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THE STATE OF WESTERN AUSTRALIA -v- MATIAY [No 2] [2023] WASC 436 (15 November 2023)

Last Updated: 15 November 2023


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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : THE STATE OF WESTERN AUSTRALIA -v- MATIAY [No 2] [2023] WASC 436

CORAM : MCGRATH J

HEARD : 8 NOVEMBER 2023

DELIVERED : 15 NOVEMBER 2023

FILE NO/S : SO 10 of 2021

BETWEEN : THE STATE OF WESTERN AUSTRALIA

Applicant

AND

MAJIEK JAMES MATIAY

Respondent


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Criminal law - High risk serious offender - Application for restriction order - Whether unacceptable risk that respondent will commit a serious offence if not subject to restriction order - Whether necessary to make a restriction order to ensure adequate protection of the community - Whether community can be adequately protected by supervision order - Turns on own facts


Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

Restriction order made
Supervision order made

Representation:

Counsel:

Applicant
:
Ms F M Allen
Respondent
:
Ms A Fedele


Solicitors:

Applicant
:
State Solicitor's Office
Respondent
:
Legal Aid WA


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


MCGRATH J:

  1. On 1 September 2021, the State of Western Australia applied for a restriction order in respect of Mr Matiay under s 48 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act).[1] The State contends that Mr Matiay 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, that should he be released, then he be subject to a supervision order under the HRSO Act.
  2. On 22 October 2021, the preliminary hearing was heard before Quinlan CJ who determined that there were reasonable grounds for believing the Court might, in accordance with s 7 of the HRSO Act, find that Mr Matiay is a high risk serious offender.[2] Quinlan CJ ordered that Mr Matiay be subject to a detention order pending the determination of this restriction order application. Regrettably, Mr Matiay did not have suitable accommodation and therefore, had to be detained under the HRSO Act. Quinlan CJ also stated that Mr Matiay was not disposed to engaging with the efforts to assist him. However, Quinlan CJ stated that Mr Matiay ought be able to be managed in the community subject to a supervision order and therefore, steps should be taken to engage with him and to provide suitable accommodation.
  3. The hearing of the application was listed for 24 March 2022. However, that hearing was adjourned due to a lack of suitable accommodation. The hearing has been subject to subsequent orders adjourning the hearing date. On 23 February 2022, I made orders in the terms of a Minute of Consent Order filed by the parties that Quinlan CJ's orders be amended so that Dr Wynn Owen was to prepare a psychiatric report for this application pursuant to s 74 of the HRSO Act. The hearing was relisted for 26 May 2022. Since then, the matter has been subject to many administrative adjournments pursuant to the parties' Minutes of Consent Orders. Between the preliminary hearing before Quinlan CJ on 22 October 2021 and the hearing of this application on 8 November 2023, the matter has been administratively adjourned nine times. The application has been adjourned for a multiplicity of reasons including, amongst other things, the lack of suitable accommodation, a subsequent offence committed by Mr Matiay while subject to his interim detention order, and the need to obtain further psychiatric reports. Regrettably, the result is that Mr Matiay has been on an interim detention order for over two years.
  4. Counsel for Mr Matiay submitted that whilst a restriction order may be made, he should be released on a supervision order and not detained. At the hearing, the State submitted that whilst Mr Matiay should be subject to a restriction under the HRSO Act, it would be open for the Court to find that a supervision order would adequately manage the risk of Mr Matiay reoffending. I accept that submission is properly made.
  5. I have determined that it is necessary that Mr Matiay 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 have further determined that subjecting Mr Matiay to a supervision order for a period of five years under s 27 of the HRSO Act will provide adequate protection to the community.
  6. In these reasons, I will consider the following:
    1. The relevant legal principles;
    2. The evidence received at the hearing;
    3. A consideration of the factors under s 7 of the HRSO Act; and
    4. Assessment and conclusion.
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 Matiay was serving a term of imprisonment for a 'serious offence' as defined by s 3 and s 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).

10 Mr Matiay has committed offences that come within this category. Mr Matiay 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 offences being committed in the future because other offences may be connected to behaviour which has the real potential to lead to serious offending.[3]

  1. 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'. The State has the onus of satisfying the Court that a person is a high risk serious offender. 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.[4] 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.
  2. 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.[5] 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]
  3. 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 (WA) (DSO Act), read with s 17, and s 7(1) of the HRSO Act, read with s 48'.[8] His Honour observed that s 7(1) of the HRSO Act requires that the Court be satisfied that 'it is necessary to make a restriction order', stating:[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 serious 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.
  4. 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]
  5. A finding that there is an unacceptable risk involves a balancing exercise requiring the Court:[14]
[T]o have regard to, among other things, the nature of the risk (the commission of a serious sexual 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 respondent 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).
  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.
  2. I am required to consider whether, having regard to the likelihood of Mr Matiay offending and the nature of the offence to be committed, the risk of that offending is so unacceptable that, notwithstanding the fact that Mr Matiay 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]
  3. 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 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 s 26 and s 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, the respondent 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 section 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.
Evidence
  1. The State tendered a Book of Materials and a Supplementary Book of Materials that comprised the relevant material pursuant to s 84(5) of the HRSO Act.[22] The State relied upon the oral testimony of three witnesses, namely Dr Wynn Owen, Consultant Forensic Psychiatrist; Ms Hasson, Forensic Psychologist; and Mr Carmichael, Senior Community Corrections Officer at the Department of Justice.
  2. Mr Matiay did not give evidence nor adduce any evidence.
  3. I now turn to the matters relevant to determining whether or not Mr Matiay 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.
Factors under s 7 of the HRSO Act History of offending and antecedents - s 7(3)(c), s 7(3)(d) and s (7)(g)
  1. In deciding whether a person is a high risk serious offender, the Court must have regard to the person'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.
  2. The 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,[23] and as to whether there is any pattern of offending behaviour.[24]
Antecedents
  1. Mr Matiay was born in Sudan on 13 August 1994. He is the second eldest of four children born to his parent's union. Mr Matiay's childhood in Sudan was marked by poverty. The country was involved in a civil war which caused a famine and disease in the community.
  2. Mr Matiay's father, who was abusive to Mr Matiay's mother, left the family home when Mr Matiay was very young. Regrettably, when Mr Matiay's mother remarried, his stepfather was a heavy drinker who was violent towards her. Whilst Mr Matiay was aware of the family violence, he was never a victim of physical, sexual, or emotional abuse. When Mr Matiay was six years of age, his family moved to Egypt where they remained for three years before migrating to Western Australia.
  3. Upon arrival in Western Australia, for the first time, Mr Matiay attended school. Mr Matiay did not speak English which led to behavioural issues. Mr Matiay left school when he was in year 10. Mr Matiay does not have a stable employment history but he has completed a Certificate IV in Building and Construction whilst incarcerated.
  4. Mr Matiay reported a history of alcohol abuse commencing at 12 years of age. He stated that he engaged in binge drinking and by 14 years of age he was using illicit substances including cannabis and methylamphetamine. The abuse of amphetamines has been a significant issue for Mr Matiay for over 12 years.
  5. Mr Matiay is in sound physical health with no prescribed medication.
  6. Mr Matiay is single and has no children. He reported that he has been in one significant intimate relationship which lasted for two years. Regrettably, Mr Matiay disclosed to Ms Hasson that he was physically violent and engaged in intimate partner abuse against his former partner.[25]

Relevant criminal history

  1. Mr Matiay has committed a significant number of offences in Western Australia. Mr Matiay's offending history is outlined in his criminal record which forms part of the material relied upon by the State.[26] The offending history is summarised, in part, in a chronology of offending which was received in evidence.[27] Mr Matiay's criminal record relevantly includes convictions for violent and sexual offences. I will outline the index offending and then turn to Mr Matiay's other convictions, delineating the offences that may constitute serious offences under s 5 and sch 1 of the HRSO Act.

Index offences

  1. On 27 November 2019, Mr Matiay was convicted of the offence of pursuing another with intent to intimidate (commonly referred to as stalking) contrary to s 338E(2) of the Criminal Code (WA). That offence is a 'serious offence' under the HRSO Act. Further, he was convicted of assault occasioning bodily harm contrary to s 317(1) of the Criminal Code, and the offence of committing an obscene act in public contrary to s 202(1)(a) of the Criminal Code.
  2. The convictions arose from two separate incidents. The stalking and assault occasioning bodily harm convictions arose from Mr Matiay following a woman for approximately 20 minutes. When the woman asked Mr Matiay why he was following her he grabbed her by the hair, pulled her head towards the ground and punched her to the face in an uppercut motion multiple times. Mr Matiay then began to pull the woman towards an alleyway. The woman broke free and ran away.
  3. The conviction of an obscene act arose from Mr Matiay exposing his penis to a woman jogging and asking for sex.
  4. The learned Magistrate imposed a total effective sentence of 2 years immediate imprisonment for these offences.

Other serious offences

  1. In June 2015, Mr Matiay committed one offence of attempted aggravated armed robbery contrary to s 392 of the Criminal Code. The offending involved Mr Matiay approaching a 67 year old female at her home address. At that time, Mr Matiay stood in close proximity to her whilst holding a kitchen knife with a 10 cm blade at waist level demanding her car keys. When the victim commenced shouting, Mr Matiay fled the crime scene. A term of 14 months immediate imprisonment was imposed in the District Court.
  2. In April 2011, Mr Matiay committed one offence of aggravated robbery contrary to s 392 of the Criminal Code, one charge of aggravated burglary contrary to s 401 of the Criminal Code, and one charge of stealing a motor vehicle contrary to s 378 of the Criminal Code. The relevant 'serious offence' under the HRSO Act is the aggravated robbery conviction. Mr Matiay was then 17 years of age and therefore, was sentenced in the Children's Court.
  3. The offending involved Mr Matiay entering the residence of a young couple that were at home with their two young children. Mr Matiay entered by kicking-in the fly screen and then demanding money and the victim's car keys. Mr Matiay punched the victim to the arms and head and stated to the female victim 'if you don't give me money I will let you suck my cock'. Mr Matiay and the co-offenders stole the victim's vehicle and various other items before leaving the premises. A total effective term of three years immediate imprisonment was imposed.
  4. In February 2010, Mr Matiay was convicted of one offence of aggravated robbery contrary to s 392 of the Criminal Code, and one charge of being armed in a way that may cause fear contrary to s 68(1) of the Criminal Code. The serious offence under the HRSO Act is the offence of aggravated armed robbery. At the time Mr Matiay was 16 years of age.
  5. The aggravated armed robbery offending involved Mr Matiay and a co-offender approaching three juvenile males demanding their mobile phones. When the juveniles declined to provide their mobile phones, Mr Matiay commenced hitting the victim to the head area. Mr Matiay and the co‑offender then searched through the victim's backpack, taking house keys. The charge of being armed in a way that may cause fear arose from Mr Matiay standing in the middle of a road threatening a motorist with an axe. A total effective sentence of 12 months immediate imprisonment was imposed.
  6. In December 2008, Mr Matiay committed one offence of aggravated robbery contrary to s 392 of the Criminal Code. Mr Matiay was then 14 years of age. The offending involved Mr Matiay and co-offenders attending at an address and stealing a number of items, including keys to a vehicle. When the owner observed her vehicle being stolen she approached Mr Matiay and the co-offenders. One of the co-offenders then punched the victim to the face with a clenched fist which caused her to fall to the ground and be rendered unconscious. At that time, Mr Matiay ran over to the victim and smashed a glass bottle over her face causing a large gash on her forehead and cut to her lip. Mr Matiay then kicked the victim four times to the head with both his feet while she was unconscious. Whilst the victim was unconscious, Mr Matiay and the co-offenders stole the motor vehicle.
  7. At the sentencing hearing, Mr Matiay was also sentenced with respect to one charge of stealing a motor vehicle contrary to s 378 of the Criminal Code, and one count of aggravated burglary contrary to s 401 of the Criminal Code. A total effective sentence of 1 year 3 months immediate imprisonment was imposed.

Other offending

  1. In 2022, Mr Matiay was convicted of one offence of committing an indecent act contrary to s 203(1)(b) of the Criminal Code. The offending occurred at Hakea Prison where Mr Matiay exposed his penis through his shorts in the presence of a woman who was conducting a court ordered psychiatric assessment.[28] The learned Magistrate imposed a $1500 fine.
  2. In 2018, Mr Matiay was convicted of one offence of engaging in an obscene act in public contrary to s 202 of the Criminal Code. The offending involved Mr Matiay walking towards the victim in a park and exposing his semi-erect penis in full view of the victim. The learned Magistrate imposed a $1000 fine.
  3. In 2017, Mr Matiay was convicted of one offence of assault occasioning bodily harm contrary to s 317 of the Criminal Code. The offending involved Mr Matiay punching the victim, who was another prisoner, repeatedly to the right side of his face causing the victim to fall backwards to the ground. One of the victim's teeth was dislodged as a result of the assault. The learned Magistrate imposed a 1 month concurrent term of imprisonment.
  4. In November 2015, Mr Matiay was convicted of one offence of assaulting a public officer contrary to s 318 of the Criminal Code. The victim was a male prison officer who was punched to the left side of the jaw by Mr Matiay. The learned Magistrate imposed a $1000 fine.
  5. In 2010, Mr Matiay was convicted of four counts of aggravated burglary contrary to s 401 of the Criminal Code, one offence of wilfully and unlawfully destroying property contrary to s 444 of the Criminal Code, and charges of breaching a youth community based order by reoffending. Mr Matiay was sentenced to various periods of detention.
  6. In September 2009, Mr Matiay was convicted of six charges of stealing contrary to s 378 of the Criminal Code, and one further charge of aggravated burglary contrary to s 401 of the Criminal Code.

Prison Incident reports

  1. The evidence in the Incidents and Occurrences report prepared by the Department of Justice demonstrates that Mr Matiay has also incurred numerous adverse incident reports and prison charges whilst incarcerated. During his most recent period of incarceration, Mr Matiay was charged on two occasions with assaulting other prisoners. In addition, Mr Matiay has been reported for other incidents which involve him behaving in an abusive or threatening manner, and also for property damage.[29]
Propensity to commit serious offences in the future ‑ s 7(3)(c) & Whether or not there is any pattern of offending behaviour ‑ s 7(3)(d)
  1. The word 'propensity' is taken to have its ordinary meaning in the context of the criminal law. In Director of Public Prosecutions (WA) v GTR, Murray AJA stated that:[30]
[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 Matiay's criminal record demonstrates a propensity or tendency to commit serious offences generally. Mr Matiay has been convicted of serious offences as defined in the HRSO Act and also other offences of violence. The seriousness of his offending, and more recently his sexual offending, has escalated over time. I am satisfied that Mr Matiay has the propensity for anti-social behaviour, aggression and committing serious offences of violence, in particular when under the influence of illicit drugs.
Efforts to address offending behaviour and whether or not the participation in any rehabilitation program has had a positive effect ‑ s 7(3)(e) and s 7(3)(f)
  1. I must also consider if Mr Matiay 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. In November 2013, Mr Matiay commenced the Think First program. He completed 7 of the 13 sessions before leaving the program. During the program, Mr Matiay tested positive for illicit drugs and spent time in detention. He was, however, absent on other occasions because he did not wish to attend. The facilitators stated that Mr Matiay demonstrated gains in terms of awareness of the factors that contributed to his offending but many issues remained outstanding. The facilitators recommended that Mr Matiay engage in other intervention programs to address outstanding treatment needs.
  3. Mr Matiay has not completed any programs during his most recent term of imprisonment. He was recommended for a Pathways program, however, he decline to participate because he did not believe that he needed the program.[31]
Any other reports or assessments relating to the respondent - s 7(3)(b)

Community Supervision Assessment Reports

  1. Mr Carmichael, Senior Community Corrections Officer gave evidence at the hearing. I also received a Community Supervision Assessment Report dated 24 March 2023, which outlines Mr Matiay's behaviours to be managed and the strategies to be implemented by reference to the opinions of Dr Wynn Owen and Ms Hasson.[32] I also received two subsequent Updated Community Supervision Assessment Reports dated 29 August 2023,[33] and 1 November 2023 respectively.[34]
  2. In the Updated Community Assessment Report dated 29 August 2023, Ms Goode confirms that accommodation had become available under the HRSO Supported Accommodation Program with Uniting WA. In the further Updated Community Assessment Report dated 1 November 2023, Mr Carmichael outlined the result of the Desktop Spatial Analysis prepared by the WA Police. The report confirmed that one police station is within 1.3 kms from the proposed accommodation.
  3. The accommodation was assessed as suitable.

Treatment Options Report - Ms Thatcher

  1. Ms Thatcher, Community Corrections Officer, prepared a Treatment Options Report dated 28 March 2023.[35] The report is based upon the assessments of Dr Wynn Owen and Ms Hasson. Ms Thatcher observed that Dr Wynn Owen determined that it is necessary that Mr Matiay receive individual psychological counselling sessions to address his self-awareness, stress management, and problems with intimate relationships.[36] Further, the report observes that Ms Hasson recommended that Mr Matiay be given counselling with the Forensic Psychological Service to assist with his reintegration, develop an awareness of his risk factors, and provide support during stressful events.[37]
  2. Ms Thatcher states that in the event that Mr Matiay is released to a supervision order, he will need to be assessed by the FPIT team for individual counselling.

Psychiatric report prepared under s 74 and extent to which the respondent cooperated with examination ‑ s 7(3)(a) - Dr Wynn Owen

  1. Dr Wynn Owen, Consultant Forensic Psychiatrist, produced one report dated 15 March 2023 and an Addendum Report dated 3 May 2023,[38] and also gave oral testimony at the hearing of the application. Dr Wynn Owen stated that Mr Matiay engaged in two interviews with him.[39]
  2. Dr Wynn Owen diagnosed Mr Matiay with substance abuse disorder (methylamphetamine) currently in remission, anti-social personality disorder and post-traumatic stress disorder (PTSD). In his Addendum Report, Dr Wynn Owen first diagnosed Mr Matiay with PTSD, expressing the opinion that this disorder is a dynamic contributor to his risk of future serious offending.[40]
  3. Dr Wynn Owen assessed Mr Matiay's risk of future violent offending and sexual offending using the Violence Risk Appraisal Guide, Revised (VRAG-R) actuarial tool, the STATIC-99R (2016), the HCR-20 V3 structured professional guidelines and the RSVP structured clinical judgment framework.
  4. On the STATIC-99R, Mr Matiay's score placed him 'well above average risk' for committing a future sexual offence. Offenders with a similar score as Mr Matiay had a 42.2% average likelihood of reoffending within 5 years of release, with a range of 32.6% to 52.5%.[41]
  5. The VRAG-R is an actuarial risk tool designed to assess the likelihood of violent or sexual offending among male offenders. Mr Matiay's score on the VRAG-R was in the highest risk category (known as Bin 9). Offenders with the same score as Mr Matiay on release had a 76% likelihood of committing a new violent offence within 5 years of release.
  6. Using the HCR-20 V3 tool in his structured professional judgment risk assessment, Dr Wynn Owen identified that Mr Matiay has a number of historical and clinical risk factors which are associated with violent recidivism.[42]
  7. Dr Wynn Owen identified historical risk factors that are present for Mr Matiay, including problems with violence; history of violence with other anti-social behaviour; problems with relationships; problems with employment; problems with substance abuse; problems with personality disorder; problems with traumatic experiences; problems with violent attitudes; and problems with treatment or supervision response.
  8. Dr Wynn Owen also identified a number of clinical risk factors (current issues) present including recent problems with insight; recent problems with violent ideation or intent; recent problems with instability; and recent problems with treatment or supervision response. Dr Wynn Owen further identified future problems present including problems with professional services and plans; future problems with personal support; and future problems with treatment or supervision support.
  9. In respect to risk scenarios, Dr Wynn Owen stated that violent behaviour by Mr Matiay is most likely to be associated with substance abuse and intoxication, poor management of negative affect, social isolation, and marginalisation.[43] The violence is likely to result in physical and psychological harm to the victim. Dr Wynn Owen stated that in the absence of treatment and support, the pattern of violent behaviour is likely to continue.[44]
  10. Dr Wynn Owen stated that there is a high likelihood of future violent behaviours by Mr Matiay in the absence of treatment and support. The presence of anti-social personality disorder, substance use disorder, lack of pro-social supports, breakdown of relationships with family and lack of employment all contribute to the high likelihood that Mr Matiay will commit another violent offence.[45]
  11. Dr Wynn Owen utilised the RSVP structured clinical judgment framework and identified Mr Matiay's present risk factors based on sexual violence history as including chronicity of sexual violence, escalation of sexual violence, and physical coercion in sexual violence.[46] In respect to psychological adjustment risk factors, Dr Wynn Owen stated that factors present were Mr Matiay's extreme minimisation or denial of sexual violence, problems with self-awareness, and problems with stress or coping. In respect to mental disorder risk factors, Dr Wynn Owen stated that risk factors present included problems with substance abuse. Regarding social adjustment risk factors, Dr Wynn Owen stated that they included problems with intimate relationships, with employment, and non-sexual criminality.[47]
  12. In conclusion, Dr Wynn Owen expressed the opinion that Mr Matiay has a well-established pattern of violent behaviour and a recent established pattern of sexual offending, which appears to be escalating.[48]
  13. Dr Wynn Owen further stated that Mr Matiay's plans for release are superficial and lacked depth, observing that Mr Matiay has not completed any treatment to address criminogenic treatment needs that have been identified for some time.[49]
  14. Therefore, Dr Wynn Owen in his report expressed the opinion that Mr Matiay presents a moderate risk to high risk of committing a future serious violent offence if not subject to a restriction order. Further, Dr Wynn Owen expressed the opinion that Mr Matiay presents a moderate to high risk of committing a serious sexual offence if not subject to a restriction order. Therefore, the risk is in the context of a high likelihood of committing a violent or sexual offence of any kind.[50] During his testimony, Dr Wynn Owen stated that Mr Matiay presented both a high risk of committing a serious violent offence and a serious sexual offence in the future if not subject to a restriction order under the HRSO Act.[51]
  15. During his testimony, Dr Wynn Owen stated that whilst Mr Matiay has not committed a serious sexual offence as defined in the HRSO Act, he has concerns that the indecent act conviction in 2022 supports a finding that there is an ongoing trajectory of escalation. Dr Wynn Owen stated that the indecent act was committed in a controlled prison setting in the absence of intoxication.[52] Accordingly, Dr Wynn Owen has formed the opinion that Mr Matiay presents a high risk of committing a serious sexual offence.
  16. Dr Wynn Owen stated that Mr Matiay's treatment needs may be met through programs to address his violent offending, substance abuse and sexual offending.
  17. Dr Wynn Owen stated in his report that if Mr Matiay is released on a supervision order the duration of that order should be ten years.[53] However, during the hearing, Dr Wynn Owen revised the period expressing the opinion that a five year supervision order would be satisfactory.[54]
Psychological reports prepared under s 74 and extent to which the respondent cooperated with examination - s 7(3)(b) - Ms Hasson
  1. Ms Hasson produced a report dated 8 February 2022 and an Addendum Report dated 26 March 2023, and gave oral evidence at the hearing. Mr Matiay was polite and cooperative during the consultations with Ms Hasson.[55]
  2. Ms Hasson assessed Mr Matiay's risk for sexual reoffending using the Static-99R (2016), which is an internationally recognised risk assessment measure that combines 10 static (unchanging) risk factors that have been shown to be associated with increased risk of re-offending.
  3. In routine samples of sexual offenders, the average 5-year sexual recidivism rate is between 5 and 15%. This means that out of 100 sexual offenders of mixed risk levels, between 5 and 15 would be charged or convicted of a new sexual offence after 5 years in the community. Mr Matiay's Static-99R score was 8, placing him at risk level IVb (well-above average risk) for being charged or convicted of another sexual offence.[56] Mr Matiay's score is comprised of a number of static items including violence involved in the index offence; history of prior non-sexual violence; history of previous sexual offences; history of continued contact with the justice system; and victim selection (extrafamilial and strangers).[57]
  4. Ms Hasson also used the RSVP structured clinical judgment framework to assess the risk of sexual offending. The RSVP is a set of structured professional guidelines. Ms Hasson determined that in respect to the risk of sexual violence history that the chronicity of sexual violence is partially present; diversity of sexual violence is partially present; escalation of sexual violence is possibly present; and physical coercion in sexual violence is possibly present. In respect to the risk factors regarding psychological adjustment, Ms Hasson determined that there was extreme minimisation with denial of sexual violence; problems with self-awareness; problems with stress or coping; and problems resulting from child abuse.
  5. In respect to risk factors regarding mental disorders, Ms Hasson stated that sexual deviance is possibly present, major mental illness is possibly present, and problems with substance abuse and violent ideation are present. In respect to risk factors regarding social adjustment, Ms Hasson determined that problems with intimate relationships are present, problems with non-intimate relationships are present, problems with employment are present and non-sexual criminal activity is present.
  6. In respect to risk factors regarding manageability, Ms Hasson determined that problems with planning are present, problems with treatment are present, and problems with supervision are present.
  7. Ms Hasson assessed Mr Matiay using the Hare Psychopathy Checklist-Revised; 2nd Edition (PCL-R), which is a 20 item scale which uses both historical and dynamic data for the assessment of the psychopathy in research, clinical and forensic settings. Mr Matiay's score indicates that he does not fit the construct of psychopathy.[58] Rather, Mr Matiay's score was comprised of mostly lifestyle and anti-social features which Ms Hasson stated is not surprising given that he has been diagnosed with anti-social personality disorder.[59]
  8. Ms Hasson stated that the most likely scenario of future sexual offending would involve Mr Matiay returning to the community and relapsing into drug use. In such a scenario, Mr Matiay would experience heightened sexual drive and sexual preoccupation. Given that he has a history of poor impulse control and an inability to delay gratification, and without adequate social supports and the absence of an intimate partner, he may act out his sexual inclination. An alternative scenario is that Mr Matiay may opportunistically sexually offend against a woman. In such a scenario, violence or threats of violence may be used by Mr Matiay.[60]
  9. Ms Hasson assessed Mr Matiay's risk of violent offending using the Historical Clinical Risk Management 20 version 3 (HCR-20v3). The HCR-20v3 is a set of structured professional guidelines to assess risk of violence.[61] The HCR-20v3 considers 10 historical risk factors that reflect past adjustment and clinical factors that reflect present adjustment and risk management factors that reflect future adjustment. The risk factors present include a history of problems with violence, anti-social behaviour, substance use, personality disorder, traumatic experiences, and violent attitudes.[62]
  10. Ms Hasson outlined possible risk scenarios of future violence. First, there is a likelihood that Mr Matiay would behave in an aggressive and violent manner towards an individual during the course of him committing an offence such as a burglary or a robbery. Mr Matiay may be in possession of a weapon and in the company of a co-offender.[63] Second, Mr Matiay may be involved in an argument with an individual, either known or unknown to him, and that physical assault may arise from a perceived slight.[64]
  11. Ms Hasson stated that Mr Matiay's risk of reoffending in a violent manner is entrenched. Mr Matiay is assessed as being at a high risk of reoffending with a high likelihood of him engaging in offending behaviour as described in the scenarios outlined. Ms Hasson stated that it is unfortunate that Mr Matiay has never undertaken any programs or counselling and therefore he has not had the opportunity to develop a relapse prevention plan or learn new skills and strategies to avoid reoffending or mitigating risk.[65]
  12. Ms Hasson stated that Mr Matiay has limited insight in his understanding of the internal and external risk triggers for his reoffending in a sexual or violent manner. The lifestyle factors that have contributed to Mr Matiay's risk of reoffending include his absence of employment; unstable lifestyle; limited prosocial supports; limited meaningful engagement in community-based hobbies or pursuits; and reliance on welfare and crime to support himself.
  13. Ms Hasson expressed the opinion that based on the current assessment, Mr Matiay presents as a high risk of serious violent reoffending if not subject to a restriction order. Ms Hasson stated she is confident in her opinion that Mr Matiay is at a risk of committing a serious violent offence but was unable to make a similar assessment of his risk of committing a serious sexual offence. Though nonetheless, Ms Hasson assessed Mr Matiay as being at a high risk of committing a future sexual offence (not serious under the HRSO Act).[66] At the hearing, Ms Hasson confirmed her opinion in that regard stating that whilst Mr Matiay presents as a high risk of committing a sexual offence, she was unable to find that Mr Matiay presents a risk of committing a serous sexual offence as defined under the HRSO Act.[67]
  14. Ms Hasson stated that should Mr Matiay be released on a supervision order that order should be at least 5 years duration. Ms Hasson recommends that if released Mr Matiay should engage with a psychologist to identify treatment or therapy interfering behaviours.[68] Supportive counselling and engagement with a psychologist would be beneficial.[69]
The risk that a serious offence will be committed if a continuing detention or supervision order is not made ‑ s 7(3)(h)
  1. Dr Wynn Owen expressed the opinion that Mr Matiay is at a high risk of committing a serious offence if he is not subject to a restriction order.[70] Ms Hasson expressed the opinion that Mr Matiay is at risk of committing a serious violent offence if not subject to a restriction order and a high risk of committing a sexual offence (not serious).
  2. I am satisfied that the evidence supports the finding that Mr Matiay is at a high risk of committing further serious violent offences and a high risk of committing a sexual offence. I have outlined the likely scenarios of possible offending when considering the opinions of Dr Wynn Owen and Ms Hasson.
The need to protect members of the community from that risk ‑ s 7(3)(i)
  1. I find that there is a need to protect the community from the risk that Mr Matiay will commit a serious violent offence if not subject to a restriction order. I am also of the opinion there is the need to protect the community from the risk that he will commit a sexual offence (not a serious sexual offence) if not subject to a restriction order.
Assessment and conclusion
  1. Counsel for Mr Matiay submitted that I should be satisfied that it is necessary to make a restriction order and that the risk may be managed in the community with a supervision order. Counsel for the State agreed that it is open for the Court to make that finding.
  2. After considering the evidence in respect to the factors under 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 Matiay currently presents an unacceptable risk that he will commit a serious violent offence under the HRSO Act.
  3. Further, I am satisfied that it is necessary to make a restriction order in relation to Mr Matiay to ensure the adequate protection of the community against the unacceptable risk that he will commit a serious offence. I have made this determination for the following reasons.
  4. First, both Dr Wynn Owen and Ms Hasson gave cogent evidence that supports that finding. Second, I am satisfied that Mr Matiay has outstanding treatment needs that require addressing. The treatment needs may be addressed whilst subject to a restriction order. Third, a restriction order will provide the necessary support to Mr Matiay as he develops the necessary coping skills in the community.
  5. Therefore, I am satisfied that a restriction order must be made under the HRSO Act.
Continuing detention order or supervision order
  1. I must now decide whether Mr Matiay should be detained pursuant to a continuing detention order or be released into the community under a supervision order. The applicant accepts that a supervision order will adequately manage the risk that Mr Matiay will commit a serious offence. I am of the view that the applicant's submission is properly made.
  2. The Court must choose the order that is the least invasive to Mr Matiay'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 Matiay, his care and treatment, and to ensure adequate protection of victims of offences committed by the respondent.[71]
  4. I must also be satisfied, on the balance of probabilities, that Mr Matiay has established that he will substantially comply with the standard conditions of the order under s 30 of the HRSO Act.
  5. I find that this is a case where the protection of the community may be properly and satisfactorily advanced by a supervision order, rather than a continuing detention order. Further, I am satisfied, on the balance of probabilities, that Mr Matiay will substantially comply with the standard conditions of a supervision order as set out under s 30 of the HRSO Act.
  6. In my view, there are conditions that may be imposed under a supervision order that will provide adequate protection of the community. I have made this finding for the following reasons.
  7. First, both Dr Wynn Owen and Ms Hasson expressed the opinion that the risk of reoffending can be managed in the community with appropriate monitoring and treatment under a supervision order. Second, Mr Matiay will be subject to stringent monitoring whilst in the community, including being required to reside at stable accommodation. That stringent monitoring also includes GPS monitoring. Third, Mr Matiay will be provided with the guidance of a Community Corrections Officer. Fourth, he will be required to consult with any psychologist, psychiatrist or counsellor as directed.
  8. The conditions that are to be imposed are outlined in the supervision order, which is attached as Annexure One. The conditions are extensive and serve to manage the risk in the community.
  9. In respect to the duration of the supervision order, ultimately Dr Wynn Owen and Ms Hasson expressed the same opinion that the supervision order should be of five years duration. I will impose a supervision order of five years in duration.
Conclusion
  1. For the above reasons, I have determined that it is necessary to make a restriction order in relation to Mr Matiay. Further, I have determined that the risk of reoffending may be adequately managed in the community with the imposition of a supervision order for a period of five years.

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

15 NOVEMBER 2023


ANNEXURE ONE

SUPERVISION ORDER MADE BY THE HONOURABLE JUSTICE MCGRATH ON 15 NOVEMBER 2023

Pursuant to s 48(1)(b) of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act), the Court, having found that the Respondent is a high risk serious offender within the meaning of s 7(1) of the HRSO Act, makes a supervision order (the Order) in relation to the Respondent, for a period of five years from 12 December 2023, on the following conditions:

You, MAJIEK JAMES MATIAY must:

STANDARD CONDITIONS REQUIRED BY THE HRSO ACT

  1. Report to a Community Corrections Officer (CCO) at East Perth Adult Community Corrections Centre, 30 Moore Street, East Perth, within 48 hours of the Order being issued and advise the officer of your current name and address.


2. Report to and receive visits from, a CCO as directed by the Court.

  1. Notify a CCO of every change of the person's name, place of residence, or place of employment at least 2 days before the change happens.

  1. Be under the supervision of a CCO, which includes, complying with any reasonable direction of the officer (including a direction for the purposes of s 31 or s 32 of the HRSO Act).

  1. Not leave, or stay out of, the State of Western Australia without the permission of a CCO.


6. Not commit a serious offence during the period of the Order.

7. Be subject to electronic monitoring under s 31 of the HRSO Act.

ADDITIONAL CONDITIONS
Residence

  1. Take up residence at [address redacted] and spend each night at that address or at a different address only if such different address is approved in advance by a CCO assigned to you.

Reporting to a CCO and supervision by a CCO

  1. Report to, and receive visits from, a CCO at times and at places as directed by the CCO and comply with the lawful orders and directions of a CCO.

  1. Disclose to the CCO the name and details of any paid or unpaid employment, education, training, or volunteer work in which you may intend to commence and allow this employment, education, training, or volunteer work to be confirmed by a CCO.

Attendance at programs or treatment

  1. Consult and engage with any psychiatrist, psychologist, counsellor, mentor, support service and/or support person nominated by a CCO, as directed by a CCO; including any programs designed to address your offending behaviour.

Reporting to WA Police

  1. Report to WA Police at times and at locations as directed by your CCO or WA Police.

  1. If requested, permit WA Police to enter and search your residence and/or vehicle for the purpose of monitoring your compliance with your obligations under the Order and allow the seizure of any such items that the WA Police believes to contravene the conditions of the Order.

Disclosure/Exchange of Information

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

  1. 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 offending history.

Restrictions on contact with Victims

  1. Have no contact, directly or indirectly, with the victims of your current 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.

Criminal conduct

  1. 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.

  1. Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 (WA) 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 (WA) and your use is in accordance with the instructions of the provider.

Curfew

  1. Be subject to a curfew, pursuant to s 32 of the HRSO Act, such that you are to remain at and not leave your approved address as directed by a CCO from time to time.

  1. When subject to a curfew under the Order, present yourself for inspection at the front door or front yard of your approved address, or speak on the telephone, to any CCO or to WA Police or their agent monitoring your compliance with the curfew.

  1. When subject to a curfew under the Order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew.

Medications/Mental Health

  1. Disclose to the CCO on the next occasion you report to that person or agency, any medical practitioner you attend for treatment, to allow for oversight and monitoring to occur regarding your treatment.

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

  1. Permit any medical practitioner, psychologist, psychiatrist, or counsellor to advise the CCO immediately if they become aware, or suspect, that you have ceased, or intend to commence medication or undergo pharmaceutical treatment contrary to the advice of a medical practitioner, or if you appear to have ceased to consult with that medical practitioner on such treatment.

Prevention of high-risk situations

25. Not to possess, or consume, or purchase, or use alcohol.

  1. Not to go or remain at any licensed premises with the exception of cafes, restaurants and sporting venues, unless permitted or required to do so for the following reasons:

a) For the purpose of averting or minimising a serious risk of death or injury to yourself or another person.
b) For a purpose, and for a duration, approved in advance by a CCO.
c) On the order of a CCO or WA Police.

  1. Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a WA Police including accompanying such persons to an appropriate location for such testing to take place.

28. Provide a valid sample pursuant to Condition 27.

  1. Not to remain in the presence of any person who you know, or ought to know, to be affected by prohibited drugs, unless the identity of such person is approved in advance by a CCO.

  1. Not to remain in the presence of any person who you know, or ought to know, is intoxicated by alcohol and/or consuming alcohol to excess, unless the identity of such person is approved in advance by a CCO.

  1. 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.

  1. Report at your next contact with your CCO the formation of any friendship, domestic, romantic, sexual, or otherwise intimate relationship by you with any person.

  1. Advise a CCO or WA Police of every computer, telecommunication and/or electronic device capable of storing digital data or information, possessed, or used by you, whether or not it is capable of being connected to the internet, and the location of that device.

  1. Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in Condition 33, without prior approval.

  1. Enable device locking or password access of your computer, telecommunication and/or electronic devices and to not provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device referred to in Condition 33, or any online accounts, to any person other than a CCO or WA Police.

  1. Upon request, permit a CCO or WA Police at any location nominated by them, to access any computer, telecommunication and/or device capable of storing digital data, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device. This includes providing all screen name(s), username(s), and email addresses. Should any other entity be required to access a device for instances such as technical advice, approval must be sought in advance from a CCO.

  1. Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunication and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police.

[1] Application for Restriction Order filed 1 September 2021.
[2]The State of Western Australia v Matiay [2021] WASC 361.

[3] Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246, [10].
[4] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307, [28] (Steytler P & Buss JA).
[5] 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).
[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 17.

[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] Exhibit 1, Book of Materials; Exhibit 2, Supplementary Book of Materials.
[23] High Risk Serious Offenders Act 2020 (WA), s 7(3)(c).
[24] High Risk Serious Offenders Act 2020 (WA), s 7(3)(d).
[25] Exhibit 1, Book of Materials, Report of Ms Hasson, [9].
[26] Exhibit 1, Book of Materials, Criminal record of Mr Matiay, p 1 - 8; Exhibit 3, Updated Criminal Record of Mr Matiay.
[27] Exhibit 1, Book of Materials, Chronology of offending, p 9 - 14; Exhibit 3, Updated Criminal Record of Mr Matiay.
[28] Exhibit 1, Book of Materials, Transcript of proceedings in the Magistrates Court on 12 October 2022, p 442.
[29] Exhibit 1, Book of Materials, Report of Ms Hasson, [53] - [58].

[30] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307, [178] (Murray AJA).

[31] Exhibit 1, Book of Materials, Report of Ms Hasson, [52].
[32] Exhibit 1, Book of Materials, Community Supervision Assessment Report, p 601 - 609.
[33] Exhibit 4, Updated Community Assessment Report of Ms Aimee Goode dated 29 August 2023.
[34] Exhibit 5, Updated Community Assessment Report of Mr Carmichael dated 1 November 2023.
[35] Exhibit 1, Book of Materials, Proposed Treatment Options Report, p 610 - 613.
[36] Exhibit 1, Book of Materials, Proposed Treatment Options Report, [12].
[37] Exhibit 1, Book of Materials, Treatment Options Report, [7] - [8].
[38] Exhibit 2, Supplementary Book of Materials, p 1 - 5.
[39] Exhibit 1, Book of Materials, Report of Dr Wynn Owen, [9].
[40] Exhibit 2, Supplementary Book of Materials, p 4.
[41] Exhibit 1, Book of Materials, Report of Dr Wynn Owen, [48].
[42] Exhibit 1, Book of Materials, Report of Dr Wynn Owen, [82] - [124].
[43] Exhibit 1, Book of Materials, Report of Dr Wynn Owen, [115] - [116].
[44] Exhibit 1, Book of Materials, Report of Dr Wynn Owen, [117].
[45] Exhibit 1, Book of Materials, Report of Dr Wynn Owen, [121].
[46] Exhibit 1, Book of Materials, Report of Dr Wynn Owen, [129] - [131].
[47] Exhibit 1, Book of Materials, Report of Dr Wynn Owen, [141] - [148].
[48] Exhibit 1, Book of Materials, Report of Dr Wynn Owen, [163] - [164].
[49] Exhibit 1, Book of Materials, Report of Dr Wynn Owen, [165].
[50] Exhibit 1, Book of Materials, Report of Dr Wynn Owen, [171].
[51] ts 28 (8/11/2023).
[52] ts 28 (8/11/2023).
[53] Exhibit 1, Book of Materials, Report of Dr Wynn Owen, [172].
[54] ts 30 (8/11/2023).
[55] Exhibit 1, Book of Materials, Report of Ms Hasson, [1].
[56] Exhibit 1, Book of Materials, Report of Ms Hasson, [67].
[57] Exhibit 1, Book of Materials, Report of Ms Hasson, [69].
[58] Exhibit 1, Book of Materials, Report of Ms Hasson, [99].
[59] Exhibit 1, Book of Materials, Report of Ms Hasson, [99].
[60] Exhibit 1, Book of Materials, Report of Ms Hasson, [100] - [101].
[61] Exhibit 1, Book of Materials, Report of Ms Hasson, [118].
[62] Exhibit 1, Book of Materials, Report of Ms Hasson, [120] - [129].
[63] Exhibit 1, Book of Materials, Report of Ms Hasson, [142].
[64] Exhibit 1, Book of Materials, Report of Ms Hasson, [143].
[65] Exhibit 1, Book of Materials, Report of Ms Hasson, [148].
[66] Exhibit 1, Book of Materials, Report of Ms Hasson, [158].
[67] ts 49 (8/11/2023).
[68] Exhibit 1, Book of Materials, Report of Ms Hasson, [165].
[69] Exhibit 1, Book of Materials, Report of Ms Hasson, [165].
[70] Exhibit 1, Book of Materials, Report of Dr Wynn Owen, [163].
[71] High Risk Serious Offenders Act 2020 (WA), s 30(5).

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