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THE STATE OF WESTERN AUSTRALIA -v- DEMPSTER [2023] WASC 211 (16 June 2023)

Last Updated: 16 June 2023


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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : THE STATE OF WESTERN AUSTRALIA -v- DEMPSTER [2023] WASC 211

CORAM : MCGRATH J

HEARD : 9 NOVEMBER 2022 & 24 MAY 2023

DELIVERED : 16 JUNE 2023

FILE NO/S : SO 1 of 2022

BETWEEN : THE STATE OF WESTERN AUSTRALIA

Applicant

AND

JACK JAMES DEMPSTER

Respondent


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Criminal law - High-risk serious offender - Application for a restriction order - Whether unacceptable risk that respondent will commit a serious offence if not subject to a restriction order - Whether necessary to make a restriction order to ensure adequate protection of the community - Whether community can be adequately protected by a supervision order - Contravention of an interim supervision order - No accommodation available -Turns on own facts


Legislation:

High Risk Serious Offenders Act 2020 (WA), ss 3, 5, 7, 27, 29, 30, 35, 124, 125

Result:

Detention order made

Representation:

Counsel:

Applicant
:
Ms D S McDonnell
Respondent
:
Ms A Fedele


Solicitors:

Applicant
:
State Solicitors Office (WA)
Respondent
:
Legal Aid (WA)


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


MCGRATH J:

Introduction
  1. On 10 January 2022, the State of Western Australia filed an application for a restriction order in respect of Mr Dempster under s 48 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act). The State contends that Mr Dempster is a high risk serious offender and that it is necessary that he be detained in custody for an indefinite term for control, care or treatment and, in the alternative, should he be released, that he be subject to a supervision order under the HRSO Act.
  2. On 22 April 2022, Derrick J heard the preliminary hearing and determined that there were reasonable grounds for believing the Court might, in accordance with s 7 of the HRSO Act, find that Mr Dempster is a high risk serious offender.[1] On 26 May 2022, Derrick J ordered that Mr Dempster be released pursuant to an interim supervision order pending the determination of this restriction order application.[2]
  3. On 9 November 2022, this application was heard before me. The contention of the applicant at the hearing was that Mr Dempster should be declared a high risk serious offender but that he may be released on a five-year supervision order. Mr Dempster's position was that whilst accepting that the evidence supported the making of a supervision order, the length of the supervision order should be only for a three-year period and that a number of the conditions sought to be imposed under the supervision order were not necessary. I reserved my decision.
  4. On 11 November 2022, Mr Dempster was charged with one charge of common assault contrary to s 313(1)(b) of the Criminal Code and three charges of contravening a condition of the interim supervision order contrary to s 80(1) of the HRSO Act. Mr Dempster was remanded in custody to reappear on 22 March 2023 for a hearing in respect to the common assault charge and one contravention charge. Mr Dempster pleaded guilty to the other two contravention charges. The learned Magistrate adjourned sentencing until the determination of the further two charges.
  5. On 21 March 2023, the State commenced contravention proceedings in respect of the interim supervision order.
  6. On 22 March 2022, Mr Dempster was convicted of the common assault charge and the contravention charge. The learned Magistrate imposed a term of immediate imprisonment of 6 months and 1 day in respect of the assault charge and a 1 month term of imprisonment for two of the contravention charges. The learned Magistrate imposed no penalty in respect to the third contravention charge pursuant to s 11 of the Sentencing Act 1995. The terms of imprisonment were ordered to be served concurrently and backdated to 13 November 2022. Therefore, the total effective term of immediate imprisonment was 6 months and 1 day, with Mr Dempster's release date being 13 May 2023.
  7. On 24 May 2023, I heard further submissions on the restriction application and the contravention application. Therefore, in the context of these proceedings, the State is applying for a contravention application in respect of an interim supervision order. However, no finding has been made yet that the respondent is a high risk serious offender. The contravention of the interim supervision order is highly relevant to the determination of the restriction order application. I will consider the contraventions as part of the evidence that informs whether Mr Dempster is declared a high risk serious offender and if so, whether he is detained or released on a supervision order in respect to the restriction order application. Further, I will determine whether Mr Dempster has contravened the interim supervision order in the contravention proceedings and therefore, make the appropriate order under s 55 of the HRSO Act.
  8. At the hearing of the restriction order application and at the contravention hearing on 24 May 2023, the State submitted that Mr Dempster should be declared a high risk offender and that he should be detained. The State contended that Mr Dempster will not substantially comply with a supervision order and further, that in any event, there is no suitable accommodation available for Mr Dempster. In the absence of suitable accommodation the State submitted that Mr Dempster should not be released on a supervision order.
  9. I have determined that it is necessary that Mr Dempster be subject to a restriction order under the HRSO Act to ensure the adequate protection of the community against the unacceptable risk that he will commit a serious offence. I would have released Mr Dempster to a supervision order for five years under s 27 of the HRSO Act if suitable accommodation was available. However, given that Mr Dempster does not have a home, he cannot be released into the community on a supervision order and therefore he must be detained under the HRSO Act.
  10. In these reasons, I will consider the following:
    1. The relevant legal principles;
    2. The evidence received at the hearing;
    3. The factors under s 7 of the HRSO Act; and
    4. Assessment and conclusions.
Legal principles

High Risk Serious Offenders Act 2020 (WA)

  1. The State may make an application for a restriction order where a person is a serious offender under custodial sentence pursuant to s 35 of the HRSO Act. The term 'serious offender under custodial sentence' is defined in s 3:
serious offender under custodial sentence means a person –
(a) who is under a custodial sentence for a serious offence; or
(b) who –
(i) is under a custodial sentence for an offence or offences other than a serious offence; and
(ii) has been under that sentence at all times since being discharged from a custodial sentence for a serious offence;
  1. At the time this application was made, Mr Dempster was serving a term of imprisonment for a 'serious offence' as defined by ss 3 and 5 of the HRSO Act.
  2. A 'serious offence' is defined by s 5 of the HRSO Act which relevantly provides:
    1. Term used: serious offence

(1) An offence is a serious offence if –

(a) it is specified in Schedule 1 Division 1; or
(b) it is specified in Schedule 1 Division 2, and is committed in the circumstances indicated in relation to that offence in that Division.

(2) An offence is a serious offence if –

(a) it was an offence under a written law that has been repealed; and
(b) the offender's acts or omissions that constituted the offence under the repealed provision would constitute a serious offence under subsection (1).

(3) An offence is a serious offence if it is an offence of conspiracy, attempt or incitement to commit an offence that is a serious offence under subsection (1) or (2).

  1. Mr Dempster has committed offences that come within this category. Mr Dempster has also committed a number of offences that are not characterised as serious offences. Offences of other types may be relevant in assessing the risk of serious offending being committed in the future because other offences may be connected to behaviour which has the real potential to lead to serious offending.[3]
  2. Section 7(1) of the HRSO Act provides that an offender is a high risk serious offender if the Court is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure the adequate protection of the community against an unacceptable risk that the offender will commit a serious offence. If the Court is satisfied that there is an unacceptable risk of the kind described in s 7(1) of the HRSO Act, it necessarily follows that the person concerned is a high risk serious offender.[4]
  3. Section 7(2) of the HRSO Act provides that the State has the onus of satisfying the Court that a person is a high risk serious offender. The Court has to be satisfied, to a high degree of probability, and by acceptable and cogent evidence. This is a greater standard than a finding on the balance of probabilities and less than a finding of beyond reasonable doubt but is otherwise incapable of further definition.[5] This does not necessarily mean that the risk must be at some high percentage of probability; a risk may be less than 50% yet still be unacceptable. However, the Court must identify what it is that constitutes the risk and what makes it unacceptable and then consider whether or not those factors have been proved to the requisite standard, that being to a high degree of probability, furnished by acceptable and cogent evidence.[6]
  4. In The State of Western Australia v Garlett,[7] Corboy J identified that there is 'arguably a material difference between s 7(1) of the Dangerous Sexual Offenders Act 2006 (DSO Act), read with s 17, and s 7(1) of the HRSO Act, read with s 48',[8] being the inclusion in s 7(1) of the requirement that the Court be satisfied that 'it is necessary to make a restriction order'. Corboy J stated:[9]
It is arguable that the words 'necessary to make a restriction order in relation to the offender to ensure adequate protection of the community' introduce a further evaluative element over and above an evaluation of whether the risk of an offender committing a serious offence is unacceptable.
  1. Corboy J recognised in The State of Western Australia v Garlett that the current form of s 7(1) requires that the need to ensure adequate protection for the community should form part of the Court's determination of whether the offender is a high risk offender (the first step in making a restriction order) and should not merely be the paramount consideration in deciding what form of order should be made in respect of an offender who has been found to be a high risk serious offender (the second step).[10]
  2. In The State of Western Australia v D'Rozario,[11] Quinlan CJ agreed with Corboy J's construction of s 7(1) of the HRSO Act.
  3. I also agree with Corboy J's construction of the HRSO Act. Therefore, the Court is required to make two evaluative judgments under s 7 of the HRSO Act being first, whether the risk of future offending is unacceptable and second, whether it is necessary to make a restriction order to adequately protect the community. The Court could find that it is not necessary to make a restriction order to adequately protect the community, despite the Court finding that the risk of future offending was unacceptable. As Quinlan CJ observed, it would be a rare situation that the Court would find that it was not necessary to make a restriction order to adequately protect the community notwithstanding that it has been found that the risk of future offending was unacceptable.[12] Quinlan CJ gave the example where:
'other external restraints on an offender (such as a post‑sentence supervision order under the Sentence Administration Act 2003 (WA)) may provide adequate protection of the community against the unacceptable risk that the offender will commit a serious offence (such that a restriction order is not 'necessary').[13]
  1. A finding that there is an unacceptable risk involves a balancing exercise requiring the Court:
'to have regard to, among other things, the nature of the risk (the commission of a serious offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition whilst having regard, on the other hand, to the serious consequences for the offender if an order is made, (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order).'[14]
  1. An unacceptable risk in the context of s 7(1) of the HRSO Act is therefore a risk which is unacceptable having regard to a variety of considerations. These may include the likelihood of the person offending, the type of serious offence which the person is likely to commit (if that can be predicted) and the consequences of finding that an unacceptable risk exists. I am required to consider whether, having regard to the likelihood of Mr Dempster offending and the offence to be committed, the risk of that offending is so unacceptable that, notwithstanding the fact that Mr Dempster has already been punished for the offences he has committed, it is necessary in the interests of the community to ensure that he is subject to further control or detention.[15]
  2. Section 7(3) of the HRSO Act sets out a number of matters that the Court must have regard to in considering whether a person is a serious danger to the community. Those matters are:
(3) In considering whether it is satisfied as required by subsection (1), the court must have regard to the following –
(a) any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section;
(b) any other medical, psychiatric, psychological, or other assessment relating to the offender;
(c) information indicating whether or not the offender has a propensity to commit serious offences in the future;
(d) whether or not there is any pattern of offending behaviour by the offender;
(e) any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;
(f) whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;

(g) the offender's antecedents and criminal record;

(h) the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;
(i) the need to protect members of the community from that risk;

(j) any other relevant matter.

  1. I note that s 7(3)(j) of the HRSO Act provides that the list of matters to be considered by the Court is not limited by those otherwise delineated in the s 7(3).
  2. While s 7(3)(g) of the HRSO Act provides that the Court must have regard to the offender's criminal record in deciding whether a person is a serious danger to the community, the mere fact that a person has committed previous offences does not necessarily mean that there is an unacceptable risk that the person would commit a serious offence in the future. The relevance of a prior criminal record would depend on the nature of the offences committed, the number of offences and the period of time over which they occurred. However, past behaviour is often a good indicator of future conduct.
  3. If the Court determines that an offender is a high risk serious offender, then the Court is required to make a restriction order.[16]
  4. The term 'restriction order' is defined in s 3 of the HRSO Act to mean 'a continuing detention order' or 'a supervision order'. The terms 'continuing detention order' and 'supervision order' are defined in ss 26 and 27 respectively in similar terms to those that were used in the DSO Act.[17]
  5. Section 26 of the HRSO Act provides:
(1) In this Act a continuing detention order in relation to an offender is an order that the offender be detained in custody for an indefinite term for control, care, or treatment.

(2) A continuing detention order has effect in accordance with its terms from the time the order is made until rescinded by a further order of the court.
  1. Section 27 of the HRSO Act provides:
(1) In this Act a supervision order in relation to an offender is an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate, in accordance with section 30.

(2) A supervision order has effect in accordance with its terms –

(a) from a date stated in the order; and

(b) for a period stated in the order.

(3) The date from which a supervision order has effect must not be earlier than 21 days after the date the order is made unless the court is satisfied that the implementation of the order from an earlier date is practically feasible.
  1. In making a determination between those two alternatives the paramount consideration is the need to ensure the adequate protection of the community.[18]
  2. However, other considerations do apply. The use of the word 'adequate' in the section indicates that a qualitative assessment is required. It cannot be assumed that the most preventative action is detention and that therefore, the protection of the community will always favour such an order.[19]
  3. Given the more onerous nature of a continuing detention order, the scheme of the HRSO Act requires that the Court do no more than is necessary for the continuing control, care or treatment of the offender to achieve an adequate degree of protection of the community.[20]
  4. Section 29 of the HRSO Act provides that the Court cannot make a supervision order unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order. The onus of proof is on the respondent offender pursuant to s 29(2) of the HRSO Act.
  5. The words 'will substantially comply with' should be given their ordinary meaning, consistent with the purposes of the legislation and the general conditions of a supervision order, the overall object of which is to achieve the adequate protection of the community by appropriate management and mitigation of the unacceptable risk that the respondent will commit a serious offence.[21]
  6. The term 'standard condition', in relation to a supervision order, is defined by s 3 of the HRSO Act as meaning a condition that under s 30(2) must be included in the order. Section 30(2) of the HRSO Act provides seven conditions that must be included in any court ordered supervision order. Therefore, Mr Dempster must satisfy the Court that he will substantially comply with those standard conditions before the Court can make a supervision order. The seven standard conditions set out in s 30(2) of the HRSO Act require that the person:
    (a) report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender's current name and address; and
    (b) report to, and receive visits from, a community corrections officer as directed by the court; and
    (c) notify a community corrections officer of every change of the offender's name, place of residence or place of employment at least 2 days before the change happens; and
    (d) be under the supervision of a community corrections officer and comply with any reasonable direction of the officer (including a direction for the purposes of s 31 or 32); and
    (e) not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and
    (f) not commit a serious offence during the period of the order; and
    (g) be subject to electronic monitoring under section 31.
Legal principles - Contravention Proceedings
  1. Section 53 of the HRSO Act specifies the circumstances in which the applicant may apply for an order under s 55 in respect to an offender who contravenes a supervision order. This includes where an offender is charged with an offence under s 80(1) of the HRSO Act. It is not in dispute that Mr Dempster falls within the terms of this section.
  2. 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.
  1. In The State of Western Australia v PAS,[22] Quinlan CJ held that an interim supervision order is a supervision order within the meaning of s 27 of the HRSO Act. Therefore, the contravention provisions apply to an interim supervision order.
Evidence
  1. The State tendered a Book of Materials that was comprised of relevant material relied upon.[23] I also received a Supplementary Book of Materials for the further restriction and contravention hearing.[24] The supplementary book comprised further reports of Dr Wojnarowska, consultant forensic psychiatrist, dated 28 March 2023 and Ms Hasson, forensic psychologist, dated 29 March 2023, and an updated community supervision report.
  2. At the restriction order application the State relied upon testimony of four witnesses, namely: Dr Wojnarowska; Ms Hasson; Ms Shae Hazzard, Community Corrections Officer and author of a Community Supervision Assessment Report dated 11 October 2022; and Ms Tara Stagg, Community Corrections Officer at the Community Offender Monitoring Unit, and author of the Proposed High Risk Serious Offender Treatment Options Report dated 19 October 2022. At the further restriction order application and contravention hearing, the State relied upon testimony of Ms Hazzard, Senior Community Corrections Officer.
  3. I now turn to the matters relevant to determining whether or not Mr Dempster is a high risk serious offender pursuant to s 7 of the HRSO Act. I will do so by considering the evidence in the context of the HRSO Act. I will then turn to consider the contravention offences.
Factors under s 7 of the HRSO Act History of offending and antecedents - ss 7(3)(c), 7(3)(d) and (7)(g)
  1. In deciding whether a person is a high risk serious offender, the Court must have regard to the offender's antecedents and criminal record. That requires that all prior offences be considered, to the extent that such offences are relevant to the question of whether the person is a high risk serious offender within the meaning of the HRSO Act (whether they be serious offences or not).
  2. The offender's criminal record and antecedents are relevant in and of themselves but are also relevant to whether the person has a propensity to commit serious offences in the future,[25] and as to whether there is any pattern of offending behaviour.[26]

Antecedents

  1. Mr Dempster is a 38-year-old aboriginal man having been born on 26 May 1984. He is one of four children born to his parents' union. Mr Dempster's father died when he was very young and his mother died in 2018. During his formative years, his mother was unable to care for her children due to her alcohol abuse and drug addiction. Mr Dempster, for the most part, was raised by his grandmother.
  2. Regrettably, Mr Dempster was subjected to physical abuse as a child and was exposed to substance abuse by his relatives from a young age.
  3. Mr Dempster had a limited formal education having completed his formal education in year eight. Mr Dempster has reasonable literacy and numeracy skills.
  4. Mr Dempster has engaged in periods of employment throughout his adult life, including work as a house painter and as a roustabout.
  5. Mr Dempster has formed relationships with his partners and at the time of being sentenced for his most recent serious offence he has been in a relationship for approximately seven years.
  6. Mr Dempster has a long term entrenched substance abuse problem. He commenced using alcohol and illicit substances in his early teenage years and has continued to do so ever since. Mr Dempster has a long history of solvent abuse and of using amphetamines, opiates (morphine) and cannabis. There is a causal connection between Mr Dempster's use of alcohol and illicit substances and his offending. Mr Dempster's use of alcohol and illicit substances impacts on his emotional regulation and consequential thinking and therefore increases the risk of him committing offences. On most occasions when Mr Dempster has offended he has been intoxicated. Mr Dempster accepts that his substance abuse is a coping mechanism to manage stressful problems.

Relevant criminal history

  1. Mr Dempster's offending involves offences committed in Western Australia. The offending history is summarised, in part, in a chronology of offending, which was received in evidence.[27] I also received Mr Dempster's updated criminal record.[28]
  2. I will outline the index offending and then turn to Mr Dempster's other convictions, delineating the three offences that may constitute serious offences under s 5 and sch 1 of the HRSO Act. The full extent of Mr Dempster's offending history is outlined in the criminal record which forms part of the material relied upon by the applicant.[29]

Index offence

  1. The index offence, which was committed on 8 June 2018, involved Mr Dempster, with intent to harm another, doing an act as a result of which the life, health or safety of the person was, or was likely to be endangered contrary to s 304(2)(b) of the Criminal Code.[30]
  2. The complainant was Mr Dempster's partner. Mr Dempster was subject to protective bail conditions which prevented him from having contact with his then partner.[31] Mr Dempster, the complainant and the complainant's sister had been consuming alcohol together leading to Mr Dempster verbally and physically abusing the complainant. Mr Dempster stomped on the victim's foot twice causing the complainant to walk away. Mr Dempster then hit the complainant in the back with a chair causing the victim to fall backwards onto a kitchen table.
  3. The complainant stated that she was going to leave Mr Dempster, causing him to say that he would kill her and himself. Mr Dempster then pulled the victim into the dining room by a jumper and punched her in the head repeatedly with his fists. He then took a large steak knife from the kitchen and stabbed the complainant in the head approximately four times. Mr Dempster then hit the complainant in the head with a glass bottle a number of times. Mr Dempster left the premises and did not render any assistance to the complainant, nor did he contact the emergency services. The complainant suffered numerous injuries, including lacerations that were deep to the skull bone.
  4. Mr Dempster's offending in respect of the index offence was committed while subject to a suspended imprisonment order for other offences. A term of imprisonment of four years was imposed.[32]

Other serious offences

  1. On 4 March 2011, Mr Dempster committed an aggravated armed robbery contrary to s 392 of the Criminal Code.[33] The offending involved Mr Dempster punching the victim to the head, causing injuries to the facial region, and then striking the victim again with a clenched fist.[34] A term of imprisonment of 1 year and 8 months was imposed.
  2. Between 10 and 11 May 2005, Mr Dempster indecently dealt with a child over the age of 13 and under the age of 16 years, contrary to s 321(4) of the Criminal Code.[35] Mr Dempster was 21 years of age, and the victim was his 14 year old female cousin. Mr Dempster touched her breasts on three occasions whilst she was in her bed. The complainant asked him to leave, which he eventually did.[36] The learned Magistrate imposed a 15-month term of imprisonment. [37]

Other non-serious offences

  1. Mr Dempster has a number of convictions for sexual offences, specifically aggravated indecent assault, indecent assault and, performing indecent acts. Mr Dempster's first indecent act offence and indecent assault offence were both committed on 10 April 2007. The indecent act offence involved Mr Dempster approaching a female in a store, removing his penis from his pants and stroking his penis until it became semi-erect.[38] The indecent assault involved Mr Dempster exposing his erect penis to a 51‑year‑old female and attempting to grab the female, which resulted in both falling to the floor. Mr Dempster then put his finger into the female's mouth before she was able to run away.[39] Mr Dempster's second indecent offence, which was committed by him on 25 April 2007, involved him exposing his penis to an 8‑year‑old girl.[40]
  2. Mr Dempster has not committed any further sexual offence since 2007. However, in 2017, Mr Dempster was convicted of one offence of being a sex offender near a public place, contrary to s 557K(6)(b) of the Criminal Code, and one charge of failing to comply with reporting obligations under s 63(1) of the Community Protection (Offender Reporting) Act 2004 (WA).[41]
  3. Mr Dempster has been convicted of other offences involving violence.
  4. In 2005, Mr Dempster was convicted of two charges of assaulting a public officer contrary to s 318(1)(d) of the Criminal Code.[42] The police attended an address to speak to Mr Dempster who presented holding a knife. Mr Dempster pointed the knife at the officers and then attempted to strike the two officers. A sentence of 12 months immediate imprisonment was imposed.[43]
  5. In 2007, Mr Dempster was convicted of one charge of assaulting a police officer contrary to s 318(1)(d) of the Criminal Code. The offending involved Mr Dempster pushing a police officer causing him to step backwards. Mr Dempster then clenched his fist and pulled it backwards preparing to hit the officer.[44] A term of imprisonment of 2 months was imposed.[45]
  6. In 2013, Mr Dempster committed the offences of assault occasioning bodily harm contrary to s 317(1) of the Criminal Code and carrying an article with intent to cause fear contrary to s 8(1)(b) of the Weapons Act 1999.[46] Mr Dempster assaulted a prisoner in Eastern Goldfields Prison by attempting to kick the victim to the head and repeatedly punching the victim to the head. Mr Dempster then began striking the victim with a piece of wood.[47] In respect to the offence of aggravated assault occasioning bodily harm, a term of imprisonment of 14 months was imposed.[48]
  7. In 2016, Mr Dempster committed the offences of unlawful wounding and burglary contrary to ss 301(1) and 402(1)(c) of the Criminal Code.[49] The offending involved Mr Dempster entering a hotel and striking a hotel employee with a metal pole to his head causing a laceration. Mr Dempster was intoxicated at the time of the offending.[50]

Contravention offending

  1. The conduct upon which the applicant relies in support of the contention that the respondent has contravened the supervision order comprises the criminal convictions which I have outlined.
  2. On 11 November 2022, Mr Dempster was charged with one charge of common assault contrary to s 313(1)(b) of the Criminal Code and three charges of contravening a condition of the interim supervision order contrary to s 80(1) of the HRSO Act. Mr Dempster pleaded guilty to two of the contravention charges. Mr Dempster was remanded in custody to reappear on 22 March 2023 for a hearing in respect to the common assault charge and one contravention charge, and to impose sentence in respect of the other two contravention charges.
  3. The contravention charges concern Mr Dempster's conduct on 11 and 12 November 2022. On 11 November 2022, Mr Dempster attended his neighbours house and consumed alcohol with other persons. The common assault involved Mr Dempster pushing the victim to the right side of his face.[51]
  4. The contravention charges comprised breaching supervision order condition 20, which required Mr Dempster not commit any criminal offence involving violence; breaching condition 22, which required Mr Dempster to be subject to a curfew; and breaching condition 28, which required Mr Dempster not possess, consume or purchase alcohol.
  5. On 22 March 2023, the learned sentencing Magistrate imposed a term of imprisonment of 6 months and 1 day for the offence of common assault, 1 month for contravening his curfew and alcohol condition, and imposed no penalty pursuant to s 11 of the Sentencing Act 1995 for the contravention of the condition that he does not commit an offence of violence.
Propensity to commit serious offences in the future; whether there is a pattern of offending behaviour - s 7(3)(c)
  1. The word 'propensity' is taken to have its ordinary meaning in the criminal law context. In Director of Public Prosecutions (WA) v GTR, Murray AJA stated that:[52]
[propensity] means that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of a quality of a diagnosable mental illness or personality disorder.
  1. The State submits that Mr Dempster's criminal record demonstrates an entrenched history of violent offending that commenced at an early stage of life. Mr Dempster's criminal history is extensive and sustained, demonstrating a pattern of violent offending, particularly whilst under the influence of alcohol or illicit substances. I accept that the pattern of offending ordinarily commences with the consumption of alcohol or illicit drugs and leads to high risk situations in which violent or sexual offending occurs. Mr Dempster's offending is comprised of acts of unprovoked violence or indecent exposure, and historically, indecent assault. Since 2003, the longest period that Mr Dempster has not been incarcerated has been approximately 3 months.
  2. Although Mr Dempster has committed sexual offences, he does not present with sexual deviance. Dr Wojnarowska states that Mr Dempster's sexual offences were not premeditated but rather opportunistic.[53]
Efforts to address offending behaviour and whether or not the participation in any rehabilitation program has had a positive effect ‑ ss 7(3)(e) and 7(3)(f)
  1. I must also consider if Mr Dempster has made any efforts to address the cause or causes of his offending behaviour, including by participating in any rehabilitation programs. Further, I must consider whether or not the participation in any rehabilitation program has had a positive effect.
  2. Mr Dempster's history of treatment interventions and programs is outlined by both Dr Wojnarowska and Ms Hasson.[54]

Treatment programs

  1. Mr Dempster has undertaken or completed numerous treatment or programmatic intervention courses over an extended period. The relevant reports from the programs formed part of the State's material. I have considered those reports and will provide a succinct summary.
  2. In 2009, Mr Dempster undertook the Indigenous Men Managing Anger and Substance Abuse Program.[55] Mr Dempster was described as a confident, eager and cooperative participant who indicated a genuine desire to make positive changes in his life in relation to alcohol and drug use.
  3. In 2011, Mr Dempster completed the Cognitive Brief Intervention Program.[56] The author of the report stated that Mr Dempster was polite and respectful and showed a reasonable understanding of the program's content and that he had made some gains in sessions concerning consequences and perspective taking.
  4. In 2015, Mr Dempster partially undertook the Pathways Program, attending ten of the thirteen sessions.[57] Mr Dempster did not complete the Pathways Program due to his mother becoming ill. Mr Dempster appeared to the facilitators to improve his insight into his offending behaviour and its link to alcohol and drug use. Whilst Mr Dempster appeared to struggle with some of the program's content, he did make overall gains. The facilitators considered that Mr Dempster's treatment needs for substance abuse remained outstanding.
  5. In 2020, Mr Dempster completed the Connect and Respect Program.[58] The facilitators stated that Mr Dempster had a good understanding of the program's content but was reported to be an impulsive and reactive problem solver. To Mr Dempster's credit, he attended all sessions and actively engaged in all group work activities acknowledging the role of alcohol and other drugs in his offending behaviour. The author of the report stated that Mr Dempster's ability to regulate his emotions and communicate with others required further development.[59]
  6. In 2021, Mr Dempster undertook and completed the Pathways Program.[60] Mr Dempster attended all 50 program sessions and presented as positive and engaged in all sessions, and contributed to all activities. The facilitators confirmed that during the program Mr Dempster demonstrated improvement in communication, problem solving and consequential thinking. When developing his risk management plans Mr Dempster was reflective, realistic and insightful.
  7. Dr Wojnarowska observed that in total Mr Dempster has participated in five programs since 2009 and all reports note that he was consistent with attendance, an enthusiastic participant who made gains, and was motivated to change.[61] Though, Dr Wojnarowska noted that Mr Dempster lacks insight to the benefits of professional services assisting his reintegration to the community.[62]
  8. Ms Hasson stated that despite Mr Dempster's lengthy periods of imprisonment and the recommendations of reports, he has never completed a sex offender treatment program nor a violent offender treatment program. The reason, as Ms Hasson observed, is due to the length of the terms of imprisonment imposed and the lack of program availability.[63] It is most regrettable that such programs have not been made available to Mr Dempster, who appears to be a person who does engage actively and positively with the treatment programs available to him.
Psychiatric reports and extent to which Mr Dempster cooperated with psychiatric examinations - s 7(3)(a)

Dr Wojnarowska

  1. Dr Wojnarowska provided one report for the restriction order application dated 1 October 2022 and also gave oral testimony at the hearing of the application. Subsequent to the contravention offences, Dr Wojnarowska provided further reports dated 2 December 2022 and 29 March 2023 respectively.
  2. Dr Wojnarowska stated that Mr Dempster presented with a long history of offending which commenced in his early adolescence. Dr Wojnarowska stated there was no evidence of any particular sexual deviance. Dr Wojnarowska diagnosed Mr Dempster as fulfilling the criteria for Antisocial Personality Disorder as evidenced by his history of breaking the law, acting impulsively, and lacking regard for the safety of others.[64] Dr Wojnarowska also diagnosed Mr Dempster with Substance Abuse Disorder (amphetamines and alcohol dependence), which is currently in remission, and Adjustment Disorder with depressed mood.[65]
  3. Dr Wojnarowska utilised Static 99R, which is an instrument that analyses sexual offenders in terms of the relative degree of risk for sexual recidivism based on commonly available demographic and criminal history information that has been found to correlate with sexual recidivism in adult male sexual offenders. Static 99R contains ten items which, when added together, create a total score.
  4. Mr Dempster's Static 99R score of 9 places him in the well above average risk. In routine samples with the same score the five-year recidivism rate is between 42.2% to 52.5%. This means that out of 100 sexual offenders with the same risk score, between 42 and 52 would be charged or convicted of a new sexual offence in the community. Conversely, between 58% and 48% would not be charged or convicted of a new sexual offence during that time period. The recidivism rate of sexual offenders with the same score would be expected to be seven times higher than that of a typical sexual offender.[66]
  5. Dr Wojnarowska utilised the Hare Psychopathy Check-list-Revised (PCL-R), which assesses the extent to which an individual's personality structure conforms to the clinical construct of psychopathy. The PCL-R score is recognised as a useful indicator of likely future recidivism for general, violent offending. The score obtained from this test can be an important component of other risk assessment tools including structured clinical guides.
  6. Dr Wojnarowska determined that Mr Dempster's total score as assessed using the PCL-R did not reach the threshold for psychopathy.[67]
  7. Dr Wojnarowska utilised the HCR-20 v3 which is a broad-band violence risk assessment instrument with potential applicability to a variety of contexts. The conceptual scheme of the HCR-20 v3 aligns risk markers into the past, present and future. The future is recognised in the 5 Risk Management items, which focusses attention on situational post‑assessment factors that may aggravate or mitigate risk.
  8. Dr Wojnarowska identified a number of risk and responsivity factors relevant to Mr Dempster's risk of violent recidivism.[68]
  9. Dr Wojnarowska also utilised the Spousal Assault Risk Assessment guide (SARA-V3) to assess Mr Dempster's risk of engaging in intimate partner violence. Dr Wojnarowska stated that it is evident that Mr Dempster has a history of physical harm against his partners and that there is a close link between his substance abuse and acts of domestic violence.[69]
  10. The risks of reoffending involve Mr Dempster's antisocial family members or peers who may lead him to reengage with substance abuse. This would influence him to engage in violence as a means of obtaining money to fund the substance abuse. An equally possible scenario would be in the context of a relationship with a vulnerable female who uses illicit substances or alcohol. The relationship would be unstable due to the substance abuse.[70]
  11. Dr Wojnarowska made the following conclusion:[71]
His readiness to engage in psychological counselling, adherence to abstinence, community order conditions and the support of pro-social peers may not outweigh the risk factors outlined in the HCR-20 v3 as demonstrated by Mr Dempster in the past. In my opinion if Mr Dempster is not made subject to the relevant order of the HRSO Act, he is at high risk of violently reoffending in a serious manner as defined by the HRSO Act. His risk can be managed in the community subject to a RO (restriction order), which duration should be of a minimum five years, during which time Mr Dempster will have an opportunity to demonstrate his ability to adhere to conditions and commitment to remain substance and alcohol free.
  1. Dr Wojnarowska stated that Mr Dempster should continue to engage in drug and alcohol counselling and therapeutic intervention focussing on outstanding needs relating to anger, violence, and antisocial personality variables.[72]
  2. Dr Wojnarowska stated in her report of 2 December 2022 that the contravention offences 'were within keeping of his diagnosis of Antisocial Personality Disorder and history of Substance Use Disorder'.[73] Dr Wojnarowska, in her report of 28 March 2023, maintained her opinion Mr Dempster can be managed in the community subject to a supervision order. Further, in relation to whether Mr Dempster's accommodation is suitable, Dr Wojnarowska stated that 'the offence was triggered by Mr Dempster's jealousy facilitated by the state of intoxication and impulsivity consistent with a diagnosis of Antisocial Personality disorder. This type of offence may reoccur at any type of accommodation or situation'.[74]
Psychological and other assessments - s 7(3)(b)

Ms Hasson

  1. Ms Hasson produced one report dated 30 September 2022 for the restriction order proceedings. For the purpose of contravention proceedings, Ms Hasson provided updated reports dated 30 November 2022 and 29 March 2023 respectively. Ms Hasson expressed the opinion that Mr Dempster presents as a high risk of serious reoffending if not subject to the HRSO Act.[75] Ms Hasson stated that Mr Dempster's offending behaviour appears to have escalated over time. While Mr Dempster has participated in programs to address intimated partner violence and substance abuse, with some treatment gains, he has not addressed his sexual offending nor his non-intimate partner violent offending. Ms Hasson stated that Mr Dempster does not present with an immediate need to undertake sex offender specific treatment.
  2. Ms Hasson assessed Mr Dempster using the PCL-R and determined that he does not fit the construct of psychopathy in Australia.
  3. Mr Dempster's risk for violent offending was considered by Ms Hasson using the HCR‑20 v3.[76] finding that there were a number of historical, clinical and risk management factors present. The identified risk factors included: violence; serious problems with establishing and maintaining prosocial, stable personal relationships; substance abuse; personality disorder; traumatic experience; and violent attitudes. In addition, Ms Hasson identified future problems with stress and coping, and personal support issues.
  4. Ms Hasson also assessed Mr Dempster using the Static-99R tool resulting in a score of 7 which placed him in the 'well above average' risk bracket for being charged or convicted of another sexual offence.[77] Ms Hasson stated that, for 'high risk high needs' offenders such as Mr Dempster with a Static-99R score of seven, the sexual recidivism rates are, at the five year mark, 30.7% with a confidence interval between 25.1% to 37% and at the ten year mark 42.8% with a confidence interval between 33.9% and 52.3%. Based on Mr Dempster's Static-99R score, Mr Dempster is assessed as having a high risk of reoffending. His score is higher than 97.2% of routine samples of sexual offenders.
  5. Ms Hasson also utilised the RSVP tool and identified numerous risk factors including chronicity of sexual violence (partially present); diversity of sexual violence; escalation of sexual violence; physical coercion in sexual violence; problems with substance abuse; violence ideation; and problems with treatment and supervision.
  6. Ms Hasson expressed the opinion that Mr Dempster is at a high risk of serious offending if not subject to a restriction order. During her oral testimony at the restriction order hearing of 9 November 2022, Ms Hasson expressed the opinion that the protection of the community may be properly and satisfactorily managed by a supervision order rather than a continuing detention order.[78]
  7. Ms Hasson stated that Mr Dempster presented with many traits consistent with a diagnosis of Antisocial Personality Disorder. Further, Mr Dempster's behaviour suggests that consistent disregard for the law and his punishment appears to have had little or no effect on moderating his behaviour. Further, previous engagement in, and the completion of treatment programs, has not caused the offending behaviour to cease. Whilst in the community Mr Dempster displays emotional behavioural volatility which includes his offending behaviour and a history of deliberate self-harm.
  8. Regrettably, Ms Hasson stated that Mr Dempster, whilst in the community, has been affected by alcohol and other drugs, resulting in his disinhibition and emotional and behavioural regulation difficulties. These factors, Ms Hasson stated, increase the likelihood of Mr Dempster offending further.
  9. On a positive note, Ms Hasson observed that Mr Dempster acknowledged during his interview that the majority of his violent offending behaviours was against his partners and he expressed empathy, regret and remorse.
  10. In respect to risk, Ms Hasson stated that regarding violent offending, there is considerable overlap in items between the HCR‑20 v3, RSVP, Static 99R (2016) and the SARA with all indicating that Mr Dempster presents as a high risk of committing a serious violent offence against an intimate partner or other individual.[79]
  11. Ms Hasson in her subsequent report of 30 November 2022 stated that her previous opinion had been altered by the contravention offences. Ms Hasson stated that Mr Dempster's behaviour casts doubt on his ability to not consume alcohol. Ms Hasson found a particular concern is that a possible motive for the assault is Mr Dempster's jealousy of another male. Ms Hasson expressed the opinion that there is a strong link between jealousy and intimate partner violence.
  12. In her report of 30 November 2022, Ms Hasson also expressed concerns regarding Mr Dempster's present accommodation, which 'does not appear to be stable and supportive'.[80] There is only one room at the residence which restricts Mr Dempster's ability to retreat to a private space. Ms Hasson stated that Mr Dempster's ability to 'avoid or disengage from antisocial individuals and family members and those under the influence of alcohol and/or other substances is compromised by residing in his current accommodation'.[81] Accordingly, Ms Hasson stated that the accommodation is not suitable and that hostel‑type accommodation or living alone is preferred. Ms Hasson stated that Mr Dempster may benefit from addressing his alcohol use in a residential treatment program.
  13. In her report of 29 March 2023, Ms Hasson stated that the protection of the community may be properly and satisfactorily managed by a supervision order, but that Mr Dempster's proposed accommodation is unsuitable.[82]
Any other relevant matter - s 7(3)(j) - Community Supervision Assessment

Proposed HRSO Management Plan - Ms Stagg

  1. Ms Stagg, HRSO Planning Manager, provided a proposed HRSO Treatment Options Report and gave testimony at the hearing.
  2. Ms Stagg stated that should Mr Dempster be released on a supervision order the drug and alcohol counselling he is receiving through the Wungening Aboriginal Corporation will continue. The intervention will target treatment needs associated with substance abuse. Ms Stagg confirmed that Mr Dempster is currently on a waitlist to be allocated a psychologist. Ms Stagg also stated that, consistent with the recommendations of Dr Wojnarowska and Ms Hasson, Mr Dempster's treatment needs would be best met through individual psychological intervention and therefore no community based programs have been considered.[83]
The risk that a serious offence will be committed if a continuing detention or supervision order is not made - s 7(3)(h)
  1. The psychiatric and psychological evidence supports the finding that Mr Dempster is at a high risk of committing further serious offences. This assessment of risk takes into account his ongoing treatment needs. I have outlined the evidence that supports that finding. Mr Dempster has undertaken a number of treatment programs, however, it is clear that the treatment programs have not adequately mitigated the risk that a serious offence may be committed if a continuing detention or supervision order is not made.
The need to protect members of the community from that risk - s 7(3)(i)
  1. There is a need to protect the community from the risk that Mr Dempster will commit a serious offence.
  2. Since being released on the interim supervision order, Mr Dempster has committed no further serious offences under the HRSO Act. He has attended supervision and assessment interviews and engaged counselling with the Wungening Aboriginal Corporation. Mr Dempster has not returned a positive urinalysis test.
  3. However, there have been two convictions for contraventions and numerous compliance issues. The first conviction concerns a contravention of condition 34 concerning contact with children under the age of 18 years.[84] The contraventions arose on 5 October 2022, after Mr Dempster attended an address occupied by a male relative whom he visits on a regular basis. On this occasion, whilst at the residence, the relative's four young daughters under the age of 13 were present.
  4. The second contravention offence contrary to s 80(1) of the HRSO Act involved Mr Dempster breaching his curfew requirement under condition 4 of his interim supervision order. On 15 October 2022, Mr Dempster telephoned the after-hours monitoring unit to advise that he would be delayed by 5 to 10 minutes. However, Mr Dempster did not return home until 7:31 pm and was therefore in breach of his curfew.
  5. A global fine of $1200 was imposed by the learned sentencing Magistrate.

Community Supervision Assessment Report - Ms Hazzard

  1. Ms Hazzard provided a Community Supervision Assessment Report and gave testimony at the hearing on 9 November 2022 and also at the hearing on 24 May 2023.
  2. Ms Hazzard acknowledges that Mr Dempster has generally complied well with the conditions of his interim supervision order and has been able to acknowledge the positive aspects of the order and the impact that it has had on him.[85] Ms Hazzard outlines general compliance issues that arose during the period of the interim supervision order,[86] but concluded that Mr Dempster has demonstrated his ability to positively engage with the supervision order.[87]
  3. Ms Hazzard produced a proposed supervision order with numerous conditions. Dr Wojnarowska and Ms Hasson agreed generally with the proposed conditions of the draft supervision order.
  4. Ms Hazzard observed that both Dr Wojnarowska and Ms Hasson agreed that strict conditions around illicit substances and alcohol were pertinent to managing Mr Dempster in the community.[88] Given Mr Dempster's offending history and substance reporting obligations under the Community Protection (Offender Reporting) Act 2004, conditions restricting contact with children have been proposed. Ms Hazzard stated the proposed conditions were discussed with Ms Hasson and Dr Wojnarowska and that they supported the restrictions. Ms Hazzard observed that Ms Hasson acknowledged that the restrictions imposed concerning contact with children will impact on Mr Dempster's connection to family but noted the conditions do allow for CCO discretion. The conditions also allow for attempts to be made in assisting Mr Dempster in maintaining contact with family members under the age of 18 where appropriate and where the risk is manageable.[89]
  5. In respect to the proposed curfew requirement, Ms Hazzard observed that both Dr Wojnarowska and Ms Hasson supported a curfew requirement to assist in providing Mr Dempster stability and structure in addition to limiting his potential access to negative peers and high risk situations. Ms Hazzard observed this particular condition has been designed to allow Mr Dempster's CCO to alter or remove the curfew if deemed appropriate. The curfew conditions also enable the CCO to maintain and reinstate the curfew requirements should any concerning behaviours or patterns identified by his movements be detected.
  6. Ms Hazzard recommended both internet and electronic devices be subject to stringent conditions for the reason that Mr Dempster has engaged in contravening behaviours through the use of electronic devices in the community to intentionally hide his interactions and behaviours. Whilst acknowledging this is not closely linked to his offending behaviour, Mr Dempster has not been truthful at times concerning his behaviour. Ms Hazzard recommended that Mr Dempster be subject to GPS monitoring and that his movements and associations be monitored by a reporting requirement to the CCO. These proposed conditions were discussed at length with both Ms Hasson and Dr Wojnarowska, and both expressed support for the conditions.
  7. During her testimony, Ms Hazzard expressed a concern in respect to the suitability of Mr Dempster's current accommodation. Similarly, Dr Wojnarowska stated that the current accommodation, whilst stable, is an 'unrealistic long-term option given the recent contraventions'.[90]
  8. In her updated Community Supervision Assessment Report, dated 17 May 2023, Ms Hazzard stated that Mr Dempster has limited accommodation options at this time and no confirmed accommodation to be released to.[91] Ms Hazzard outlined the attempts to secure accommodation with Mr Dempster's relatives and with non-governmental organisations. Mr Dempster is on the active wait-turn public housing application list. The possibility of obtaining a private rental via the National Rental Affordability Scheme (NRAS) was considered but was determined not to be currently a viable option given the lack of properties. Ms Hazzard observed that Mr Dempster has limited to no rental history or references.[92]

Other accommodation options

  1. Counsel for Mr Dempster submitted that Mr Dempster accepts that his current accommodation is not suitable. However, counsel submitted that suitable accommodation is available with a relative at Hay Street, Kalgoorlie.[93] In The State of Western Australia v Dempster [No 2][94] Derrick J considered whether the Hay Street address was suitable accommodation should Mr Dempster be released on an interim supervision order. Derrick J outlined the evidence and made the following findings:
    1. With respect to the Hay Street address, I acknowledge all the points made by the respondent's counsel in support of the contention that the address is suitable. I recognise the force in the submission that to release the respondent to an address in the area of his traditional lands and at which he will have family support will operate as a protective factor. I accept the genuineness of Ms Thomson's expressed desire to support the respondent and the genuineness of her belief that she will be able to do so. I also accept that the respondent's currently expressed intentions to abstain from alcohol are genuine. Ultimately, however, I have concluded that the Hay Street address is not a suitable address for the respondent to be released to. I have come to this conclusion given the proximity of the Hay Street address to the residence of the victim of the index offence. In my view the Hay Street address is simply too close to the residence of the victim of the index offence to permit the conclusion that to release the respondent on an interim supervision order that requires him to live at the Hay Street address will ensure adequate protection of the community, specifically the victim of the index offence, against the risk that he will commit a 'serious offence' involving violence. In arriving at this conclusion I have taken into account the following matters:
      1. The risk that the respondent will, despite his best intentions and despite the conditions of the draft order, relapse into alcohol use;
      2. The clear causal relationship between the respondent's use of alcohol and his violent offending;
      3. The nature of the respondent's past relationship with the victim of the index offence;
      4. The extreme nature of the violence that the respondent inflicted on the victim of the index offence;
      5. The most recent assessments of the risk of the respondent committing further violent offences;
      6. The fact that at the time of committing the index offence the respondent was subject to a protective bail condition that prohibited him from having contact with the victim; and
      7. The respondent's past demonstrated inability to comply with the obligations of community based dispositions.
    2. To put the matter another way, in my opinion the risk that would be posed to the victim of the index offence by releasing the respondent on an interim supervision order in terms of the draft order to live at an address which is less than 2.5 km away from where the victim resides is such that it cannot be said that to take this course of action will ensure adequate protection of the community, most specifically the victim, against the risk that the respondent will commit a 'serious offence' of violence.
  2. During the restriction application hearing on 23 May 2023, I ordered that the State file an affidavit addressing whether the victim was still residing in close proximity to the Hay Street address. On 2 June 2023, Mr Clancy-Lowe, Executive Manager of the Sex Offender Registry, deposed that the victim's address in Kalgoorlie is situated 2.5 kilometres from the Hay Street address.
  3. I agree with the reasoning of Derrick J that the close proximity of the victim to the proposed address renders that address unsuitable. Counsel submitted that the presence of a police station within close proximity and the ordering of exclusion zones will satisfactorily manage the issue of the victim in close proximity.[95] After careful consideration, I find that the proposed Hay Street address will not provide suitable accommodation.
Assessment and conclusion of the Restriction Order Application & Contravention Application
  1. After considering the evidence in respect of the factors in s 7(3) of the HRSO Act, and finding that evidence to be acceptable and cogent, I am satisfied to a high degree of probability that Mr Dempster currently presents an unacceptable risk to the community and that he would commit a serious offence. Further, I am satisfied that it is necessary to make a restriction order to adequately protect the community. Counsel for Mr Dempster conceded that a restriction order should be made.
  2. I have made that finding for the following reasons.
  3. First, Mr Dempster has an extended history of offending characterised by violence inflicted upon members of the community.
  4. Second, both Dr Wojnarowska and Ms Hasson gave cogent and reliable evidence that supports a finding that Mr Dempster is at high risk of reoffending in a violent manner. I am of the view that the risk of violent offending in the future involves the risk of committing serious offences as defined in the HRSO Act.
  5. Third, Mr Dempster has outstanding treatment needs that will require significant and sustained efforts to reduce his risk of reoffending in a violent manner.
Continuing detention order or supervision order
  1. I must now decide whether Mr Dempster should be detained pursuant to a continuing detention order or be released into the community under a supervision order. The State submits that Mr Dempster should be subject to a continuing detention order for the reason that Mr Dempster will not substantially comply with the standard conditions of a supervision order and secondly, in any event, there is no suitable accommodation for Mr Dempster in the community. In the absence of suitable accommodation Mr Dempster cannot be released on a supervision order.
  2. The Court must choose the order that is the least invasive to Mr Dempster's liberty, while ensuring an adequate degree of protection of the community.
  3. In considering whether a supervision order will adequately protect the community, it is necessary to take into account any conditions which can be placed on a supervision order so as to ensure adequate protection of the community, the rehabilitation of Mr Dempster and his care and treatment, and to also ensure the adequate protection of victims of offences committed by Mr Dempster.[96]
  4. I must also be satisfied, on the balance of probabilities, that Mr Dempster will substantially comply with the standard conditions of the order under s 30 of the HRSO Act. The onus is on Mr Dempster to satisfy the Court that he will so comply.
  5. I am satisfied, on the balance of probabilities, that Mr Dempster will substantially comply with the standard conditions of a supervision order as set out under s 30 of the HRSO Act. I find that the evidence fully supports a finding that if suitable accommodation was available, then a supervision order would provide adequate protection of the community.
  6. First, both Dr Wojnarowska and Ms Hasson expressed the opinion that the risk may be managed in the community by a supervision order.
  7. Second, that prior to the contravention convictions, Mr Dempster 'demonstrated his ability to positively engage with the supervision process and make requests to engage in activities or seek amendments to conditions, such as his curfew, and has further demonstrated his ability to take on feedback and engage in conversation should requests be inappropriate or require more information.'[97]
  8. Third, the contraventions involving the assault, breaching the curfew and consuming alcohol occurred in the context of Mr Dempster residing in accommodation that was unsuitable. Regrettably, the one bedroom residence had many visitors who would consume alcohol which presented a difficult challenge for Mr Dempster.
  9. Fourth, Mr Dempster has complied with the urinalysis testing requirement whilst in the community demonstrating a commitment to his rehabilitation.
  10. Fifth, Mr Dempster has participated in numerous programs over many years and the reports have consistently stated that he was consistent with his attendance, an enthusiastic participant who made gains, and was motivated to rehabilitate.
  11. Sixth, Mr Dempster's background is characterised, particularly during his formative years, by dysfunction and disadvantage, which are all too often characteristics of Aboriginal offenders who come before the courts in Western Australia. Mr Dempster's chronic substance abuse and its role in the offending reflect the socioeconomic circumstances of the environment in which he grew up. The imposition of a supervision order will be a challenge. It is necessary that there be an understanding that Mr Dempster is doing his best to rehabilitate in the community. There will be lapses but infringements should not be seized upon as an opportunity to deny Mr Dempster the opportunity to be a member of the community.
  12. Although Mr Dempster has relapsed and contravened his supervision order, I am satisfied that he is person who is committed to his rehabilitation and should be given the opportunity to rehabilitate in the community.
  13. Regrettably, Mr Dempster does not have any suitable accommodation. It is not possible to release Mr Dempster to a supervision order if no suitable accommodation is available. For the reason that Mr Dempster does not have a suitable home I must order that he be detained under the HRSO Act.
Conclusion
  1. I have determined that it is necessary to make a restriction order in respect to Mr Dempster to ensure the adequate protection of the community against the unacceptable risk that he will commit a serious offence. Further, I have determined that the risk of reoffending cannot be adequately managed in the community with the imposition of a supervision order for the reason that Mr Dempster does not have suitable accommodation. Therefore, Mr Dempster will be subject to a continuing detention order under the HRSO Act.
  2. Given that Mr Dempster, is subject to a detention order, it is not necessary to make any orders in respect to the contravention application concerning the interim detention order.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CB
Associate to the Honourable Justice McGrath

16 JUNE 2023

[1] The State of Western Australia v Dempster [2022] WASC 135.
[2] The State of Western Australia v Dempster [No 2] [2022] WASC 187.

[3] Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246 [10].

[4] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [66], [68] (Wheeler JA); Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [21] (Steytler P & Buss JA).
[5] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [28] (Steytler P & Buss JA).
[6] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [34] (Steytler P & Buss JA).
[7] The State of Western Australia v Garlett  [2021] WASC 387. 
[8] The State of Western Australia v Garlett  [2021] WASC 387  [133].
[9] The State of Western Australia v Garlett  [2021] WASC 387  [135].

[10] The State of Western Australia v Garlett  [2021] WASC 387  [139].
[11] The State of Western Australia v D'Rozario [No 3] [2021] WASC 412.
[12] The State of Western Australia v D'Rozario [No 3] [2021] WASC 412, [21].
[13] The State of Western Australia v D'Rozario [No 3] [2021] WASC 412, [21].
[14] Italiano v The State of Western Australia [2009] WASCA 116, [46].
[15] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297, [63] (Wheeler JA).

[16] High Risk Serious Offenders Act 2020 (WA), s 48.
[17] Dangerous Sexual Offenders Act 2006 (WA), s 3.

[18] High Risk Serious Offenders Act 2020 (WA), s 48(2).
[19] Director of Public Prosecutions (WA) v Decke [2009] WASC 312, [14].
[20] The State of Western Australia v Latimer [2006] WASC 235, [24]; Director of Public Prosecutions (WA) v Decke [2009] WASC 312, [15].

[21] Director of Public Prosecutions (WA) v Hart [2019] WASC 4, [52].
[22]The State of Western Australia v PAS [No 2] [2021] WASC 59.
[23] Exhibit 1, Book of Materials.
[24] Exhibit 3, Supplementary Book of Materials.
[25] High Risk Serious Offenders Act 2020 (WA), s 7(3)(c).
[26] High Risk Serious Offenders Act 2020 (WA), s 7(3)(d).

[27] Exhibit 1, Book of Materials, Chronology of offending, p 20-24.
[28] Exhibit 6, Updated Certified Criminal History of Mr Dempster, dated 23 May 2023.
[29] Exhibit 1, Book of Materials, Western Australia Criminal History, p 1-19; Exhibit 6, Updated Certified Criminal History of Mr Dempster, dated 23 May 2023.
[30] Exhibit 1, Book of Materials, Indictment KAL91 of 2018, p 157.
[31] Exhibit 1, Book of Materials, Amended Statement of Facts - Indictment KAL 91 of 2018, p 158-160.
[32] Exhibit 1, Book of Materials, Sentencing transcript 12/08/2019, p 177-195.
[33] Exhibit 1, Book of Materials, Indictment KAL 54 of 2011, p 197.
[34] Exhibit 1, Book of Materials, Statement of Material Facts, p 198-199.
[35] Exhibit 1, Book of Materials, Prosecution Notice lodged 20 May 2005, charge number KA2300/2005, p 217.
[36] Exhibit 1, Book of Materials, Statement of Material Facts, p 221.
[37] Exhibit 1, Book of Materials, Sentencing Transcript 26/10/05, p 223-225.
[38] Exhibit 1, Book of Materials, Statement of Material Facts, p 262
[39] Exhibit 1, Book of Materials, Statement of Material Facts, p 278.
[40] Exhibit 1, Book of Materials, Statement of Material Facts, p 286.
[41] Exhibit 1, Book of Materials, Prosecution Notice lodged 14 March 2017, charge number KA 1068/2017 1069/2017, p 320-321.

[42] Exhibit 1, Book of Materials, Statement of Facts, p 240-243.
[43] Exhibit 1, Book of Materials, Western Australia Criminal History, p 1-19.
[44] Exhibit 1, Book of Materials, Statement of Facts, p 265.
[45] Exhibit 1, Book of Materials, Western Australia Criminal History, p 1-19.
[46] Exhibit 1, Book of Materials, Statement of Material Facts, p 301-304.
[47] Exhibit 1, Book of Materials, Statement of Material Facts, p 303.
[48] Exhibit 1, Book of Materials, Sentencing Transcript 13 May 2013, p 313.
[49] Exhibit 1, Book of Materials, Western Australia Criminal History, p 1-19.
[50] Exhibit 1, Book of Materials, Pre-sentence Report, p 315-319.
[51] ts 4 (22/03/2023); Exhibit 6, Updated Certified Criminal History of Mr Dempster, dated 23 May 2023.

[52] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307, [178] (Murray AJA).
[53] Exhibit 1, Book of Materials, Report of Dr Wojnarowska dated 1 October 2022, p 494.
[54] Exhibit 1, Book of Materials, Report of Ms Hasson, p 449-450; Exhibit 1, Book of Materials, Report of Dr Wojnarowska, p 471-500.
[55] Exhibit 1, Book of Materials, Indigenous Men Managing Anger and Substance Use Treatment Completion Report, p 339-341.

[56] Exhibit 1, Book of Materials, Cognitive Brief Intervention Program Report, p 345-347.
[57] Exhibit 1, Book of Materials, Pathways non-completion Report, p 359-362.
[58] Exhibit 1, Book of Materials, Connect and Respect Program Report, p 374-378.

[59] Exhibit 1, Book of Materials, Connect and Respect Completion Report, p 377.
[60] Exhibit 1, Book of Materials, Pathways Program Completion Report, p 380-387.
[61] Exhibit 1, Book of Materials, Report of Dr Wojnarowska, p 471-500.
[62] Exhibit 1, Book of Materials, Report of Dr Wojnarowska, p 471-500.
[63] Exhibit 1, Book of Materials, Report of Ms Hasson, p 434-470.

[64] Exhibit 1 Book of Materials, Report of Dr Wojnarowska, p 486.
[65] Exhibit 1, Book of Materials, Report of Dr Wojnarowska, p 486.
[66] Exhibit 1 Book of Materials, Report of Dr Wojnarowska, p 488.
[67] Exhibit 1, Book of Materials, Report of Dr Wojnarowska, p 488.
[68] Exhibit 1, Book of Materials, Report of Dr Wojnarowska, p 489-496.
[69] Exhibit 1, Book of Materials, Report of Dr Wojnarowska, p 496-497.

[70] Exhibit 1, Book of Materials, Report of Dr Wojnarowska, p 498-499.
[71] Exhibit 1, Book of Materials, Report of Dr Wojnarowska, p 499.
[72] Exhibit 1, Book of Materials, Report of Dr Wojnarowska, p 500.
[73] Report of Dr Wojnarowska dated 2 December 2022, p 1.
[74] Report of Dr Wojnarowska dated 28 March 2023, p 1.

[75] Exhibit 1, Book of Materials, Report of Ms Hasson, p 469.
[76] Exhibit 1, Book of Materials, Report of Ms Hasson, p 453.
[77] Exhibit 1, Book of Materials, Report of Ms Hasson, p 460-461.

[78] ts 124 (9/11/2022).
[79] Exhibit 1, Book of Materials, Report of Ms Hasson, p 467.
[80] Report of Ms Hasson dated 30 November 2022, p 2.
[81] Report of Ms Hasson dated 30 November 2022, p 2-3.
[82] Exhibit 3, Supplementary Book of Materials, Addendum Psychological Risk Assessment Report, p 44.
[83] Exhibit 1, Report of Ms Stagg, p 433.
[84] Exhibit 2, Prosecution Notices lodged 12 November 2022, charge numbers PE 49759/2022-49962/2022 & Statement of Material Facts.
[85] Exhibit 1, Book of Materials, Report of Ms Hazzard, p 527.
[86] Exhibit 1, Book of Materials, Report of Ms Hazzard, p 508-518.
[87] Exhibit 1, Book of Materials, Report of Ms Hazzard, p 512.
[88] Exhibit 1, Book of Materials, Report of Ms Hazzard, p 526.
[89] Exhibit 1, Book of Materials, Report of Ms Hazzard, p 526.
[90] ts 94 (9/11/2022).

[91] Exhibit 3, Supplementary Book of Materials, Community Assessment Report of Ms Hazzard dated 17 May 2023, p 46.
[92] Exhibit 3, Supplementary Book of Materials, Community Assessment Report of Ms Hazzard dated 17 May 2023, p 59-65.
[93] ts 240-241 (24/05/2023).
[94] The State of Western Australia v Dempster [No 2] [2022] WASC 187.

[95] ts 234-239 (24/05/2023).
[96] High Risk Serious Offenders Act 2020 (WA), s 30(5).
[97] Exhibit 1, Report of Ms Hazzard, p 512.

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