had a blood alcohol content of 0.039%. You declined to participate in an interview, and you provided no excuse for drinking alcohol. Your consumption of alcohol was in breach of condition 41 of your supervision order.
Perth 25870/2018.
On 11 May 2018, you were directed by your community corrections officer to provide a sample of urine for analysis. At 12.45 pm, you provided the required sample. It was sent to PathWest for analysis.
On 17 May 2018, the test results gave a positive reading to amphetamine with a concentration of 1,293 micrograms per litre, as well as a positive reading for methylamphetamine with a concentration being greater than 5,000 micrograms per litre. Your previous test result in relation to a sample you provided on 9 May 2018 was negative to any illicit substance or drug.
In those circumstances, you admit using an illicit substance namely, methylamphetamine (it may have contained amphetamine, as well) on one occasion between 9 and 11 May 2018. I note that means that you used illicit drugs only two-four days after you were released on the supervision order. Your use of the illicit drugs was in breach of condition 32 of the order. You declined to comment about the positive reading.
46 As is apparent from the above summary, the respondent's past breaches of his supervision orders have not related to any sexual offending by him. Rather, they have arisen as a result of the respondent consuming alcohol or illicit drugs, often while in the company of women without prior authorisation, and breaching his curfew.
47 The respondent has been sentenced to terms of imprisonment for the breaches.[28]
The decision of Quinlan CJ in The State of Western Australia v Yates48 In March and May 2020 the respondent came before Quinlan CJ pursuant to the relevant provisions of the DSO Act for a review of the continuing detention order made in relation to him in March 2019.
49 Quinlan CJ found that the respondent remained a serious danger to the community within the meaning of the DSO Act.[29] His Honour found that the respondent presented a high risk of future sexual offending which needed to be managed, for the added protection of the community, by either a continuing detention order or a strict supervision order.[30] His Honour identified the real issue before him to be whether he could be satisfied that the respondent would substantially comply with the standard conditions of a supervision order and whether the community would be adequately protected by making the respondent the subject of a supervision order.[31] His Honour concluded that he was satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions specified in s 18(1)(a) - (e) and s 18(1)(g) of the DSO Act.[32] His Honour then turned his attention to the question whether he was satisfied on the balance of probabilities that the respondent would comply with the remaining standard condition specified in the DSO Act, specifically that the respondent would not commit a sexual offence within the meaning of s 36A of the Evidence Act 1903 (WA).[33] In this regard his Honour said the following:[34]
The prospect that Mr Yates will comply with this condition, is closely connected with whether he complies with conditions not to consume drugs or alcohol. Mr Yates' previous sexual offending and much of his general offending is associated with his problems with substance abuse. I accept Dr Wynn Owen's evidence in that regard.
It is for this reason that satisfactory management, and monitoring, of Mr Yates' substance abuse problems is a critical aspect of managing his risk of committing a sexual offence, including a serious sexual offence. This is why on previous occasions conditions have been imposed on Mr Yates that he is not to consume drugs or alcohol, and why breaches of those conditions have resulted in further terms of imprisonment and the rescission of his supervision order.
More generally, whether, and to what extent, Mr Yates' substance abuse problems can be monitored and managed is critical to whether I can be satisfied that releasing Mr Yates on a supervision order will ensure adequate protection of the community in relation to sexual offending.
As Mr Yates' history demonstrates, he has not, thus far, been able to comply with a condition that he not use drugs or alcohol. On the last occasion upon which he was released, he breached the condition within 2 to 4 days of being released by consuming drugs. Approximately a week later he breached the condition again, by consuming alcohol (and having a woman present in his home).
I accept the evidence of Dr Wynn Owen that the explanation for those (and other) breaches of the conditions of the previous supervision order includes Mr Yates' 'loneliness and isolation in a metropolitan Perth setting, limited coping skills and a now stereotyped pattern of coping in Perth'. Evidently, Mr Yates knows what he has to do to comply with the conditions, but the circumstances in which he has found himself (isolated from his family and community) have been such that he has been unable to put that knowledge into practice.
At the same time, three matters should be noted in relation to the previous occasions on which he has breached that condition.
First, they have not been associated with sexual offending itself. That is, Mr Yates has not committed a further sexual offence since he was made subject to the provisions of the [DSO Act], indeed for over a decade. This is not to downplay the importance that avoiding substance abuse has for managing his future risk of committing a sexual offence. Nevertheless, as Dr Wynn Own acknowledged, it was a protective factor that there had been a decrease in the risk of imminence of serious sexual offending.
Secondly, it is also clear that, on previous occasions upon which Mr Yates has returned to using drugs and alcohol, that behaviour has been rapidly detected and acted upon by those supervising him. In that regard, Martin CJ's expectation, in Director of Public Prosecutions (WA) v Yates [No 3] ([2016] WASC 213), that breaches of his conditions would trigger his return to court have been borne out.
Thirdly, Dr Wynn Owen agreed that if subject to a more structured approach to support and supervision than what was applied at the time of his last release, the imminence of a breach of supervision order conditions was along the lines of months, if not greater, as opposed to days and weeks.
These three matters, taken in combination, provide me with confidence that, with proper monitoring and management, Mr Yates' risk of committing a sexual offence can be properly managed in the community. In those circumstances I am satisfied, on the balance of probabilities, that he will comply with the condition not to commit a sexual offence. In particular, the nature of the conditions to which he would be subject would mean that any return to high risk behaviours, which may, in turn, lead to a return to sexual offending, would be rapidly acted upon and Mr Yates would be returned to custody.
Of course, this does present something of a dilemma. In the event that Mr Yates does return to drug and alcohol use, in breach of conditions, he would be returned to custody, making it more difficult for a court to again be satisfied that he will be compliant in the future. The practical consequence, of course, would be that Mr Yates would remain in custody.
On the other hand, there is no way of determining whether the gains that Mr Yates has made will be effective, in practice, until he is given an opportunity to live in the community. Moreover, as Dr Bannister agreed in his evidence, unless Mr Yates has the capacity to employ the treatment gains and skills in the community there is a risk of the effectiveness of those skills being lost.
Added to this, it must be remembered, is that the purpose of the conditions is not to prevent substance abuse for its own sake (although that is no doubt a worthwhile and admirable goal). Mr Yates is not subject to the [DSO Act] because he has a substance abuse problem. Rather, the prevention of Mr Yates' substance abuse is for the purpose of protecting the community from serious sexual offending. The importance of Mr Yates complying with conditions related to substance use must be understood in that context.
Nevertheless, it is not in the interests of the protection of the community for Mr Yates to be set up to fail. Nor is it in the interests of the protection of the community for whatever gains Mr Yates has made to be lost.
It is for this reason, in Dr Wynn Owen's opinion, which I accept, that 'a different and proactive management approach' is needed.
Ideally, of course, Mr Yates would be released on supervision in regional Western Australia, for all of the reasons associated with loneliness and social isolation that have been identified. Current resourcing and administrative arrangements prevent that from being a possibility. There is no indication that that will change in the foreseeable future.
That is not, however, a reason to conclude that Mr Yates cannot be adequately managed in the community, or that the community cannot be adequately protected by a supervision order requiring Mr Yates to reside in the metropolitan area.
In this regard, I am impressed by the efforts to which COMU and Uniting Care West have gone to formulate a structured, proactive approach to Mr Yates' management in the community in the metropolitan area. They have each demonstrated, in my view, a genuine commitment to provide Mr Yates the best possible opportunity to successfully comply with a supervision order. It is correct that they have not yet been able to identify an indigenous mentor, but in every other respect, those agencies have put in place a structured program that is directed towards the issues that Mr Yates has found difficult when released.
In the end, I am satisfied that Mr Yates will substantially comply with the standard conditions and that the community can be adequately protected by placing Mr Yates on a supervision order, with appropriate conditions designed to ensure that protection.
50 As is apparent from Quinlan CJ's above statements, central to his Honour's ultimate decision to release the respondent on the Supervision Order was the 'structured, proactive approach' taken by the COMU and Uniting Care West (UCW) to the respondent's management in the community in the Perth metropolitan area. The management plan that had been developed for the respondent included the following:[35]
1. The membership of the Risk Management Team and a requirement for the team to meet on a fortnightly basis (with the opportunity for consultation outside these times);
2. The identity of the respondent's proposed senior counselling psychologist and the frequency of their meetings;
3. The identity of the respondent's proposed UCW case worker (with whom the respondent had worked before and with whom he would have contact prior to any release);
4. The identity of the respondent's proposed substance use counsellor and the frequency of their counselling sessions (the counsellor being a person who had previously worked with the respondent);
5. Details of attempts to identify a suitable Indigenous mentor; and
6. Details of discussions with the respondent's family including his sister and his brother.
51 The management plan also set out the daily contact and structured activities to be carried out with the respondent for the first weeks of any supervision of him in the community.[36]
The respondent's personal circumstances52 The respondent is a Wongai man. He was born in Warburton and was raised in the Warakurna Aboriginal Community (Warakurna). The respondent has not been back to Warakurna for many years. His isolation from his community has been an ongoing problem so far as his management in the community is concerned.
53 The respondent is now 45 years old and has spent most of his adult life in prison, or subject to continuing detention under the DSO Act.
54 Until recently the respondent had two brothers. Sadly, both brothers passed away during the respondent's most recent period of incarceration. The respondent's older brother died in October 2020 and his other brother died in April 2021. The respondent was unable to attend his brothers' funerals. This has caused him significant grief.
55 The respondent has two sisters. One of his sisters, AB, is a positive support to the respondent. However, she lives in Warakurna. Consequently, the respondent's contact with her while he was in the community was limited to video calls which were arranged by Uniting WA.
The respondent's performance and progress while on the Supervision Order prior to being returned to prison56 I have already referred in broad terms to the nature of the two contraventions of the Supervision Order of which the respondent has been convicted. However, it is at this point necessary to refer to the facts of the contraventions in more detail.
57 The facts of the first of the respondent's contraventions, the contravention comprised of his breach of his curfew, were as follows.
58 At 6.00 pm on 11 July 2020 the respondent was at an address in Thornlie. Under the curfew condition and the Written Lawful Instruction the respondent was required to be at his designated residence from 6.00 pm until 6.00 am the next day.
59 Electronic Monitoring Officers from the Central Monitoring Station attempted to contact the respondent by ringing his mobile phone on multiple occasions. However, the respondent did not answer his phone.
60 At 6.55 pm officers from a security company attended the Thornlie address at which the respondent's electronic monitoring device indicated he was present. The security officers spoke to the respondent and told him to go home immediately.
61 At approximately 7.36 pm the respondent caught public transport to travel to his designated residence. The respondent arrived home at about 8.58 pm. Accordingly, the respondent was in breach of his curfew for approximately three hours.
62 On 13 July 2020 the respondent was arrested by officers from the Sex Offender Management Squad (SOMS) in relation to his curfew breach. He declined to participate in an interview.
63 The facts of the second of the respondent's contraventions, the contravention arising out of his use of cannabis, were as follows.
64 On 21 August 2020 the respondent was required by his CCO to provide a urine sample for analysis. The respondent provided the sample which was sent to PathWest for analysis.
65 The analysis results received from PathWest indicated a positive reading to cannabis of 121 micrograms per litre. The standard threshold is 15 micrograms per litre. The analysis results therefore revealed that the respondent used cannabis in the days leading up to the analysis.
66 On 28 August 2020 the respondent was arrested by officers from SOMS in relation to his cannabis use. He declined to participate in an interview.
67 The respondent was subject to weekly reporting obligations while under supervision in the community. He consistently reported as directed. On the whole his engagement was considered satisfactory. He was generally open and forthright regarding his activities and interactions. However, prior to his return to custody there was a decline in his transparency relating to his drug use and the formation of a relationship with a female.
68 Since the respondent was returned to prison on 28 August 2020 he has maintained regular and consistent phone contact with his Senior CCO. He has of his own volition contacted COMU by telephone on more than 15 occasions in order to maintain regular contact regarding his general wellbeing. The respondent has consistently upheld a minimum of monthly telephone contact with COMU which is a level of engagement that he has not previously demonstrated.
69 The respondent's treating psychologist is Mr David Summerton.
70 The respondent has engaged in 13 counselling sessions with Mr Summerton since his last review.
71 The respondent engaged in five face-to-face counselling sessions with Mr Summerton following his release into the community on the Supervision Order on 2 June 2021. The respondent engaged well in the sessions. The sessions generally focused on adjustment issues associated with the respondent's transition back into the community. In particular, discussions centred upon, among other things, the respondent's need to avoid intoxicated individuals, assertive communication with relevant stakeholders responsible for the respondent's care, social supports, cultural issues, risk reduction strategies, managing boredom, financial difficulties, pornography use, painting, and grief and loss.
72 During his time in custody as a result of his most recent contraventions the respondent has engaged in a number of counselling sessions with Mr Summerton. The sessions have focused in the main on the respondent's grief issues relating to the passing of his family members including his brothers, and his inability to attend any of their funerals. During these sessions the respondent attributed his most recent contravention of the Supervision Order to him having come into contact with his brother who informed him that he had a terminal illness. The respondent described this news as significantly distressing for him and that this drew him towards antisocial peers which increased his susceptibility to the use of substances.
73 Mr Summerton is of the view that although the respondent remains an active participant during psychological counselling this form of intervention is peripheral to the respondent's ability to adjust to the community and to his overall management. Mr Summerton considers that insight oriented psychological counselling continues to play a limited role in the respondent's ongoing risk management and that the focus of sessions has primarily remained welfare based. In Mr Summerton's view the respondent continues to demonstrate difficulty disclosing and reflecting on personal issues with a preference for reporting that he is coping well when that may not be the case.
74 Mr Summerton maintains the position that he held following the respondent's last review, specifically that the respondent's ability to adapt to life in the Perth metropolitan area remains an enduring challenge in the context of him being a man from a traditional remote Aboriginal community whose first language is not English, who has minimal support in the metropolitan area, and whose risk management strategies depend primarily upon avoidant coping. Mr Summerton considers that the respondent would benefit from a holistic risk management plan that includes engagement with a culturally safe mentor alongside ongoing supportive supervision from COMU, Uniting WA involvement and Through‑Care drug and alcohol counselling. Mr Summerton considers that associated support may serve to further ameliorate the significant feelings of isolation and loneliness that underpin the respondent's susceptibility to being drawn towards those from country but are typically engaged in a lifestyle that is not conducive to effective risk management.
75 While the respondent was in the community he was subjected to urinalysis testing on a regular and random basis. Up until the time that the respondent committed the most recent of his contravention offences all his urinalysis results were negative to alcohol and illicit substances.
76 At the time of the detection of cannabis in the respondent's system, the respondent did not admit to having used cannabis. However, during an interview with Ms Hill on 18 June 2021 the respondent admitted to using cannabis twice on one occasion. He also admitted to using a substance that had not been prescribed to him. He stated that he had been given two tablets which he believed to be Seroquel and which he used to help him sleep.
77 Prior to being returned to prison the respondent was engaged with Uniting WA. His engagement was primarily focused on reintegration. He was living in a Uniting WA property. However, on being returned to prison he relinquished this property to avoid accruing unnecessary debt.
78 The respondent attended Wungening Aboriginal Corporation (Wungening) for substance abuse counselling. He attended four sessions, although his ability to attend sessions was affected by his remand in custody between 13 July 2020 and 11 August 2020.
79 The respondent was issued with two warnings relating to him contravening the Supervision Order by entering the one exclusion zone for very brief periods of time on two separate occasions, once on 8 June 2020 and again on 15 June 2020. On each occasion that the respondent entered the exclusion zone he was on public transport (a bus). There was nothing to suggest that the respondent's conduct in entering the exclusion zone was intentional or risk related. Accordingly, both contraventions were dealt with by the issuing of verbal warnings.
The respondent's behaviour in prison since being placed on the Supervision Order[42]80 The time that the respondent spent in custody between 13 July 2020 and 11 August 2020 was without incident.
81 Since being returned to custody on 28 August 2020 the respondent has moved between metropolitan prisons and Eastern Goldfields Regional Prison (EGRP). He is currently housed in a metropolitan prison.
82 During his time at EGRP the respondent was involved in two incidents.
83 On 13 October 2020 the respondent was waiting to use the telephone to gain information regarding his brother's funeral. He became frustrated by having to wait to use the phone and punched a prisoner that was on the phone. The other prisoner was not injured. The respondent has been charged with an offence as a result of this incident. The charge is yet to be dealt with.
84 On 25 November 2020 the respondent was informed that his application to attend his brother's funeral had been unsuccessful. On receiving this information he threw mop buckets at the windows of the dayroom of his unit. He then directed the mop buckets towards staff. He was restrained by the use of handcuffs. The punishment imposed for his conduct was the loss of three days gratuities.
85 While in prison the respondent has been employed intermittently but has in the main been unemployed. More recently the respondent has been employed at EGRP as a unit cleaner.
86 The respondent has been subjected to urinalysis testing on three occasions while in custody (28 May 2020, 19 September 2020 and 15 June 2021). The testing has produced negative results for illicit substances.
87 The respondent has received monthly visits from his Uniting WA case worker. He has also received two visits from his sister, AB, on 14 May 2021 and 29 May 2021.
88 Dr Wynn Owen's report reveals the following.
89 Dr Wynn Owen interviewed the respondent at Casuarina Prison. The respondent appeared open and co‑operative during the interview.
90 The respondent, when asked, said that he would abide by all conditions of a supervision order.
91 The respondent showed a good understanding of, and engagement with, his release plans. It was clear that he understood the parties who would be involved in his supervision in the community (COMU, FPS, Uniting WA and Wungening). He was open to additional support being provided to him, including mentoring, if this becomes available. He expressed a willingness to work with people of the Noongar nation which is something that he has previously had issues with.
92 The respondent indicated to Dr Wynn Owen that he was aware of his potential housing options. Although he expressed a preference for returning to country (the region around Warakurna in central Australia) he also indicated that he would be prepared, in the interim, to live in the Perth metropolitan area.
93 The respondent described to Dr Wynn Owen his plans for coping with stress. He said that if he became emotionally stressed he would talk to someone and 'have a yarn' with a peer. He said that he had successfully used this strategy in prison. He also said that if this was not possible and no peers were available for him to talk to in the community, he would talk to 'Dave or Trudy' (that is, his psychologist Mr Summerton and his CCO Ms Hill).
94 The respondent was positive about his ongoing contact with Mr Summerton. He was, however, vague about the content and intent of his sessions with Mr Summerton. He initially stated 'we sit and talk about football' although when questioned further he indicated that he also discussed his mood and substance use with Mr Summerton.
95 The respondent's statements to Dr Wynn Owen in relation to avoiding the use of illicit substances were unchanged from when Dr Wynn Owen had previously assessed him. The respondent asserted that he would refuse offers of alcohol or illicit substances and would walk away. The respondent cited a number of occasions, which cannot be verified, when he had done this during his most recent time in the community. In Dr Wynn Owen's view, walking away from offers of alcohol or illicit substances is something that the respondent has demonstrably been unable to consistently achieve in the recent past. In Dr Wynn Owen's view, the respondent's assertion that this is what he will do if he is offered alcohol or illicit substances indicates limited self‑awareness.
96 During the interview the respondent made comments suggesting that he had received a 7-month sentence 'for cannabis use' which he considered to be excessive. These statements suggested that the respondent was not considering the contravention in the context of placing himself in a high risk situation but rather as an individual instance of using a particular illicit substance. In Dr Wynn Owen's view this is one indicator of the respondent's level of self‑awareness in relation to substance use and its relationship to his past serious offending.
97 Dr Wynn Owen's psychiatric diagnoses for the respondent are Substance Use Disorder (alcohol, cannabis and methylamphetamine) currently in remission and Antisocial Personality Disorder.
98 Dr Wynn Owen undertook an assessment of the risk of the respondent committing further sexual offences. In doing so he made use of two risk assessment tools, the Static‑99R and the Risk for Sexual Violence Protocol (RSVP).
99 The respondent's Static‑99R score placed him in the 'Well Above Average Risk' group for reoffending. Offenders in the Static-99R general cohort (routine sample) with the same score as the respondent have a 27.2% likelihood of committing a sexual offence within five years of being released from prison. Offenders in the High Risk High Needs group with the same Static-99R score as the respondent have a 30.7% likelihood of committing a sexual offence within five years of being released from prison and a 42.8% likelihood of committing a sexual offence within 10 years of release. The High Risk High Needs sample is made up of offenders identified as high risk through being considered for, or subject to, indefinite sentencing relating to their sexual offending, those with a long duration of offending notwithstanding intervention, those who have received intensive criminogenic intervention, and those with a major mental illness.
100 According to Dr Wynn Owen, the Static‑99R results should be considered in light of the fact that the lifetime likelihood of an adult male committing a sexual offence is less than 1% and that the average risk of a male convicted of any sexual offence committing a further sexual offence is approximately 10%.
101 In making use of the RSVP Dr Wynn Owen identified a number of risk factors present in the respondent's case including the following:
1. Chronicity of sexual violence, escalation of sexual violence and the use of both physical and psychological coercion;
2. Problems with self‑awareness: This risk factor is moderating and although it is still present the respondent has gained some awareness of not only the risk posed by intoxication but the factors that may lead to his decision to become intoxicated such as negative emotions resulting from isolation and loss, difficulty refusing substances offered and excessive amounts of unstructured time;
3. Problems with stress and coping: The respondent acknowledges that living in Perth results in feelings of loneliness that he finds difficult to deal with. He acknowledges that losses, particularly when he is isolated by distance and/or a curfew, cause him distress and, in conjunction with poor refusal skills, has resulted in him using substances;
4. Problems with substance abuse: The respondent's sexual offending and much of his violent general offending is strongly associated with this risk factor;
5. Problems with intimate and non-intimate relationships: The respondent's lack of companionship and intimacy and consequential loneliness and isolation when dealing with the stresses of community reintegration and additional stressors such as grief and loss are directly related to the respondent's breaches of the Supervision Order;
6. Problems with employment;
7. Non-sexual criminality: A history of general criminality is associated with an increased future sexual offending risk and reflects an antisocial lifestyle;
8. Problems with planning: This risk factor remains present. The respondent breached the conditions of the Supervision Order within a very short time of being released notwithstanding the existence of a structured management plan, and the preparation for release that he undertook with his CCO, his psychologist and Uniting WA; and
9. Problems with supervision: This risk factor remains present. The respondent attended appointments as required for the short time that he was in the community but did not report being stressed prior to his breaches and was unable to comply with the curfew. However, the respondent has proactively maintained engagement with his CCO since returning to prison and has also maintained engagement with his psychologist, both in person and by telephone. The respondent's proactive stance, particularly with his CCO, is a new and positive development which if sustained will improve manageability in the longer term and then potentially reduce reoffending risk.
102 In relation to the 'problems with planning' risk factor, Dr Wynn Owen notes that the respondent is currently putting efforts into planning for his release and engaging well with support providers in the monitoring team. He considers that the respondent's plan for release on this occasion is appropriate.
103 Dr Wynn Owen's opinion, based on his clinical assessment of the respondent, his consideration of the Static‑99R and RSVP findings and the respondent's recent history of placing himself in high risk situations when in the community, is that the respondent is at high risk of committing a serious offence. Dr Wynn Owen's opinion is derived principally from the respondent's history of serious offending while intoxicated, his substance abuse disorder and his antisocial personality.
104 In Dr Wynn Owen's opinion the respondent's current and recent dislocation from country and culture due to him being required to live in the Perth metropolitan area is a probable significant contributor to his current breaches of the Supervision Order. Nonetheless, Dr Wynn Owen notes that the respondent has not committed a sexual offence at any time when under supervision in the community despite having the opportunity to do so and despite a number of episodes of substance abuse.
105 Dr Wynn Owen notes that the medication disulfiram (Antabuse), a pharmacological aversion therapy approach to managing alcohol abuse, has in the past been recommended by the court for use by the respondent as a useful additional adjunct to his own strategies to avoid alcohol use. In Dr Wynn Owen's opinion this medication will not add to risk reduction in the immediate or longer term and, in the absence of current or recent evidence of physiological alcohol dependence, is not clinically indicated. Nor, in Dr Wynn Owen's opinion, are other more contemporary medications approved for use in addressing alcohol craving or withdrawal as the symptoms of alcohol dependence are not a feature of the respondent's presentation or factors in his sporadic substance use.
106 In Dr Wynn Owen's opinion the respondent currently presents as proactively preparing for release and is engaged with both the monitoring team and the non‑government providers that offer practical prosocial support. Notwithstanding this engagement, in Dr Wynn Owen's opinion the respondent will still face significant reintegration stress. He considers that social and cultural isolation are likely to again be significant contributors to the respondent's reintegration stress.
107 Dr Wynn Owen recommends the following in relation to the respondent:
1. The continuation of individual counselling with a psychologist;
2. Abstinence from alcohol and drugs;
3. Regular and random testing for alcohol and drugs;
4. Re‑engagement with the Wungening and other drug support services;
5. Mentoring to provide culturally secure and appropriate prosocial modelling; and
6. The implementation of the conditions recommended by COMU to address high risk situations (which Dr Wynn Owen has discussed with the respondent's Senior CCO and which he supports as being appropriate to mitigate the respondent's risk).
108 In his oral evidence Dr Wynn Owen maintained the material views and opinions expressed by him in his report.
109 In his evidence‑in‑chief Dr Wynn Owen gave the following supplementary evidence.
110 Although his overall assessment of the respondent's risk of reoffending has not changed, a number of the respondent's dynamic risk factors have moderated. He is 'impressed' with the respondent's ongoing and consistent maintenance of contact with his CCO and with the respondent's clear understanding of, and interest in, the community supports that may be available to him if he is released into the community. During his previous assessments of the respondent, the respondent had dismissed the idea of working with people of the Noongar nation because he is from a different part of the country. The respondent is now quite happy to have support from a person of the Noongar nation in relation to drugs and alcohol or mentoring. He thinks that these factors are positive evidence that the respondent understands the need for there to be a shift in his attitude towards any sort of supervision program that is offered to him. He considers that the respondent appears to be showing 'a consistent change such that the shift was maintained over a reasonable period of time'.[43]
111 Although the respondent's self-awareness is still lacking, he has noticed a minor improvement in this area.
112 In his view the respondent's ongoing contact with his CCO and supports since he has been in prison demonstrates the respondent's commitment to, and understanding of, the supervision process that he has not demonstrated previously. Therefore, although the 'problems with supervision' risk factor remains present, there may have been some improvement in this area, that is, an increasing awareness by the respondent of the need to adhere tightly to a supervision order.
113 It is unfortunate that the respondent did not take advantage of discussions with Mr Summerton when he found out that his brother was terminally ill. There is a pattern of the respondent struggling with these types of losses. The respondent is dislocated from his community and family and is not familiar with living within the metropolitan area. Therefore, when he is placed either in a prison or in the community, he is very isolated and finds it difficult to interact in such a way to seek support or help. A prison environment is not a place to develop help seeking skills.
114 The respondent's use of cannabis is relevant to his risk of re-offending in the sense that it is 'a step on an offending cycle pathway'.[44] The respondent's use of cannabis is something that reduces the likelihood of him being able to say 'no' to other substances, such as amphetamine or alcohol. Amphetamine or alcohol in particular are associated with an increased risk of the respondent offending. So use of cannabis is a step towards the respondent using other substances to assist him to deal with stress or distress.
115 In the present case the respondent's use of cannabis was discovered within a few days as a result of urinalysis testing. The respondent did not progress to alcohol or amphetamine use. This indicates that the Supervision Order was effective in that respondent's use of illicit substances was caught very early. If the respondent's use of cannabis had not been quickly discovered there is a chance that he would have continued to use cannabis and then 'stepped into other things'.[45] It is while the respondent is intoxicated with cannabis that he is more likely to say 'yes' to other substances. It is less likely that the respondent will use cannabis, stop using cannabis and then progress to using another substance such as amphetamines. The Supervision Order was effective to the extent that it resulted in a very early stopping of an offending cycle.
116 He believes that the respondent struggles to deal with the transition from prison where everything is highly structured to being quite isolated in the metropolitan community.
117 The respondent demonstrates an understanding of the link between him using alcohol and amphetamine and his offending. He knows there is a link although he is not able to explain the link in a sophisticated way.
118 There is no suggestion that alcohol and amphetamines cause sexual offending. It is more about their effect on the respondent's ability to inhibit his urge to do something.
119 The respondent still has poor refusal skills. He does find it difficult, particularly if there is persistence, to refuse offered substances. If the respondent is able to establish contact with people whose company he is enjoying he is less likely to refuse substances if they are offered to him for fear of his refusal causing them to disengage from him.
120 If possible the respondent should be released somewhere other than the metropolitan area. The respondent comes from a different culture and community. The dislocation which arises from the respondent being in Perth is one of the significant stresses that has led to a number of his contraventions over time. He believes there is a much greater likelihood of the respondent being successfully managed on a supervision order if he is placed in a location where he has a greater opportunity for contact with country, with family, and with his culture. However, his understanding is that there is no prospect of the respondent being able to be released on a supervision order in the north western or eastern regions of the State.
121 He is aware that Ms Hill has contacted a number of agencies with a view to obtaining mentoring support for the respondent but that a mentor is yet to be found. He hopes that if the respondent is released on a supervision order the efforts to locate a mentor will be ongoing, and that if a mentor cannot be found efforts will be made to source an alternative source structure for the respondent.
122 The support to be provided to the respondent must be culturally safe and appropriate. Mentoring is therefore ideal. Drug and alcohol support particularly provided by an Indigenous service or a service staffed by Indigenous persons would also be ideal.
123 Structure is one of the things that is a problem for the respondent. The respondent becomes lonely, isolated and stressed in the community, and has little structure during his day to day week. An increased amount of structure, involving the respondent being able to access leisure and social interactions, will enhance the likelihood of him being successfully managed on a supervision order.
124 He is aware that when the respondent was released on the Supervision Order Wungening was engaged. This demonstrated to him that that a more proactive approach to the respondent's supervision and management was being adopted.
125 He has read Dr Barbas's report. His interpretation of her report is that psychological counselling is peripheral to the respondent's criminogenic needs as opposed to his management. His understanding is that Dr Barbas found through her discussions with Mr Summerton that counselling was highly relevant to the respondent's management in that it assisted the respondent with problem solving and dealing with stress, provided the respondent with additional support in relation to abstaining from substance use, and assisted the respondent with working through grief. In his opinion it is important that the respondent continue with psychological counselling. While such counselling should be very practical, when the opportunities to address specific criminogenic needs arise they should be tackled as well.
126 At the end of examination-in-chief Dr Wynn Owen was asked whether in his opinion the respondent's high risk of committing serious sexual offences can be adequately managed in the community if the respondent is again released on the Supervision Order. In response to this question Dr Wynn Owen said the following:[46]
So my opinion on this relates to the periods of time since [the respondent] has been on supervision orders he has not committed any serious offence or sexual offence. And although he has breached and contravened the orders, those have been caught relatively early, as they are meant to do in terms of the prevention of or avoidance of high-risk situations. And overall, the situations earlier on in terms of contact with females, they have not reoccurred, and there is a good understanding, I believe, from the current treating forensic psychologist and the [indistinct] team is to [the respondent's] difficulty with coping with stress and then with loss [sic]. And these are all factors which help to recognise when he might be at risk, and the testing that has been undertaken and so on has picked up when he has used. So I'm of an opinion that, to date, the supervision order has reduced the risk of serious offending.
127 In cross-examination Dr Wynn Owen gave the following supplementary evidence.
128 Although, the respondent does not have a sophisticated understanding of the link between his offending and his use of alcohol and amphetamines, the fact that the respondent understands the connection between his use of these substances and the likelihood of him committing a future offence is a 'very positive thing'.[47]
129 He thinks that mentoring and ideally some indigenous supports around substance use would be really helpful for the respondent.
130 He believes that it would be useful for the respondent to have some structure on most days. He does not believe the structure has to be formal. He thinks that the structure could include informal social activity and mentoring. He thinks that it would be advantageous to the respondent if the respondent could be provided with opportunities to express himself (for example, by his paintings). He thinks that the respondent should be given the opportunity to meet people, to talk to people and to exercise his mind rather than to be lonely and bored. He agrees this is something that can be facilitated by the support structures which are in place under the Supervision Order.
131 During his most recent assessment of the respondent, the respondent did recognise that his breach of the Supervision Order by using cannabis was wrong. The respondent told him that he would now reach out to his CCO or Mr Summerton. These comments by the respondent are partly what sits behind his view that there is a positive change in the respondent's awareness of the support structures which are likely to be placed around him. He sees this as a positive. So while problems with supervision still exist, this risk factor appears to have moderated to a degree.
132 Dr Barbas's report reveals the following.
133 Dr Barbas interviewed the respondent via video conferencing to EGRP on 28 June 2021.
134 The respondent described his counselling with Mr Summerton in positive terms. The respondent also described his relationships with his Wungening drug and alcohol counsellor, his Senior CCO and his Uniting WA case worker in positive terms.
135 In reflecting on his time in the community the respondent stated that he enjoyed painting to pass the time. He further stated that he enjoyed getting out to meet people in the city particularly his family members. However, he added that it saddened him to see family and friends from country as this served to remind him of what he has missed out on over time.
136 The respondent stated that he had kept busy while in the community by attending appointments with COMU, Uniting WA, FPS, SOMS and Wungening.
137 The respondent alluded to a romantic relationship with a friend by the name of Paula who lived in Fremantle. He stated that he enjoyed talking to Paula and that he had originally met her in Warakurna. He stated that he had not entered her home, that she had not visited his home and that they were never intimate. He stated that he had made Paula aware that he was not permitted to have a woman in his house because of the terms of the Supervision Order. He stated an intention to further develop his relationship with Paula, indicating that he would like to settle down with a 'good woman' and start a family.
138 The respondent reported his awareness that he was by the terms of the Supervision Order restricted from engaging with intoxicated individuals and young people. The respondent stated that he felt a significant amount of pressure from others in the community to use substances and acknowledged that he found this difficult to cope with. He stated that he would typically walk away but noted that a negative consequence of him doing so was that others in the community would ostracise him, leaving him feeling isolated. He added that this issue made it very hard for him to meet people, socialise and access support.
139 The respondent told Dr Barbas that on the day of his most recent contravention offence he had met up with his brother for the first time in 10 years. He said that his brother appeared very emaciated and physically unwell and informed him that he had a terminal illness. He said that he felt very stressed about his brother's health. He said, in effect, that he had sought support from a culturally safe but negative peer group and had used cannabis to assist him to cope.
140 In Dr Barbas's opinion the respondent's treatment needs remain unchanged from his last review and relate to substance use, sex and violent offending, cognitive distortions, relationship instability, risk management, coping and peer refusal, grief and loss, independent living, lack of purpose, isolation and a need for connection/companionship. She considers that it remains unlikely that the respondent will make further gains in these areas through individual counselling given the limited role that insight oriented psychological intervention plays in the respondent's ongoing risk management. She considers that it is evident that psychological intervention remains peripheral to the respondent's ability to adjust to the community in the context of cultural barriers that preclude him from meaningful engagement and culturally informed risk management. More specifically, in her view the respondent's position as a traditional Aboriginal man from a remote community, whose first language is not English and who lacks access to culturally appropriate and prosocial support, continues to present as the central factor in 'mitigating his successful adjustment to the community'.
141 The respondent was able to describe an appropriate understanding of consent and could articulate that managing boredom, maintaining prosocial relationships and avoiding negative peers were central factors to his successful risk management in the community. Furthermore, he demonstrated continued gains in his capacity to examine and disclose thoughts and behaviours during treatment and supervision. In discussing his offending behaviour the respondent appreciated the detrimental effect of substance abuse on his behaviour and identified this factor as inherent in his prior sexual and violent offending.
142 In Dr Barbas's view the respondent's most recent contravention of the Supervision Order occurred in the context of significant experiences of grief and loss. She considers that the respondent's associated behaviour within the prison setting reflects frustration at both peers and staff in an attempt to manage feelings of grief. She considers that similarly the respondent's use of substances in the community reflects an ineffective attempt by him to cope after being informed of his brother's terminal illness. She considers that it is also apparent that cultural barriers, communication problems, loneliness/isolation, a lack of purpose and a need for connection and companionship also contributed to the respondent's problematic management of his feelings of stress, grief and loss. She considers that the respondent subsequently sought support from countrymen who typically engage in a lifestyle that is not conducive to effective risk management which in turn resulted in the use of substances to cope.
143 In Dr Barbas's view the respondent holds a basic understanding of the requirements of a supervision order and his most recent contravention does not appear to have resulted from a lack of understanding of his risk issues. Rather, in her view it is more likely that the respondent's substance use resulted from his experience of significant stressors during his initial transition and a failure to adequately manage them. In her view the brevity of the respondent's recent release suggests ongoing difficulty in the respondent's ability to implement and maintain appropriate behaviour changes and comply with the Supervision Order when challenged by stressors.
144 If the respondent is placed on a continuing detention order Dr Barbas recommends that treatment comprised of ongoing welfare based support continue on a monthly basis until closer to the next review date. Dr Barbas makes this recommendation based on her view that it is unlikely that the respondent will make further gains in the custodial setting because in such a setting the respondent will be unable to apply learned skills in a less restrictive setting. She considers that it may be more helpful for the respondent to be detained at EGRP, if he wishes for this to occur, because this will facilitate his access to culturally appropriate support and allow for the development of meaningful relationships with those that are culturally similar to him, including those that may identify as countrymen from his community. She considers that this systemic approach is more likely to result in improved outcomes for the respondent than if he is placed in a metropolitan prison for the purpose of facilitating face-to-face psychological intervention which appears to have a limited role to play in achieving stability and appropriate management of the respondent's risk.
145 In Dr Barbas's opinion, if the respondent is released on a supervision order he would benefit significantly from involvement with culturally safe support services, including a mentor. In Dr Barbas's opinion the respondent would also benefit from substance use counselling to assist him with practical support in avoiding high risk situations in the community, processing feelings of grief and loss, and providing him with a sense of connectedness to his country, culture and community.
146 Dr Barbas recommends that the respondent's engagement in psychological intervention with FPS should not take the place of his participation in other supportive interventions and should be peripheral and consultative and help to inform other intervention and case management strategies. Dr Barbas recommends that the respondent be supported to obtain employment, either paid or voluntary, in order to assist him to develop a sense of purpose and opportunities for prosocial support, and to reduce idle time in the community. Dr Barbas recommends that the respondent's interest in painting should be supported to further facilitate a sense of connectedness to country and a sense of purpose.
Email incorporating information from Dr Dias147 The previously referred to email incorporating information from Dr Dias[48] reveals that Dr Dias has been in recent contact with Mr Summerton and that Mr Summerton has informed her of the following:
1. He has continued to see the respondent irregularly and he will resume more regular contact with the respondent if the respondent is released;
2. He considers that counselling is relatively peripheral in the respondent's overall management; and
3. His last two contacts with the respondent have been preparatory for the respondent's release and he will see the respondent through an adjustment phase following the respondent's release.
Emails incorporating information from Ms Goode148 The previously referred to emails incorporating information provided by Ms Goode reveal the following.[49]
149 The respondent has been deemed unsuitable to live in private rental accommodation.
150 There is a residence under the Uniting WA Supported Accommodation Program that will be available to the respondent (proposed address) if he is permitted to remain on the Supervision Order in its current form or in an amended and/or extended form. The respondent has not previously lived at the proposed address. However, he has previously lived in a nearby suburb and has consequently previously used the shopping centre that is situated closest to the proposed address as well as the bus routes to the East Perth Adult Community Corrections Centre.
151 The Western Australian Police have carried out a Desktop Spatial Analysis of the proposed address. The analysis did not identify any issues that would stop the respondent occupying the proposed address.
152 Ms Hill is the respondent's current CCO.
153 Ms Hill's report reveals the following.
154 If the respondent is released on a supervision order it is intended that he will resume his participation in the Uniting WA program.
155 Uniting WA has confirmed its willingness to support the respondent with budgeting by providing him with financial counselling and education. However, given the demand for this form of assistance the respondent would need to attend all scheduled appointments with any failure to do so likely resulting in him being removed from the waitlist. The respondent has expressed a willingness to access financial support if he is released into the community.
156 In terms of voluntary work, all participants in the Uniting WA program are given the opportunity to engage with Second Bite community food support service subject to availability and Second Bite's own practices and policies. As Second Bite is independent of Uniting WA, the final decision as to whether the respondent can perform voluntary work for them rests with them. The respondent's suitability for, and acceptance into, Second Bite's voluntary work will not be confirmed until such time as the respondent is in the community. Additionally, Second Bite can only facilitate one day's work per week due to other participants being high risk serious offenders.
157 In relation to an Aboriginal mentor, Uniting WA has advised Ms Hill that at this point in time there is not currently anyone within their service who could provide this type of support to the respondent.
158 The respondent is currently on the waitlist for housing with the Department of Communities, Housing. He has been on this waitlist since 2017. However, he is not likely to be offered accommodation for a minimum of five years.
159 On 5 July 2021 Ms Hill made contact with the intake officer from Yorgum Healing (Yorgum) to ascertain the supports that they could provide to the respondent. Ms Hill made specific inquiries about Yorgum's ability to provide culturally appropriate support to the respondent for grief and loss, and to address issues pertaining to his displacement from country. Yorgum confirmed that the respondent would be suitable and could be referred to the service. However, the referral process cannot commence until the respondent is actually released into the community. Further, the estimated time from referral to commencement with Yorgum can be up to six months.
160 On 6 July 2021 Ms Hill made inquiries with Wungening to ascertain if the respondent could resume his substance abuse counselling with Wungening on his release. Ms Hill was informed that the respondent's former substance abuse counsellor was no longer with Wungening and that as a result the respondent would likely need to be again referred.
161 On 6 July 2021 Ms Hill made contact with the manager of the Moorditj Yarning Aboriginal Program. The manager confirmed that he could provide culturally appropriate counselling to the respondent if the respondent is released into the community. The manager informed Ms Hill that while he is not Aboriginal he has worked with the Aboriginal community for approximately 13 years. He advised that he would be able to meet with the respondent in the community to gauge the respondent's wishes in terms of receiving support and ascertain if this could be a positive connection.
162 In Ms Hill's view, although the respondent has expressed motivation to gain employment he will, given his current and ongoing physical health and minimal employment history, encounter difficulties obtaining employment. However, if the respondent is released various employment options will be explored.
163 If the respondent is released on a supervision order he will be subject to Global Positioning System (GPS) monitoring. However, given the limitations associated with GPS monitoring and the respondent's offending profile and poor previous compliance, Ms Hill recommends that there be a requirement as part of any supervision order that the respondent outline his proposed future movements verbally to his supervising CCO. Ms Hill considers that this would allow for pre-planning in relation to the respondent's movements and the exploration of his decision making, and that it would also provide a means of monitoring the respondent's structured time versus his unstructured time. Ms Hill considers that discussion around the respondent's movements would also assist the respondent in taking responsibility for behaviours that could be seen as mirroring his previous contraventions and allow for dialogue around this in advance. Although conditions could be proposed requiring such discussions, Ms Hill considers that it would be more appropriate for the respondent's supervising CCO to utilise the discussions as a case management tool.
164 Given the correlation between the respondent's history of offending, non-compliance and illicit substance use, frequent and random urinalysis of the respondent would occur if he is released on a supervision order. The conditions forming part of any supervision order could also allow for police to facilitate breath analysis at both the respondent's home and in the community.
165 The respondent has expressed a desire to engage in substance abuse counselling within the community to assist in developing a relapse prevention plan which will include identifying high risk situations and his triggers. Accordingly, the respondent would continue to engage with his psychologist to address his substance abuse related issues. If deemed necessary counselling for this purpose could be outsourced to an appropriate service.
166 Given there have been no identifiable changes in the respondent's level of risk, nor diversification of his sexual reoffending, Ms Hill does not recommend that any further conditions be incorporated into the Supervision Order if the respondent is again released. However, she recommends some modernisation of the conditions of the Supervision Order. The recommended conditions of the Supervision Order as 'modernised' are set out in Annexure 1 to these reasons. The only substantial difference between the 'modernised' recommended conditions and the current conditions of the Supervision Order is that there is a new proposed condition 25 which provides that the respondent is not to breach any provision of, or commit any offence under, the Restraining Orders Act 1997 (WA).
167 Ms Hill gave the following supplementary oral evidence.
168 Although at this point a mentor for the respondent has not been identified alternatives have been explored as outlined in her report. If the respondent is released referrals will be undertaken to connect him with appropriate cultural support. Potential leisure activities for the respondent have also been explored that would enable him to engage in gardening, painting and leisure activities with cultural support. Efforts to locate a mentor or mentoring service for the respondent are continuing.
169 If the respondent is released he will be referred to Wungening for substance abuse counselling. However, the respondent has also expressed a recent interest in engaging with Alcoholics Anonymous.
170 Although she recommends that if the respondent is released he should be required to outline his proposed future movements verbally to his supervising CCO, it is not her recommendation that this requirement be incorporated as an additional condition of the Supervision Order. Following her consultations with Mr Summerton and the respondent, it has been determined that the appropriate approach would be for the respondent's CCO to be able to require the respondent to outline his proposed movements as a case management tool. The use of this case management tool would be more about structuring the respondent's time, engaging with him, and assisting him with better planning.
Analysis and decision171 The respondent has been convicted of the two contravention offences. I am therefore, for the purposes of s 55(1) of the Act, satisfied on the balance of probabilities that the respondent has contravened conditions of the Supervision Order, specifically conditions 4, 28 and 29.
172 Given that I have found that the respondent has contravened conditions of the Supervision Order, the question that remains for my determination is whether the Supervision Order should be rescinded and a continuing detention order made in relation to the respondent, or whether the respondent should be permitted to remain on the Supervision Order either in its current form, or in an amended and/or extended form. As I have already pointed out, in deciding this question the paramount consideration is the need to ensure the adequate protection of the community.[50] Moreover, and as I have also already pointed out, I can only make an order permitting the respondent to remain on the Supervision Order in its current form or in an amended and/or extended form if the respondent satisfies me on the balance of probabilities that he will substantially comply with the standard conditions of the order.[51]
173 The applicant does not submit that the respondent has failed to prove on the balance of probabilities that he will substantially comply with the standard conditions specified in s 30(2)(a) - s 30(2)(c) and s 30(2)(e). The applicant does, however, submit that the respondent has failed to prove on the balance of probabilities that he will substantially comply with the standard conditions specified in s 30(2)(d), s 30(2)(f) and s 30(2)(g), although with respect to s 30(2)(g) the applicant's counsel acknowledged that the position taken by the applicant was 'probably marginal'.[52]
174 The respondent submits that he has discharged his onus of proving on the balance of probabilities that he will substantially comply with all the standard conditions.
175 While in the community the respondent complied with the supervision requirements of the Supervision Order. He consistently reported as directed. His engagement was satisfactory. Further, since being returned to prison he has maintained contact with his Senior CCO and the COMU. In these circumstances I am satisfied on the balance of probabilities that if the respondent is released into the community on the Supervision Order, or an amended and/or extended version thereof, he will substantially comply with the standard conditions specified in s 30(2)(a) - 30(2)(c) and s 30(2)(e) of the Act.
176 With respect to s 30(2)(g), the essence of the applicant's submission is that the respondent's recent breach of the curfew requirement of the Supervision Order gives rise to 'concerns about whether he would also substantially comply' with the requirement that he be subject to electronic monitoring.[53] I do not accept this submission. When the respondent has been in the community on supervision orders he has been subject to electronic monitoring. While subject to electronic monitoring he has not tampered with his electronic monitoring equipment or indicated an intention to tamper with his electronic monitoring equipment or raised any objection to being subject to electronic monitoring. In these circumstances I am satisfied on the balance of probabilities that if the respondent is released into the community on the Supervision Order, or an amended and/or extended version thereof, he will substantially comply with the standard condition specified in s 30(2)(g) of the Act.
177 I turn to the standard condition specified in s 30(2)(d) which, relevantly for present purposes, is that the respondent be under the supervision of a CCO and comply with any reasonable direction of the CCO including a direction imposing a curfew.
178 In support of its submission that the respondent has failed to prove that he will substantially comply with the standard condition specified in s 30(2)(d), the applicant points to the fact that the respondent contravened the curfew requirement of the Supervision Order within approximately six weeks of being released on the Supervision Order. The applicant submits that the respondent's contravention of the curfew requirement within such a short period of time of being released on the Supervision Order, when viewed in light of the respondent's extensive history over the years of contravening requirements of supervision orders, prevents me from concluding that the respondent has proved on the balance of probabilities that he will substantially comply with the standard condition. The applicant submits that these factors must 'give [me] cause for concern and doubt' as to whether the respondent will comply with the standard condition in the future.[54]
179 It needs to be borne in mind in this context that the imposition on the respondent of a curfew is a means to an end not an end in itself. The curfew is imposed because it is accepted that requiring the respondent to remain at his approved residence during night-time hours will reduce the risk of him committing a serious sexual offence. It is for this reason that the respondent's ability to substantially comply with a curfew requirement is of importance.
180 Prior to his contravention of the Supervision Order's curfew requirement, the respondent had contravened the curfew requirement of a supervision order on one other occasion. This earlier contravention occurred on 4 November 2017 when the respondent was in the community subject to a supervision order for the second time. His contravention on this occasion was associated with, and an inevitable consequence of, his attendance at the park near the corner of Wellington and Pier Streets in Perth in contravention of the Written Lawful Instruction that had been given to him on the previous day. To put it another way, the respondent's contravention of the curfew requirement was not a 'stand-alone' contravention but rather a contravention that necessarily occurred as a result of the more serious contravention comprised of him attending the park and drinking alcohol with others in contravention of the Written Lawful Instruction.
181 So far as the respondent's recent curfew requirement contravention is concerned it is, I think, important to bear in mind the actual circumstances of the contravention. The address in Thornlie at which the respondent was located was, I am told by the respondent's counsel without any dispute from the applicant's counsel, the home of family members with whom the respondent wanted to spend time. Further, although the respondent did not return to his residence until around 8.58 pm, it took him approximately one and a half hours to make his way home on public transport. Accordingly, for a significant portion of the time that the respondent was in breach of his curfew, he was actually in the process of making his way home in accordance with the instruction given to him by the security officers. In short, although the respondent's most recent curfew requirement contravention was by no means insignificant, it does not appear to have been the result of any sinister intent on his part. Nor does it appear that the respondent attempted to avoid making his way back to his residence once he was directed to return home by the security officers.
182 Since his return to prison the respondent has proactively maintained engagement with his CCO and has also maintained engagement with his psychologist. Further the respondent has, according to Dr Wynn Owen, demonstrated a clear understanding of, and interest in, the support structures that will, if he is again released, be available to him. In Dr Wynn Owen's opinion, the respondent's consistent engagement with his CCO and his psychologist since being returned to prison and his expressed increased understanding of, and interest in, the supports that will be available to him if he is released, suggest that the respondent now has an increased awareness of the need to adhere tightly to the conditions of a supervision order as well as an increased commitment to doing so. In Dr Wynn Owen's opinion, although the respondent will still experience problems with stress and coping if released into the community, his demonstrated awareness of the support structures that are likely to be placed around him is a positive development which has to some degree moderated the risk factor comprised of his problems with supervision.
183 The respondent's history of contravening the requirements of supervision orders and his recent contravention of the Supervision Order's curfew requirement necessarily give rise to some concern as to whether he will comply with a curfew requirement if he is released on the Supervision Order or an amended and/or extended version thereof. However, when I take into account the particular circumstances of the respondent's most recent curfew requirement contravention and Dr Wynn Owen's opinion to the effect that the respondent has since being returned to prison developed an increased awareness of the need to adhere tightly to the conditions of a supervision order, I am satisfied on the balance of probabilities that if the respondent is released into the community on the Supervision Order, or an amended and/or extended version thereof, he will substantially comply with the standard condition specified in s 30(2)(g) of the Act, including any direction imposing a curfew. That is, I am, for the reasons I have stated, satisfied that the respondent will substantially comply with the standard condition specified in s 30(2)(g) of the Act in a manner and to an extent that is consistent with, and will enable, the attainment of the general object of the Supervision Order and the Act.
184 I turn finally to the standard condition specified in s 30(2)(f), specifically that the respondent not commit a serious offence during the period of the Supervision Order. A serious offence for the purposes of s 30(2)(f) includes offences involving the non-consensual sexual penetration of a female, that is, offences of the type committed by the respondent.
185 The applicant acknowledges that the respondent has not committed a sexual offence on any of the occasions that he has been in the community subject to a supervision order. Further, the applicant accepts, in light of the evidence given by Dr Wynn Owen, that the respondent's use of cannabis does not of itself increase his risk of offending.
186 The applicant submits, in substance, that the respondent's past contraventions of supervision order conditions prohibiting him from using drugs and alcohol, and the respondent's recent contravention of the Supervision Order comprised of his use of cannabis, indicates that there is a material risk that if the respondent is released on the Supervision Order or an amended and/or extended version thereof he will again resort to cannabis use. The applicant submits that if the applicant does resort to cannabis use this might lead him to engage in other 'risky' behaviours (such as alcohol and/or methylamphetamine use) and that these other risky behaviours may in turn lead to him committing a serious sexual offence.[55] Accordingly, the applicant submits, the respondent has failed to prove on the balance of probabilities that he will, if he is again released on the Supervision Order or an amended and/or extended version thereof, substantially comply with the standard condition that he not commit a serious offence.
187 It is of obvious importance to remember that the respondent is not subject to the Act because he has a substance abuse problem. He is subject to the Act because of his high risk of committing serious sexual offences. The importance of the respondent complying with conditions prohibiting him from using substances must be understood in this context.
188 The respondent's most recent contravention of the Supervision Order comprised of his use of cannabis demonstrates that when he was released into the community he was once again, within a short period of time of being released, unable to comply with a condition that he not use drugs. He was unable to comply with the condition despite the more structured and proactive approach that was taken to his management, and despite his knowledge that illicit substance use is a risk factor for him. It is true that the respondent's resort to cannabis occurred against the background of his distress on discovering that his brother was terminally ill. However, the respondent will always be faced with stressors when he is in the community, at least when he is in the metropolitan area, including loneliness, social isolation and peer pressure. In short, and as stated by Dr Barbas, the brevity of the time that the respondent spent in the community before contravening the Supervision Order suggests that he will have ongoing difficulties in complying with at least some of the requirements of the Supervision Order when faced with stressors.
189 Notwithstanding the matters referred to in the previous paragraph there are a number of other matters which, taken in combination, cause me to be satisfied on the balance of probabilities that if the respondent is released on the proposed amended version of the Supervision Order he will comply with the condition not to commit a serious offence. The matters which cause me to be so satisfied are as follows.
190 First, the respondent has not, on the four occasions over the past five years that he had been released into the community on supervision orders, committed a sexual offence. He has not committed a sexual offence despite having had opportunities to do so and despite a number of his supervision order contraventions involving substance use.
191 Second, although the respondent's most recent contravention of the Supervision Order involved him using cannabis on one occasion he did not, having used the drug, progress to engaging in other risky behaviours. More specifically, the respondent did not, having used cannabis, then progress to using substances that are more closely connected to his past offending behaviour (alcohol and/or amphetamines) and which, if consumed by him, increase the risk of him committing sexual offences.
192 Third, the respondent's use of cannabis was, due to the existence and implementation of the random urinalysis condition contained in the Supervision Order (condition 42), quickly detected by those responsible for his management. The respondent's use of cannabis was detected within days of him using the drug and before he had any real opportunity to continue to use the drug and perhaps, to use Dr Wynn Owen's phraseology, 'step into other things' and hence progress along 'an offending cycle'.[56]
193 Fourth, and as noted by Dr Wynn Owen, the respondent's contraventions of the Supervision Order did not, in contrast to his earlier contraventions, involve contact with potentially vulnerable females.
194 Fifth, the respondent, if he is released on the proposed amended version of the Supervision Order, will be subject to a high level of control and supervision. The 58 proposed conditions are stringent and extensive. They do directly address the respondent's risk factors as disclosed by the evidence to which I have referred. The conditions are such that they will, in my opinion, enable those responsible for supervising, managing and monitoring the respondent to detect at an early stage if there are any signs of the respondent relapsing into behaviours that impact on his risk of reoffending.
195 Sixth, the conditions of the proposed amended version of the Supervision Order will, in accordance with the recommendation made by Dr Wynn Owen, enable those responsible for the respondent's supervision and management to facilitate his reintegration into the community by providing him, at an early stage following his release, with opportunities to engage in activities of interest to him in a culturally supportive setting. The provision of such opportunities to the respondent will go some way to increasing the amount of structure he will have in his life on a day to day basis which should in turn reduce the extent to which he will experience stress arising from feelings of loneliness, isolation and boredom.
196 Seventh, although the COMU, despite its best efforts, has to date been unable to locate an Indigenous mentor for the respondent, other alternatives have been explored and if the respondent is released referrals will be made to agencies with appropriate cultural supports such as Yorgum, Wungening and Moorditj Yarning Aboriginal Program. Further the COMU will, if the respondent is released, continue with its efforts to locate an Indigenous mentor for the respondent.
197 Eighth, the conditions of the proposed amended version of the Supervision Order will enable those responsible for the respondent's management and supervision to require him to engage in substance use counselling with a culturally appropriate agency (for example, Wungening) or any other agency of the respondent's choosing.
198 Ninth, the respondent has a good awareness of the link between his offending and his substance use, and the factors that may lead to him making a decision to become intoxicated.
199 Tenth, the respondent has indicated a desire to engage in substance abuse counselling in the community to assist him to develop a relapse prevention plan. He has also expressed an interest in attending Alcoholics Anonymous.
200 Eleventh, and as I have already referred to in the context of dealing with the standard condition specified in s 30(2)(d), the respondent's consistent and proactive engagement with his psychologist and his CCO since being returned to prison suggests an increased understanding of, and interest in, the supports that will be available to him if he is again released on a supervision order. The respondent's consistent and proactive engagement with his psychologist and his CCO since being returned to prison will, if sustained, improve the respondent's manageability in the longer term and consequently potentially reduce his risk of reoffending.
201 Twelfth, Dr Wynn Owen's opinion is that the release of the respondent on the Supervision Order has, to date, reduced the respondent's risk of serious offending.
202 It is the combined effect of the above matters that leads me to conclude that the respondent has, despite his history and his contraventions of the Supervision Order, proved on the balance of probabilities that he will, if released on the proposed amended version of the Supervision Order, comply with the standard condition that he not commit a serious offence.
203 Even though I have found that the respondent will substantially comply with the standard conditions of the proposed amended version of the Supervision Order, I still need to consider if despite my finding there are circumstances which cause me to fail to be satisfied that releasing the respondent on the order will ensure adequate protection of the community.
204 As was recognised by Quinlan CJ in The State of Western Australia v Yates, the ideal approach would be to release the respondent on a supervision order in regional Western Australia. The result of being able to adopt such an approach would be that factors that have now repeatedly contributed to the respondent's inability to refrain from relapsing into alcohol and drug use, such as loneliness, social isolation, boredom and a lack of cultural supports would, if not fall away, be reduced in significance. Unfortunately, there is no indication that releasing the respondent on a supervision order on the condition that he reside in a suitable regional location is going to become a realistic option for the respondent in the foreseeable future.
205 In The State of Western Australia v Yates Quinlan CJ decided that the inability to release the respondent on a supervision order in regional Western Australia did not mean that the respondent could not be adequately managed in the community, or that the community could not be adequately protected by releasing the respondent on a supervision order that required him to live in the metropolitan area. I am of a similar view.
206 In summary, and for the reasons that I have given for deciding that the respondent has proved on the balance of probabilities that he will substantially comply with the standard conditions of the proposed amended version of the Supervision Order, I am satisfied that releasing the respondent on the proposed amended version of the Supervision Order will ensure adequate protection of the community.
207 The period of the Supervision Order is 5 years from 2 June 2020.
208 As I have already indicated, on 21 June 2021 the respondent was sentenced for his two offences of contravening the Supervision Order. He was sentenced for the offences to a total of 7 months imprisonment, 5 months of which was suspended for a period of 7 months, the result being that he was required to serve 2 months immediate imprisonment. However, the respondent was not released from custody after serving 2 months imprisonment (presumably due to the interim detention order made by Archer J on 16 September 2020 under s 58 of the Act). Rather, he has remained in custody since 21 June 2021. The result is that the respondent has to date served approximately four and a half months of the total seven month term imposed on him for the two contravention offences.
209 Section 57 of the Act provides:
(1) This section applies if an offender who is subject to a supervision order is sentenced to imprisonment for any offence, whether committed before or after the supervision order was made.
(2) The period for which the supervision order applies is extended by any period after the order is made during which the offender is in custody serving the sentence of imprisonment.
210 The respondent was sentenced for the two offences of contravening the Supervision Order while he was subject to the Supervision Order. Accordingly, by reason of s 57(2) the period of the Supervision Order is extended by the period of time that the respondent has been in custody serving the sentence of imprisonment imposed on him for the two contravention offences. In other words, the period of the Supervision Order is, as things currently stand and by reason of s 57(2), extended by approximately four and a half months.
211 The respondent has been in custody since 28 August 2020, the date on which he was charged with the four contravention offences. He has therefore been in custody for in excess of 14 months. The Act does not provide that the period of a supervision order is extended by any period during which an offender is in custody pursuant to an interim detention order made under s 58 of the Act. The net result is that if the period of the Supervision Order is not extended by an order made pursuant to s 55(1)(b) of the Act, the total period of time for which the respondent will actually be in the community on the order (assuming there are no further contraventions that result in him being returned to prison) will be approximately 4 years, 2 months and 2 weeks (that is, 5 years, less 14 months, plus 4 and a half months).
212 The applicant submits that I should make an order extending the period of the Supervision Order so as to in broad terms achieve the result that the respondent is required to be in the community subject to the order for five years.
213 The respondent submits that it is unnecessary to extend the period of the order.
214 I accept the applicant's submission. In The State of Western Australia v Yates Quinlan CJ made the Supervision Order for a period of 5 years in light of the evidence of Dr Wynn Owen. In my opinion there is no reason not to give substantial effect to what was envisaged by Quinlan CJ, specifically that the respondent would while in the community be subject to the conditions of the Supervision Order for a period of 5 years. Accordingly, in my view the period for which the offender is to be subject to the Supervision Order should be extended to 5 years and 10 months from 2 June 2020.
Orders215 I will hear from the parties as to the precise terms of the orders that I should make to give effect to my above expressed conclusions. However, my intention is to make pursuant to s 55(1)(b) orders to the following effect:
1. The Supervision Order is amended in accordance with Annexure 1 to these reasons save for the deletion of condition 13 (Amended Supervision Order); and
2. The period for which the respondent is to be subject to the Amended Supervision Order is extended to 5 years and 10 months from 2 June 2020.
216 I have decided, consistently with a submission made by the applicant, not to include condition 13 of Annexure 1 in the Amended Supervision Order. I have decided not to do so in light of Dr Wynn Owen's evidence that Antabuse medication will not add to risk reduction in the longer term and is not clinically indicated for the respondent.
ANNEXURE 1
1. Report to a Community Corrections Officer at the East Perth Adult Community Corrections Centre, 30 Moore Street East Perth, within 48 hours of the Order being issued and advise the officer of the person's name and address;
2 . Report to and receive visits from, a Community Corrections Officer as directed by the court;
3 . Notify a Community Corrections Officer of every change of the persons name, place of residence, or place of employment at least 2 days before the change happens;
4 . Be under the supervision of a Community Corrections Officer, which includes, complying with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32);
5 . Not leave, or stay out of, the State of Western Australia without the permission of a Community Corrections Officer;
6 . Not commit a serious offence during the period of the Order;
7 . Be subject to electronic monitoring under section 31;
8 . Take up residence at (specified address) and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer (CCO) assigned to you;
9 . Report to a CCO at your approved release address within normal business hours on the day of release from custody under this order;
10 . Be under the supervision of a CCO and comply with the lawful orders and directions of a CCO;
11 . Not commence or change paid or unpaid employment, volunteer work, education or training without the prior approval of the CCO;
12 . Consult and engage with any medical practitioner, psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO;
13 . To consult with Derbarl Yerrigan Health Service as soon as practicable for assessment as to your suitability for subsidised access to Antabuse medication;
14 . Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious sexual re-offending, as directed by a CCO;
15 . Report to the Officer-in-Charge of the Sex Offender Management Squad at the Hatch Building, 144 Stirling Street, PERTH WA 6000 within 48 hours of your release from custody, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the Sex Offender Management Squad or his/her delegate;
16 . Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004;
17 . If requested, permit Police Officers to enter and search your residence, vehicle and/or person for the purpose of monitoring your compliance with your obligations under this order and allow the seizure of any such items that the Police Officer believes to contravene the conditions of this order;
18 . Remain at your premises and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the provisions of the High Risk Serious Offenders Act 2020;
19 . When requested, advise Police of the names of all of your internet service providers, all mobile or landline telephone services used by you and all internet user names or identities used by you;
20 . Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information;
21 . Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history;
22 . Have no contact, directly or indirectly, with the victims of your sexual offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-Offender Mediation Unit of the Department of Justice;
23 . Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture and must avert your gaze from such victim at all times;
24 . Report to the CCO and WA Police any direct or indirect contact with the victims of your sexual offending on the next occasion you report to the CCO or Police;
25 . Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997;
26 . Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments;
27 . Not commit an offence under s 202, s 203, s 204, or s 557K of the Criminal Code 1913 (WA);
28 . Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996;
29 . Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014, and your use is in accordance with the instructions of the prescriber;
30 . Be subject to a curfew, pursuant to section 32 of the High Risk Serious Offenders Act 2020, such that you are to remain at and not leave your approved address as directed by a CCO from time to time;
31 . When subject to a curfew under this order, present yourself for inspection at the front door or curtilage of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew;
32 . When subject to a curfew under this order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew;
33 . Attend any medical practitioner, psychologist, psychiatrist or counsellor as directed by the supervising CCO;
34 . Undertake any medication regime or treatment as directed by the CCO, in consultation with a medical practitioner(s) and comply with all testing to monitor your compliance with that medical treatment;
35 . Comply fully with any treatment prescribed pursuant to condition 34;
36 . Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of reoffending and compliance with treatment to the Department of Corrective Services;
37 . Permit any medical practitioner or medical practitioners to advise the CCO immediately if they become aware or suspect that you have, or intend to, cease undergoing pharmaceutical medication contrary to the advice of the medical practitioner or medical practitioners, or if you have apparently ceased to consult with that medical practitioner or medical practitioners on such treatment;
38 . With the exception of public transport, not to enter in or on any vehicle where a female is present, unless the identity of such person is approved in advance by a CCO;
39 . Not allow any female to enter or ride in or on any vehicle under your control unless the identity of such person is approved in advance by a CCO;
40 . Not to purchase or possess or consume any inhalants or any volatile substance, unless approved by your CCO;
41 . Not purchase, or possess, or consume or use alcohol;
42 . Not go to, enter in, or remain at any alcohol licensed premises unless permitted or required to do so for the following reasons:
43 . Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place;
44 . To provide a valid sample for testing pursuant to Condition 43;
45 . Not to remain in the presence of any person who is affected by alcohol or prohibited substances, or who you ought to know to be affected by alcohol or prohibited substances, unless the identity of such person is approved in advance by the CCO;
46 . Not remain in any place where prohibited drugs are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place;
47 . Not associate with any persons known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO;
48 . Not enter the premises of, or access the services of, escort agencies or sex workers unless approved in advance by your CCO;
49 . Have no contact with any child between the age of 11 and 18 years, whether such contact is in person, in writing, by telephone or by electronic means, unless:
50 . Where any unsupervised contact with a child between the age of 11 and 18 years is initiated by the child, unless the contact is permitted under the condition immediately above, you must withdraw immediately from the presence of the child;
51 . Provide details of any contact with a child under the age of 18 years both of your CCO and to the Police on the next occasion you report to that person or agency;
52 . Not to form any domestic relationship with a person who has children under the age of 18 years in their care either full time or part time, without prior CCO approval;
53 . Report at your next contact with your CCO the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship by you with a person;
54 . As requested by a CCO, make full disclosure regarding your past offending the current order to anyone with whom you commence a domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or Police Officer;
55 . To advise a CCO of every electronic device used by you to access the internet and the location of that device;
56 . Permit a CCO at any location as nominated by them, to access any computer or any device capable of storing digital data, for the purpose of ascertaining your computer activities, and provide to the CCO upon request any passwords or other means required for access of that device;
57 . With respect to any computer or telephone or other electronic device in your possession, owned by you, or previously been owned by you, whether or not that device is connected to the internet or has been used by you to access the internet, not to delete, or otherwise remove or disguise any search histories, data or logs capable of identifying your activities on that device, without the approval in advance of a CCO, including requesting or permitting another person to delete such information;
58 . To disclose and provide reasonable details of your activities, movements and the associations you come into contact with in the community, when reasonably requested by your CCO.
I
certify that the preceding paragraph(s) comprise the reasons for decision of the
Supreme Court of Western
Australia.
CP
Associate
to the Honourable Justice
Derrick
9 NOVEMBER
2021
[1]
The DSO Act was appealed on 26 August 2020 and, on that date, was in effect
replaced with the High Risk Serious Offenders
Act 2020
(WA).
[2]The
State of Western Australia
v Yates [2020] WASC 149
(The State of Western
Australia v Yates).
[3] At the sentencing hearing that took place on 18 June 2021, referred to below, the respondent's counsel raised with the magistrate the question whether the respondent had in fact formally pleaded to the contravention charge. However, the respondent did not at the sentencing hearing, and has not subsequently, sought to challenge the judgment of conviction entered against him on the charge on 11 August 2020: Exhibit 2, pages 522 - 526 (ts 4 - 8, 18 June 2021).
[4]
Exhibit 3, ts 7, 21 June 2021. The sentencing hearing relating to the two
contravention offences commenced on 18 June 2021. However,
the sentencing was
unable to be completed on that date due to a sudden termination of the video
link with the respondent: Exhibit
3, ts 2, 21 June 2021. Accordingly, the
sentencing hearing was completed on 21 June
2021.
[5]
Exhibit 3, ts 7 - 8, 21 June 2021. The magistrate's expressed approach to the
sentencing exercise was not in accordance with s 80(1) of the
Sentencing Act 1995 (WA). Under s
80(1) of the Sentencing Act the
magistrate was, in dealing with the respondent for the contravention offence for
which he had originally been placed on the suspended
imprisonment order,
permitted to do one
of four things: order the
respondent to serve the suspended term pursuant to s 80(1)(a); order the
respondent to serve part of the suspended term pursuant to s 80(1)(b);
substitute another suspension period of not more than 24 months for the 12 month
suspension period originally set pursuant to s 80(1)(c); or fine the respondent
not more than $6,000 and make no order in respect of the suspended imprisonment
pursuant to s 80(1)(d). It was not open to the magistrate to make an order
under s 80(1)(a) that the respondent was to serve the suspended 6 months and one
day term and an order under s 80(1)(b)
that the respondent was only to serve part of the suspended 6 months and one day
term and an order that the total term
of imprisonment imposed was suspended for 7 months. The approach that the
magistrate was required to
take in order to achieve the end result of a 2 month
term of immediate imprisonment was to order the respondent, under s 80(1)(b), to
serve one month of the suspended 6 months and one day term cumulatively upon the
sentence of one month imposed for the contravention
offence relating to the
respondent's cannabis use. The approach taken by the magistrate does not impact
upon my determination of
the application.
[6] Act, s 2(1)(a).
[7] The term 'commencement day' is defined for the purposes of the provisions contained in pt 10 of the Act (s 122 ‑ s 125) to mean 'the day on which this section comes into operation'. The 'day on which this section comes into operation' is, by virtue of proclamation, 26 August 2020: Act, s 2(1)(c).
[8] Act, s 123.
[9] The State of Western Australia v ZSJ [2020] WASC 330 [30] ‑ [31].
[10]
The corresponding provisions in the DSO Act were s 22 and s 23
respectively.
[11]
Act, s 3, par (b) of definition of 'offender' and definition of 'serious
offender under
restriction'.
[12]
Act, s 3 and s
26(1).
[13]
Act, s 3 and s 27(1).
[14]
Director of Public
Prosecutions (WA) v Hart [2019] WASC 4 [52];
The State of Western
Australia v Narrier [No 5] [2019] WASC 17 [113];
The State of Western
Australia v West [No 6] [2019] WASC 427 [29];
The State of Western
Australia v ZSJ [56] ‑
[58].
[15]
The
State of Western Australia
v Yates [33].
[16]
Exhibit
1.
[17]
Exhibit 2.
[18] Dr Wynn Owen is a 'qualified expert' as defined in s 3 of the Act. His report was prepared and obtained pursuant to s 67 of the Act and in accordance with s 74 of the Act.
[19] Exhibit 3.
[20] Exhibit 6.
[21] Exhibit 4.
[22]
Exhibit
5.
[23]
The State of Western
Australia v Yates [14] -
[16].
[24]
Director of Public
Prosecutions (WA) v Yates [2014] WASC
136.
[25]
Director of Public
Prosecutions (WA) v Yates [2014] WASC 136;
Director of Public
Prosecutions (WA) v Yates [No
2]
[2015] WASC 201;
Director of Public
Prosecutions (WA) v Yates
[No 3] [2016] WASC
213; Director of Public
Prosecutions (WA) v Yates [No 4] [2017] WASC 250;
Director of Public
Prosecutions (WA) v Yates [No 5] [2018] WASC 160;
The State of Western
Australia v Yates [2019] WASC 63;
The
State of Western Australia
v Yates [2021] WASC
149.
[26]
This table is adapted from that included by Quinlan CJ in his Honour's decision
in The
State of Western Australia
v Yates [11].
[27] The State of Western Australia v Yates [22] - [25].
[28]
Director of Public
Prosecutions (WA) v Yates [No 4] [72];
The State of Western
Australia v Yates [2018] WASCSR 86;
The State of Western
Australia v Yates [2019] WASCSR
3.
[29]
The
State of Western Australia
v Yates
[113].
[30]
The State of
Western Australia v Yates
[113].
[31]
The
State
of Western Australia v Yates
[114].
[32]
The
State of Western Australia
v Yates [115] - [119]. The equivalent sections in the Act are s
30(2)(a)(e) and s
30(2)(g).
[33]
DSO Act, s 18(1)(f). The equivalent section in the Act is s
30(2)(f).
[34]
The
State of Western Australia
v Yates [121] -
[139].
[35]
The
State of Western Australia
v Yates [102].
[36]
The
State of Western Australia
v Yates [103] -
[104].
[37]
Performance Report, page
2.
[38]
Psychiatric Report, page 8; Treatment Progress Report, pages 6 - 7; Performance
Report, page 3; Exhibit 4; Exhibit
6.
[39]
Performance Report, page
2.
[40]
Performance Report, page
3.
[41]
Performance Report, page
4.
[42]
Performance Report, pages 4 - 5; Treatment Progress Report, pages 7 - 8.
[43]
ts 1221, 26 October
2021.
[44]
ts 1223, 26 October
2021.
[45]
ts 1223, 26 October
2021.
[46]
ts 1129, 26 October
2021.
[47]
ts 1229, 26 October
2021.
[48]
Exhibit 4.
[49]
Exhibits 5 and
6.
[50]
Act, s
55(3).
[51]
Act, s 29(1) and s
29(2).
[52]
ts 1246, 26 October
2021.
[53]
ts 1246, 26 October
2021.
[54]
ts 1244, 26 October
2021.
[55]
ts 1246, 26 October
2021.
[56]
ts 1223, 26 October 2021.
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